The Right to Privacy

Justice Brandeis, in his dissenting opinion in Olmstead v. United States (1928), a wiretapping case, characterized privacy as “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men” {Olmstead, p. 478). Although the right to privacy, unlike other individual rights, is not expressly granted in the United States Constitution’s Bill of Rights, the U.S. Supreme Court has interpreted this right as part of the Fourth Amendment. This amendment guarantees in part: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (United States Constitution, Amendment IV). In addition, many states have laws ensuring privacy.

In 1985, the U.S. Supreme Court heard its first case addressing students’ Fourth Amendment rights in schools. In rendering its decision, the court noted that although students have privacy rights in schools, these rights must be balanced against school officials’ responsibility to maintain order and discipline {NewJersey v. T.L.O., 1985). The latter has often been interpreted as keeping schools safe.

Therefore, students are afforded a lower standard of privacy than individuals outside the school setting. While the Fourth Amendment generally requires a warrant based on probable cause, searches by school officials require neither. Thus, searches may be conducted if the educator has a reasonable suspicion to suspect that the search will result in evidence that a student has violated either the law or a school rule. When it is unclear how this standard applies, lower courts must determine legality. For example, as mentioned earlier in this book, in the years after the 1995 U.S. Supreme Court’s decision in New Jersey v. T.L.O., there were over 350 lower court decisions clarifying various aspects of the opinion (Stefkovich & Torres, 2012). In most of these cases, school districts won (Stefkovich &• Torres, 2003, 2012).

The apparent erosion of students’ rights has concerned legal and educational commentators, many of whom agree with Justice Stevens’ dissenting opinion in NewJersey v. T.L.O. (1985) where he notes:

The schoolroom is the first opportunity most citizens have to experience the power of government. Through it passes every citizen and public official, from teachers to policemen and prison guards. The values they learn there, they take with them in life. One of our most cherished ideals is the one contained in the Fourth Amendment: that the government may not intrude on the personal privacy of its citizens without a warrant or compelling circumstance. The Court’s decision today is a curious moral for the Nation’s youth.

(NewJersey v. T.L.O., 1985, pp. 385-386)

Over a decade later, Gartner (1997) questioned the price being paid for school discipline, especially when educators use such intrusive measures as strip-searching. Brooks contends: “Testing students who are not using drugs, are not likely to start using drugs, and face no special risks due to the nature of their activities hardly seems reasonable” (Brooks, 2004, p. 396) while Lewis predicts: “It may be only a matter of time until a court allows schools to invade students’ rights further and test for pregnancy pursuant to a ‘legitimate’ governmental interest” (Lewis, 2001, pp. 185-186).

It is Friedelbaum, however, who perhaps best captures this perspective on privacy when he concludes: “The most disappointing aspect of privacy rights, like liberty interests, is that they have been intermittently abandoned when social needs or the public good seem to require it” (Friedelbaum, 2002, p. 983). Trying to find a solution to this dilemma, he cites West (2001, pp. 1915-1919), who believes that legislators should take individual rights into account when they make laws in order to foster the “development of a moral society.”

Other scholars (James & Larson, 2004; Mawdsley, 2003) take a more conservative view, maintaining that court decisions allow officials the discretion they need to keep schools safe. For example, regarding random drug testing of students, Mawdsley asks the question: “How can school officials be opposed to drug use and not use a legal remedy in drug testing that is available to them?” (Mawdsley, 2003, p. 621). In turn, James and Larson (2004) view the court’s reduction of students’ individual rights and the granting of increased discretion to school administrators as a way to keep the student bodv safe and school officials accountable. They conclude:

In its simplest form, the structure of American constitutional law assumes that public policy will yield to individual rights. The notion of a contextual exemption for public educators is both extraordinary and ironic. It is not clear, at first glance, nor under sustained observation, why this judicial reluctance to interfere with legitimate educational needs should generate such a broad departure from constitutional norms.

It is, in fact, the breadth of the model that is its most significant feature, begging the question whether judicial accommodation of local educational preferences requires such a level of deference ...

(James & Larson, 2004, p. 90)

Russo and Gregory (1999) strike a middle ground in their approach. Observing the use of metal detectors, drug and alcohol profiles, surveillance technology, and random drug testing, the authors describe an “Orwellian milieu,” on one hand, and on the other hand, court decisions that support privacy rights. Regarding ethics, they come to the conclusion: “Arguments from an ethical base will be increasingly perceived as ideologically driven, civil libertarian politics, and not genuine, morally-based positions of principle” (Russo & Gregory, 1999, p. 644).

