Can a School Require a Drug Test at an Expulsion Hearing?

Attorney Answer

A school board hearing is not a courtroom, and it cannot order a student into a drug test the way a judge can. What usually happens instead is that testing is offered — as a condition of readmission or as something the family volunteers — and that is where the danger sits, because a result you agree to produce becomes evidence against the student.

Students do have reduced privacy protection at school. In Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002), the Supreme Court held that given students' diminished expectation of privacy in the school setting, suspicionless drug testing of students can be constitutionally reasonable under the Fourth Amendment. But read what Earls actually approved: a written, programmatic policy applied to students who chose to participate in competitive extracurricular activities. It did not approve testing imposed on one particular student as part of a disciplinary or expulsion proceeding, and no one should tell you that it did. The fit to an expulsion hearing is partial at best.

In practice, whether testing can be required of your child depends on the district's own written policy and on what the district is asking for — evidence to support the charge, or a condition of coming back. Those are very different, and they should not be allowed to blur together in a hallway conversation.

What you can do

1. Ask for the district's written drug-testing policy and its student code of conduct in writing, before you agree to anything. If the district cannot point to a written policy authorizing the test, that answer is itself useful. 2. Ask, in writing, one specific question: is this test a condition of readmission, or is it being sought as evidence in the expulsion proceeding? Get the answer in writing too. 3. Do not consent to a test until you know who receives the result, how long it is kept, and whether it can be shared with law enforcement. A test offered as a way to help can end up in the hearing record and beyond it. 4. Request, in writing, the hearing notice, the specific charge, the evidence the district will present, and the witness list, and ask what the policy says about your right to present evidence and question witnesses. 5. If your child receives special education services or has a 504 plan, ask the district in writing whether a manifestation determination review is required before an expulsion can proceed. 6. Bring a lawyer or an advocate to the hearing if you possibly can. The record made at an expulsion hearing follows the student, and it is much harder to fix afterward than to get right the first time.