construing Colorado Constitution article II, section 7 and finding suspicionless searches by the University of Colorado were unconstitutionalSummary of this case from York v. Wahkiakum School District No. 200
Decided November 1, 1993
Certiorari to the Colorado Court of Appeals
Cooper Kelley, P.C., Thomas B. Kelley, John R. Mann, Denver, Colorado
Robert F. Nagel, University of Colorado School of Law, Boulder, Colorado
Richard A. Tharp, Beverly Fulton, Office of University Counsel, Denver, Colorado Attorneys for Petitioners
American Civil Liberties Union, David H. Miller, Denver, Colorado
Norton Frickey Associates, Judd Golden, Boulder, Colorado, Attorneys for Respondents
We granted certiorari in order to determine whether random, suspicionless urinalysis-drug-testing of intercollegiate student athletes by the University of Colorado, Boulder (CU), violates the Fourth Amendment to the United States Constitution or Article II, Section 7, of the Colorado Constitution. Following a bench trial conducted in August of 1989 in which a class of current and prospective CU athletes challenged the constitutionality of CU's drug-testing program, the Boulder County District Court permanently enjoined CU from continuing its program. The trial court found that CU had not obtained voluntary consent from its athletes for such testing, and it declared such testing unconstitutional under both the federal and state constitutions. The Colorado Court of Appeals generally affirmed. See Derdeyn v. University of Colorado, 832 P.2d 1031 (Colo.App. 1991). We agree with the court of appeals, see id. at 1034-35, that in the absence of voluntary consents, CU's random, suspicionless urinalysis-drug-testing of student athletes violates the Fourth Amendment to the United States Constitution and Article II, Section 7, of the Colorado Constitution. We further agree, see id. at 1035, that the record supports the finding of the trial court that CU failed to show that consents to such testing given by CU's athletes are voluntary for the purposes of those same constitutional provisions. Accordingly, we affirm the judgment of the court of appeals.
Strictly speaking, the issue before us is whether the University of Colorado's drug-testing program violates the Fourth Amendment to the United States Constitution as made enforceable against the states through the Due Process Clause of the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25, 27-28 (1949). The parties have agreed that the University of Colorado, Boulder, is a state institution, and that the actions of the individual defendants constitute state action for all purposes relevant to this case.
Recently, in City and County of Denver v. Casados, 862 P.2d 908, (Colo. 1993), we rejected a Fourth Amendment facial challenge to an Executive Order of the Mayor of the City and County of Denver establishing a program for mandatory blood- and urinalysis-drug-testing of city employees based on reasonable suspicion of alcohol or drug use or impairment. CU's program at issue here, in contrast, provides in some instances for random testing of intercollegiate student athletes without the necessity for suspicion, reasonable or otherwise, and in others for testing based on criteria that the trial court found to be incapable of indicating drug use to any degree.
CU began a drug-testing program in the fall of 1984 for its intercollegiate student athletes. CU has since amended its program in various ways, but throughout the existence of the program participation was mandatory in the sense that if an athlete did not sign a form consenting to random urinalysis pursuant to the program, the student was prohibited from participating in intercollegiate athletics at CU.
In written descriptions, CU itself has always characterized its drug-testing program as "a mandatory program of drug education, testing, and counseling/rehabilitation."
CU's drug-testing program originally required a urine test for certain proscribed drugs at each intercollegiate athlete's annual physical and also required random urine tests thereafter. Counseling was mandated following a first positive result. The penalty for a second positive included a seven-day suspension from participation in intercollegiate athletics, and the penalty for a third positive included a minimum one-year suspension. No specific monitoring procedures were prescribed for the collection of the urine samples, and two students testified that during this phase of the program they were not monitored during the act of urination. According to CU's 1984 Form describing the program, all test results were sent to the "Team Physician." The intercollegiate student athletes also were required to give their consent to releasing test results to
The proscribed drugs as specified by CU in its 1984 form entitled "UNIVERSITY OF COLORADO INTERCOLLEGIATE ATHLETICS DRUG EDUCATION PROGRAM" (the 1984 Form) were amphetamines, barbiturates, cocaine, methaqualudes, opiates, morphine, codeine, PCP (angel dust) and analogues, and tetrahydrocannabinol (THC or marijuana).