Given this charge to address “morally-based positions of principle,” this chapter presents five cases that illustrate the breadth, or lack thereof, of students’ (and their parents’) privacy rights and reflect the wide spectrum of court decisions addressing privacy issues. This chapter, perhaps more than others, offers us an insight into the rights of parents and how much (or little) control they have when confronted with laws that affect their children’s rights. As one reads these cases, they may want to consider whether parents should have more of a voice in school operations or is it better to leave this authority totally with the school? The better question, however, may be how to involve parent stakeholders and where to draw the line. As pointed out in our new case in this chapter, the Parents for Privacy court did draw a clear line in one specific area concluding that the Fourteenth Amendment’s Due Process Clause does not provide a fundamental parental right to determine bathroom policies of public schools {Parents for Privacy, 2020, citing Brown v. Hot, Sexy & Safer Prods., 1995).

In the first case, Gruenke v. Seip (2000), a male high school swim coach suspected a female team member was pregnant and was worried for her safety. After repeated denials by the student, several other students on the swim team encouraged the young woman to take a pregnancy test that the coach had purchased for her use. The student claimed that the pregnancy test and the events surrounding it violated her Fourth Amendment rights. The court ruled in favor of the student, maintaining that the coach had violated her privacy rights.

In Doe v. Pulaski County Special School District (2002), the court did not recognize a valid privacy claim. This case is included in this chapter, however, because it illustrates both the limitations of students’ privacy rights and how far school officials will go when they fear for the safety of students. The facts center around the expulsion of a middle school student who, influenced by rap music, wrote threatening letters aimed at an ex-girlfriend. The student was severely disciplined even though he never sent the letters (they were discovered by one of his friends who showed them to the girl), and the girl, even though initially frightened, had accepted the student’s apology.

Davenport v. YMCA (1999) turns to issues of privacy and equity. Here, a middle school girls’ basketball team, consisting of American Indian students, had won a tournament. The opposing team’s coach suspected that the girls were really boys, and the students were subjected to a personal search to determine their gender. Representing themselves in court, the students’ parents were unable to provide enough evidence to prove that these girls were the victims of discrimination.

We have added a decision to this chapter, Parents for Privacy v. Barr (2020), which focuses on themes of privacy and parents’ as well as students’ rights. This case involves a student who is biologically female but identifies with the male gender. The school has a well-developed plan that seems to meet this students’ needs but parents object on privacy and religious grounds because the biologically female transgender student is changing clothes in the boys’ locker room and using the boys’ bathroom. (For a comparison of contrasting rights on a similar topic, see Grimm v. Gloucester County School Board (2020) in Chapter 16. Grimm, an appeals court decision in the Fourth Circuit, approaches rights from the transgender student’s perspective and focuses on issues of equity.)

Invasion of the privacy rights of large groups of students often manifests itself in programs such as those involving random drug testing. In 1995, the U.S. Supreme Court in its Vernonia School District v. Acton (1995) decision determined that public school officials might randomly drug test student athletes. Seven years later, in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002), the high court extended this authority to include random drug testing of students involved in extracurricular activities. Subsequently, some lower courts have used these decisions to justify additional drug testing (Rossow & Stefkovich, 2014). This discussion focuses on one such opinion, Joye v. Hunterdon Central Regional High School Board of Education (2003). Here, students driving to school and parking on school grounds are drug tested.

Thus far, courts have not upheld drug testing of an entire student body. On the other hand, if one randomly drug tests students who are driving to school as well as student athletes and those involved in extracurricular activities, very few remain. In essence, most students can be drug tested. This case brings up important issues as to whether schools should impose on the privacy of the vast number of students not using drugs, whether such a preventive approach works, and the extent to which students need to relinquish their privacy rights to feel safe.

CASE STUDY 11.1: GRUENKE v. SEIP, 225 F.3d 290

(3rd Cir. 2000)

In the 1996-1997 school year, Leah Gruenke was a 17-year-old eleventhgrade student at Emmaus High School in Pennsylvania. According to its web site, the high school contains just over 2,000 students (Emmaus High School Web Site, 2005). Leah was a member of the school’s varsity swim team.

In December 1996, Leah’s father questioned the swim team coach, Michael Seip, about the fact that his daughter’s racing times were increasing. Coach Seip had noticed a change in Leah and commented that she appeared to be heavier in the water. He did not mention to the father another suspicion he had, that Leah was pregnant. In response to Leah’s apparent lack of stamina and slower racing times, Leah’s mother made an appointment for Leah with her physician. Leah’s doctor diagnosed a vitamin deficiency and prescribed dietary supplements. None of the tests performed were definitive regarding pregnancy. Leah and her mother discussed the possibility of pregnancy at this time but took no further steps to determine if she was pregnant.

In January 1997, Michael Seip began to further suspect that Leah was pregnant because, on several occasions during Christmas and New Year’s practices, Leah frequently had to take breaks to go to the bathroom, complained of being nauseated and also often mentioned that her energy' level was lower than normal. He also noticed her body shape changing. In February, Coach Seip spoke to his assistant coach, Kim Kryzan, about his concern and requested that she speak to Leah about “her change in performance.” He also spoke with her guidance counselor about the same topic. Kryzan approached Leah to talk, but Leah did not volunteer any explanation as to why she was becoming slower.

After Kryzan’s failed attempt, Seip discussed sex and pregnancy with Leah, but Leah emphatically declared that she was not pregnant. Leah was called in to talk to the guidance counselor, because of the information provided by Coach Seip, and to the school nurse because a teammate’s mother asked the school nurse to talk with Leah. During this same time span, other members of the swim team and their parents also began to suspect that Leah was pregnant. At various points, Leah declared to her teammates that this was not possible as she had never had sexual intercourse but also said that it was none of their business.

After various mothers approached Seip about getting Leah to take a pregnancy' test, one mother, Lynn Williams, bought a home pregnancy' test and was reimbursed by the defendant for her purchase. Coach Seip kept the test at school. Around March 5, 1997, two teammates, Abby Hochella and Kathy Ritter, asked Leah to take the pregnancy test. Leah refused. The next day, the two girls approached her again.

In response to the girls’ second attempt, Leah wrote a letter to Coach Seip saying that he had no right to make her take a pregnancy test because she wasn’t showing any signs of being pregnant and she had never had sexual intercourse. Coach Seip either did not accept the letter or did not open it. Either way, he did not read it. On the same day, Kathy approached Leah one more time and told her, again, according to Leah, that she would have to take the test or Mr Seip would take her out of the relay. Leah finally acquiesced and went with Kathy, Abby, and a third swimmer, Sara Cierski, to take the test in the bathroom of the locker room.

The test came back positive, so Sara suggested that Leah take another test to make sure. The girls went to the parking lot to get money from their parents and bought two more tests. Leah took them, and both came back negative. When Leah returned home that evening, she discussed the day’s events with her mother, who became upset. Leah also received a phone call from Abby, who suggested she take a fourth test and, if Leah wanted, Abby’s mother would take her to see a doctor. Leah went to school the next morning and took the fourth pregnancy test, which had been purchased by Abby’s mother, and that test came back negative.

After learning about the test results, Coach Seip asked a volunteer assistant coach, Dr Meade, an orthopedist, whether it was safe for pregnant swimmers to compete. Dr Meade said there was no medical reason why a pregnant swimmer should not race, so Coach Seip did not pull Leah from racing because of his suspicions. On March 10, 1997, Leah had an appointment with Dr Greybush. At that appointment, Leah found out that she was almost six months pregnant. She did not tell her mother or her teammates because she wanted to compete in the state’s tournament.

After giving birth, Leah next saw Coach Seip at a summer swim meet where she was swimming independent of a team and Coach Seip was present as the coach of Emmaus Aquatic Team, a private swimming league. Leah claims that Coach Seip told his swimmers not to sit near Leah or to talk with her. During the next school swim season, Leah said that she felt alienated because the coach never spoke with her and took her out of several swim meets.

Leah’s mother, Joan Gruenke, sued Michael Seip in August 1997, claiming four violations of Leah’s and her own rights: being forced to take the pregnancy test violated Leah’s Fourth Amendment rights; Leah’s and Joan’s right to familial privacy had been violated; Leah’s right to privacy had been violated; Leah’s right to free speech and association had been violated when the coach allegedly told his swimmers not to associate with her.

A federal district court granted summary judgment for the school district, stating that because pregnancy tests had not been mentioned in any previous case as a violation of Fourth Amendment rights, it was not a violation. Therefore, Coach Seip did not violate any rights by persuading Leah to take the test. The Third Circuit Court of Appeals overturned the district court’s opinion, maintaining that the law against illegal search and seizure provided a framework for what can be declared a breach of privacy; just because no previous case had dealt with pregnancy tests specifically did not mean they were automatically allowable. Thus, the appeals court found for Leah in that her Fourth Amendment rights had been violated; however, the court found that she had no basis for a First Amendment claim. Leah and Seip settled the case in November 2001, with Leah receiving $21,500 in damages under 42 U.S.C. §1983 (Civil Rights Act, 1871).

As to Leah’s familial rights’ claim, the appeals court ruled that even though there is a right at stake, Coach Seip is immune from §1983 damages on this claim in that the law as applied to the facts of this case was not clearly established at the time of the incident. In making this determination, the court noted:

Public schools must not forget that "in loco parentis” does not mean "displace parents.” It is not educators, but parents who have primary rights in the upbringing of children. School officials have only a secondary' responsibility and must respect these rights. State deference to parental control over children is underscored by the Court’s admonitions that "the child is not the mere creature of the State,” [citing Pierce v. Society of Sisters, 1925, p. 535] and that it is the parents’ responsibility to inculcate "moral standards, religious beliefs, and elements of good citizenship” [citing Wisconsin v. Yoder, 1972, p. 233].

(Gruenke v. Seip, 2000, p. 307)

Questions for Discussion

  • 1. How might one view this case and the court’s decision from a justice perspective?
  • 2. Was Leah treated in a caring manner? Why or why not?
  • 3. How might this case be viewed through the lens of critique, especially taking gender equity into consideration?
  • 4. What would the profession expect of Coach Seip? Assistant Coach Kim Krvzan?


  • 5. Through a best interests’ perspective, was Leah afforded her rights or shown her responsibilities? In this respect, how might this situation have been handled differently? Better? Was Leah afforded respect? Dignity? Why or why not?
  • 6. What would you have done in this situation if you were Coach Seip? Kim Krvzan?



SCHOOL DISTRICT, 306 F.3d 616 (8th Cir. 2002)

J. M. and K.G. were considered a “couple” during their seventh-grade year at Northwoodjunior High School. Like most middle school romances, J.M. and K.G. went through a series of break-ups, finally ending their relationship during the summer vacation between seventh and eighth grade, when

K. G. turned her attentions to another boy.

J.M. reacted with anger and frustration. A White boy from rural Arkansas,

J. M. liked to put forth a “tough guy” persona and claimed to be a member of the Bloods gang. Despite his bravado, he received a chamber of commerce award, did well in school, and did not constitute a disciplinary problem. Influenced by rap music by artists such as Eminem, J.M. wrote a letter, of which there were two copies, to K.G. The letter was filled with obscenities and violent references, including a desire to rape, murder, and sodomize her. The letter was graphic in its account of how J.M. wished to hide under

K. G.’s bed and kill her with a knife. After writing these letters, J.M. stored them in his bedroom. J.M. did not make any attempt or express any desire to mail the letters. They remained untouched in his bedroom for months until his best friend, D.M., found them during a visit. When D.M. discovered the letters, J.M. immediately grabbed them from D.M.’s hands. After some prompting however, he let D.M. read the letters. At that time, J.M. refused to give D.M. a copy to take home.

Sometime during the summer, K.G. learned that J.M. had written a lewd and violent letter to her. She confronted J.M., who eventually admitted that he had written a letter that discussed her murder. K.G. wanted the letter and, at her request, D.M. stole a copy of it from J.M.’s bedroom at the end of summer vacation.

On the second day after the start of the new school year, D.M. gave K.G. the letter during gym class. She read it and immediately started to cry and express her fear ofJ.M. There were other students around K.G., and one of those students, on learning of the contents of the letter, immediately reported the incident to the school resource officer. The officer went to the gym, and after seeing K.G. greatly disturbed, conducted an investigation. He then informed the school principal of his findings. Hearing about the school officer’s report, the principal conducted his own inquiry. Even though he was aware that D.M. had stolen the letter from J.M.’s bedroom without his consent, he recommended that J.M. be expelled for the remainder of the school year, based on a school policy that prohibits terroristic threats from one student to another.

After an appeal byJ.M. and his parents, a hearing officer recommended that the expulsion be changed to a suspension for one year, and that J.M.

be permitted to attend the district alternative school for the duration of the suspension. Thinking this punishment still too harsh, J.M. and his parents appealed the decision to the school board. Before his appearance in front of the board, J.M. had the opportunity to apologize to K.G. and her mother at the church they attended. At that time, K.G.’s mother and K.G. hugged J.M. in response to his apology. The school board followed the principal’s recommendation and meted out a harsher punishment. The board ordered J.M. expelled for the entire school year with no opportunity for any alternative educational placement. Even though a police report was hied at some point, the county refused to press charges.

J.M. and his mother Bled suit, claiming that the school violated J.M.’s First Amendment free speech rights when the board voted to expel him for the unsent letter. Ruling for the student, a federal district court concluded that J.M.’s letter was protected speech in that it was not a true threat because the student never intended to communicate the information in the letter. A divided panel of the federal circuit court agreed with the district court, but on appeal, the entire Eighth Circuit Court of Appeals heard the case and decided for the school district.

This appeals court determined that, despite J.M.’s claim to the contrary, the case was not moot because the student had already been expelled and that there remained a live controversy between the parties. In regard to the free speech claim, the court first determined the standard for a true threat, which is “a statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another” {Doe v. Pulaski County Special School District, 2002, p. 624). Next, the court looked to whether J.M. intended to communicate his alleged threat. In making its decision, the court stressed the importance of privacy issues, noting that the government has no business regulating what people may view or read in the privacy of their homes. As to this specific case, the court contended:

The government similarly has no valid interest in the contents of a writing that a person, such as J.M., might prepare in the confines of his own bedroom. After all, “our whole constitutional heritage rebels at the thought of giving government the power to control” the moral contents of our minds. [Citing Stanley v. Georgia, 1969, p. 565]. It is only when a threatening idea or thought is communicated that the government’s interest in alleviating the fear of violence and disruption associated with a threat engages.

{Doe v. Pulaski County Special School District, 2002, p. 624)

Based on the facts of the case, particularly that J.M. permitted K.G.’s best friend to read the letter and then discussed the contents of the letter in a phone conversation with K.G., the court determined that there was intent to communicate. The court then turned to the question of whether “a reasonable recipient would have perceived the letter as a threat” (Doe v. Pulaski County Special School District, 2002, p. 625). Here, the court determined that K..G. did feel threatened and that even though J.M. apologized, it came only after the school board expelled him. Thus, K.G. perceived this letter as a serious expression ofJ.M.’s threat to harm her.

Rendering judgment in favor of the school district, the appeals court, in its majority opinion, made the following observation:

Had we been sitting as the school board, we might very well have approached this situation differently, for it appears to us that the school board’s action taken against J. M. was unnecessarily harsh. Other options have occurred to us that could have furthered the district’s interest in protecting its students, as well as have punished J.M., but also have aided him in the severity and inappropriateness of his conduct. However, "it is not the role of federal courts to set aside decisions of school administrators, which the court may view as lacking a basis in wisdom or compassion ...” [Citing Wood v. Strickland, 1975, p. 326]. Those judgments are best left to the voters who elect the school board.

(Doe v. Pulaski County Special School District, 2002, p. 627)

Questions for Discussion

  • 1. How might one view this case and the court’s decision from a justice perspective?
  • 2. Was J.M. treated in a caring manner? Why or why not?
  • 3. How might this case be viewed through the lens of critique?
  • 4. What would the profession expect of the principal? The school board?
  • 5. Through a best interests’ perspective, was J.M. afforded his rights or shown his responsibilities? In this respect, how might this situation have been handled differently? Better? Was J.M. afforded respect? Dignity? Why or why not?
  • 6. What would you have done in this situation if you were the principal? A member of the school board?


LEXIS 29864 (8th Cir. 1999)

In December 1995, the YMCA in Rapid City, South Dakota hosted a girls’ basketball tournament for area schools. One of the teams was from the Loneman School. The Loneman School team advanced to the semifinals and beat the team from the Hermosa School. This meant the Loneman team would be playing for the championship title. However, when the players returned for the championship game, they were told of a complaint against the team by the Hermosa School’s coach. The coach had complained to officials that the Loneman team included boys. To resolve the dispute, a female YMCA volunteer and a female chaperone from the Loneman School took the eight girls into a nearby restroom. There, each of the girls demonstrated that she was indeed a female. All of the girls on the Loneman team were Oglala Sioux Native Americans aged 10 to 12, from the Pine Ridge Reservation where the school was located. Following the restroom incident, the Loneman School team played in the championship game and the tournament ended.

Two years later, the parents of the girls on the basketball team sued the Loneman School, the Custer School District where the Hermosa School is located, the YMCA, and the tournament director. The parents acted on their own behalf and as the guardians of the girls. They stated that the incident had humiliated the girls and caused depression and embarrassment. The parents brought forth state tort liability claims for invasion of privacy, negligence, intentional infliction of mental distress, mental anguish, and unlawful imprisonment and federal claims based on race, sex, and age discrimination. A Federal Court of Appeals for the Eighth Circuit granted summary judgment in favor of the school district, maintaining that the tort claim should have fallen under federal law because the Loneman School was operated under the auspices of the Bureau of Indian Affairs. As to the discrimination claims, the court maintained that the students lacked enough evidence to support a claim.

Questions for Discussion

  • 1. How might one view this case and the court’s decision from a justice perspective?
  • 2. Was the Loneman team treated in a caring manner? Why or why not?
  • 3. How might this case be viewed through the lens of critique?
  • 4. What would the profession expect of the Loneman School officials? The Hermosa School coach?
  • 5. Through a best interests’ perspective, were these students afforded their rights? Were they afforded respect? Dignity? Why or why not? What message did the school’s actions and the court decision send to these students?
  • 6. What would you have done in this situation if you were the Hermosa coach? An official from the Loneman School?


1210 (9th Cir. 2020)


3d 1075 (D. Or. 2018)

This case, on appeal to the Ninth Circuit involved current and former high school students, their parents, and organizations such as “Parents for Privacy” who claimed that Oregon’s Dallas School District No. 2’s policy permitting transgender students to use restrooms, locker rooms, and showers that match their gender identity, rather than their biological sex at birth, violated the law. Alleged violations include: (a) the Fourteenth Amendment’s right to privacy and its Due Process clause which ensures that parents have a fundamental right to care for, nurture, and have custody of their children without state hindrance; (b) sex discrimination under Title IX of the Education Amendments of 1972; and (c) the free exercise of religion clause under the First Amendment of the U.S. Constitution. These parties sued the school district, United States Attorney General William Barr, the Department of Justice, U.S. Secretary of Education Betsy DeVos, and the U.S. Department of Education.

In this case, a high school student, who was born and remained biologically as a female identified as male. Recognizing that transgender students need a safe non-discriminatory environment and that exclusion from privacy facilities matching the student’s gender identity can cause detrimental physical and mental health effects, the school district developed a Student Safety Plan to accommodate the needs of this student (Student A) and those of future transgender students. The plan permitted Student A the use of male locker rooms, showers, and bathrooms. The plan also provided training for all staff on Title IX requirements. In addition, teachers would give lessons to students on harassment and anti-bullying. Finally, the physical education (PE) teacher would be the first to enter the locker room and the last to leave and Student A’s locker would be within sight of the PE teacher’s office.

In accordance with the Safety Plan, Student A began changing clothes in the boys’ locker room and using the boys’ bathrooms. The former caused several cisgender white male students “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress” (p. 1218) because they had to undress in the same room. There were privacy stalls in the bathroom, but these stalls had large gaps through which students could be inadvertently seen as they undressed. Some boys were tardy to class because they used more distant bathrooms to avoid this student. Some cisgender female students reported stress and anxiety based on their fear that this situation might someday be reversed (i.e., a transgender female who remained biologically male might use their bathrooms and locker rooms). Finally, parents claimed that the Student Safety Plan interfered with their moral and religious teaching regarding modesty and nudity, thus impeding their right to care for their children and their free exercise of religion.

On February 12, 2020, the Ninth Circuit Court of Appeals rendered its decision for the transgender student and parents, stating at the outset that:

... it is not our role to pass judgment on the school district’s policy or on how the school district can best fulfill its duty as a public educational institution. We are asked only to resolve whether the school district’s policy violates Title IX or PlaintifFs constitutional rights, (p. 1217)

This court determined that the Fourteenth Amendment’s right to privacy does not include avoiding every risk of intimate exposure to or by a transgender person (Caribbean Marine Serv. Co. v. Baldridge, 1988); the district’s Student Safety Plan for the transgender student does not discriminate on the basis of sex under Title IX; and the Fourteenth Amendment’s Due Process Clause does not provide a fundamental parental right to determine bathroom policies of public schools (Brown v. Hot, Sexy & Safer Prods., 1995). In this regard, the court distinguished the privacy rights in this situation from more authority-driven coercive cases such as York v. Story (1963), where a male police officer took and circulated nude photographs of a female victim. In addition, the parents failed in their claim that the district’s plan was not neutral towards religion. The court concluded that the district’s plan was rationally related to legitimate governmental interests and did not target religious conduct (Church of the Lukumi Babalu Aye v. City of Hialeah, 1993).

Questions for Discussion

  • 1. How might the ethic of justice be applied to this case? Was the outcome fair for Student A? For the students who brought the claim? For the parents?
  • 2. Were all the students treated in a caring manner? Why or why not?
  • 3. Under the ethic of critique, do you think the outcome of this decision would have been different if the situation were reversed, i.e., if Student A had been a biological male who identified as female and undressed in the girls’ locker room? Why or why not?
  • 4. What would the profession expect of the school leaders making these decisions? Do you believe the school’s policy was a sound one? Explain your answer. What would you have done if you were the school principal in this case? The school superintendent?

5. Through a best interests’ perspective, have school officials honored the rights of the students and their parents? How might this situation have been handled differently? Better? Were all the students shown respect? Dignity? Why or why not?


Hunterdon Central Regional High School, located in Flemington, New Jersey, has a population of 2,500 students in grades 9 through 12. School officials take the matter of underage drinking and the use of illegal drugs seriously. Since 1987, they had undertaken measures to deter these illegal activities and to support students with substance abuse problems. At the time of this incident, they had employed three counselors through a Student Assistance Program (SAP) to assist students and their families.

In the past, school officials occasionally searched student lockers and conducted sweeps of the school, using canines to sniff for drugs. These sweeps were conducted in cooperation with the county prosecutor. In 1996, the school began a suspicion-based program of drug testing, targeting students suspected of illicit drug or alcohol use. These searches and testing were not challenged in this case.

Despite the abovementioned measures, Lisa Brady, the school’s principal, continued to have concerns about illicit drug and alcohol use by the student population. She based these concerns, in part, on anecdotal evidence from coaches, teachers, and administrators. She claimed to have first-hand knowledge of two students snorting heroin on school property. The results of the suspicion-based testing indicated that 90% of those tested were positive.

Principal Brady engaged the Rocky Mountain Behavioral Science Institute, Inc. (RMBSI) of Fort Collins, Colorado, to conduct a survey of the student population, using a questionnaire. This survey, conducted in 1996-1997, revealed that over 40% of students in grades 10 through 12 had “been drunk” in the past year and 33% had used marijuana. Over 89% of all students had experimented with alcohol. Use of drugs such as cocaine, hallucinogens, and inhalants ranged from 12% to 29%, depending on the grade and substance.

Based on the results of the survey, the board instituted its first random drug-testing program in July 1997. This program was conducted only on students participating in the school’s athletic programs and required parental or guardian consent. Between 1998 and 2000, over 1,000 students were eligible for the test. The school randomly selected 100 students a year for actual testing and, of these, approximately 5% tested positive for drug or alcohol use.

After the random drug-testing program was implemented, the board held a public meeting to respond to questions from students and their parents. David Evans, a parent and an expert on teen substance abuse, answered questions. Evans suggested that the board establish a task force to look at the current testing program and make recommendations for any necessary revisions. The board appointed David Evans as the task force’s chair and Joan Greiner as its vice chair. Joan Greiner was a parent, a drug testing opponent, and later a plaintiff in this case. The task force also included representatives from stakeholder groups such as parents, students, the booster club, the SAP, school administrators, teachers, coaches, and drug testing experts.

The task force held meetings between January and November 1998. During these meetings, they investigated research and police data on alcohol and substance use by teens and heard comments from various members of the school staff, including coaches, administrators, and the school nurse. They also solicited feedback from parents through letters and at a public meeting held in October 1998.

The school board received the task force’s report and so held public meetings. The board engaged R.MBSI to conduct a follow-up survey in the 1999-2000 school year. This second survey indicated that drug use was down in most categories and it was the board’s belief that the random drugtesting program was partly responsible. However, marijuana use among senior students was up slightly, and the board believed that there continued to be unacceptable levels of drug use among the general student population.

In September 2000, at the recommendation of the task force, the school board implemented an expanded drug-testing policy, which allowed for random drug testing of all students engaged in extracurricular activities and those with school parking permits. It defined as “extracurricular” any non-credit activities in which students participated. The policy required both the student and his or her parent or guardian to sign a consent form. The form authorized the Hunterdon Central Regional High School District to conduct a urine and saliva or breath specimen test on site and to release the test results to designated school district personnel. As of January 2001, 866 consent forms had been signed.

The policy set out the consequences for students who test positive for drugs or alcohol. For a first infraction, the student would be suspended from participating in the sport or extracurricular activity and from parking privileges. The student would have to attend a five-day education program and resubmit a specimen for testing, which might not indicate the presence of drugs or alcohol.

For a second infraction, the student would be suspended from the sport or activity for 60 days and would lose parking privileges. The student would have to attend the five-day education program again, as well as a minimum of 10 counseling sessions. He or she would also have to test negative for drugs and alcohol at the end of the suspension period. The student would also be subject to periodic, unannounced testing in the future. Hunterdon Central’s policy was to treat students’ test results as health records, which are kept confidential. Results were not to be shared with law enforcement.

Joan Greiner contended that the policy interfered with her rights as a parent to raise her daughter as she thinks best and to “teach her the personal responsibility she needs as a young adult” (Joye v. Hunterdon Central Regional High School Board of Education, 2003, p. 632). She also indicated that there was no evidence of drug or alcohol problems in the school specifically applying to those students participating in sports, extracurricular activities, or those with parking permits. The school board’s president responded that the board had taken the steps necessary to ensure that the policy balanced fairly students’ privacy rights with school officials’ obligations to protect students.

In August 2000, three sets of parents, includingjoan Greiner, filed suit, challenging the constitutionality of the school’s policy according to the Fourth Amendment of the United States Constitution and Article I, paragraph 1, of the New Jersey Constitution, which has language almost identical to the federal law. A New Jersey state trial court ruled for the parents and thus invalidated the program. A state appeals court reversed the decision, ruling for the school district and upholding the program as legal. Parents appealed to the New Jersey Supreme Court, which also upheld the program as legal.

In rendering its decision, this court looked to the need for individualized suspicion. To justify the intrusions of students’ privacy without having individualized suspicion, the drug-testing program had to pass a specialneeds analysis. Here the court determined: “the ‘special need’ in this case derives from the unique public-school environment that already results in a relaxed set of search-and-seizure rules” {Joye v. Hunterdon Central Regional High School Board of Education, 2003, p. 641). Accordingly, the court stressed the duty of school officials to maintain order and a safe environment in the schools. Having said this, the Joye court also emphasized:

No part of our analysis is intended as an endorsement of the Board’s decision on policy grounds. Whether the Board’s program reflects a wise or appropriate expenditure of resources is for the Board and its local constituents to determine. Our sole task is to evaluate the Board’s action within the specialneeds framework as articulated by our federal counterpart and as applied by this Court.... Having considered the affected students’ diminished expectation of privacy, the sufficient limitations on the obtrusiveness of the testing, and the substantial governmental interest in maintaining a school environment free of drugs and alcohol, we find that Hunterdon Central’s program passes muster under Article I, paragraph seven of the New Jersey Constitution.

(Joye v. Hunterdon Central Regional High School Board of Education, 2003, p. 607)

Agreeing with Justice Breyer’s concurring opinion in Earls as to the importance of wide community support for school-based drug and alcohol testing programs, the New Jersey high court added a disclaimer:

We do not, however, suggest that a majority of citizens in any one community can bend the constitution to their collective will. Rather, we merely follow prior case law that instructs us to consider society’s viewpoint when evaluating whether an expectation of privacy is entitled to enhanced protection in a given circumstance.... According to the Board’s president, no parents of students eligible for testing (aside from plaintiffs) have expressed opposition to the school’s program. Although parental sentiment is not controlling, we accord it some weight, especially within the public-school context in which school officials often assume a parent-like role.

(Joye v. Hunterdon Central Regional High School Board of Education, 2003, pp. 651-652)

The court saw no legal problem with testing such large numbers of students. On the other hand, it also did not see its decision as permission for all school districts to adopt similar practices, noting that:

We leave open the possibility that a future program will not pass constitutional muster either because the school’s chosen method of specimen collection is overly intrusive in view of alternative methods, or because the underlying drug and alcohol use at the particular school simply is inadequate to justify it.

(P. 627)

As to concerns about the message sent to students, the court notes:

The dissent further contends that upholding Hunterdon Central’s program somehow reflects bad civics. So long as its program is reasonable, we leave it to the Board and its local constituents to determine what “lesson’’ the program might convey to students. It might well be that this case will instill in students an appreciation of the ride of law, namely, that officials are permitted to maintain a testing policy not on some whim, but only after they have justified it under constitutional standards. Or the lesson might be that there are consequences to illegal drug and alcohol use, both in terms of a student’s health and his or her ability to participate in selected activities. In any event, our only task is to evaluate the program’s constitutionality, not to substitute our value system for that of the Board in respect of the broader public policy underlying its program.

  • (Joye v. Hunterdon Central Regional High School Board of Education,
  • 2003, p. 616)

Questions for Discussion

  • 1. How might one view this case and the court’s decision from a justice perspective?
  • 2. Were these students treated in a caring manner? Why or why not?
  • 3. How might this case be viewed through the lens of critique?
  • 4. What would the profession expect of Principal Brady? The board president?
  • 5. Through a best interests’ perspective, have school officials afforded students their rights? Shown them their responsibilities? In this respect, how might this situation have been handled differently? Better? Were the students who were tested afforded respect? Dignity? Why or why not? Do you agree with the court regarding the lessons that students may have learned from this situation?
  • 6. What would you have done in this situation if you were Principal Brady? The board president?


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