See supra note 4.
Testing was performed by an independent, commercial laboratory.
the Head Athletic Trainer at [CU]; my parent(s) or legal guardian(s) or spouse; the head coach of any intercollegiate sport in which I am a team member; the Athletic Director of [CU]; and the Drug Counseling Program at the Wardenburg Student Health Center.
The 1984 Form gave no general or specific assurances of confidentiality.
Sometime thereafter, CU amended its program for the first time. The penalty for a first positive was changed to include suspension for "the current competitive season," and the penalty for a second positive was changed to include permanent suspension from "any activity sponsored by the University of Colorado Athletic Department." Following a first positive, the athlete was also required successfully to complete a substance abuse rehabilitation program as a condition for further participation in intercollegiate athletics. The first amended program also provided that the "collection of the specimen will be observed [sic], and the athlete may be asked to disrobe in order to protect the integrity of the testing procedure." Test results were still sent to the "Team Physician," but following a first positive, the first amended program stated:
CU amended its original program three times, and the third amendment became effective on August 14, 1988. An official from CU testified that the program was reviewed annually in order to determine if changes in the program should be made. However, with the exception of the third amended program, the record is unclear on when, exactly, the amended programs took effect.
One male student athlete testified that during this phase of the program the trainer would hand you a bottle, a screw cap bottle and you and the trainer would adjourn to a restroom where the trainer would physically observe you filling up the bottle with your urine. . . . . I mean that the trainer would actually watch you urinate, you weren't allowed to turn your back, talking about full frontal exposure of your body. A female student athlete testified: Some female trainer had to be in the restroom watching you, in the actual stall watching you while you went to the bathroom. Another female student athlete testified: You came into the track office and the trainer would come in and post all the peoples' names that were on the team. . . . . That is what we called it, after a while, "the pee team". You kind of got flippant about it after a while because it was so embarrassing and everybody had to do it so we made jokes about it so that, you know, it wouldn't be as bad. Then, you would go into the bathroom with one of the trainers because at that time the training room was in the track office so you got one of the trainers and you went to the bathroom and she gave you a coke cup and you peed in the cup with the door open so she could watch and then you take your urine sample and you pour it in the bottle and screw the bottle up and she writes your number or whatever on it and then takes it away.
[T]he Team Physician will inform the Head Athletic Trainer. The Head Athletic Trainer will advise the Athletic Director. The Athletic Director will notify the athlete's Head Coach(es). Additionally, the athlete will be required to . . . participate in a conference telephone call between the athlete, his/her parent(s) or legal guardian(s) of the positive test results.
CU still gave no general or specific assurances of confidentiality of test results.
CU's second amended program changed the penalty for a first positive from suspension for "the current competitive season," to suspension for "a twelve month period." In all other relevant respects the program remained unaltered. CU's third amended program, which became effective August 14, 1988, contained numerous changes. First, it added alcohol, "over-the-counter drugs," and "performance-enhancing substances such as anabolic steroids" to the list of drugs for which students could be tested. Second, the term "athlete" was defined to include "all student participants in recognized intercollegiate sports, including but not limited to student athletes, cheerleaders, student trainers and student managers." Third, random "rapid eye examination (REE)" testing was substituted for random urinalysis, and a urinalysis was performed only after a "finding of reasonable suspicion that an athlete has used drugs," and at the athlete's annual physical examination. Failure to perform adequately on an REE was considered "prima facie reasonable suspicion of drug use [except with regard to steroids]," and the student was required to provide a urine specimen for testing purposes if the student did not perform adequately on the REE. In addition, if a student exhibited "physical or behavioral characteristics indicating drug use including, but not limited to: tardiness, absenteeism, poor heath [sic] habits, emotional swings, unexplained performance changes, and/or excessive aggressiveness," this was also considered reasonable suspicion of drug use, and the student was required to take a urine test. Fourth, urine samples were to be collected "within the Athletic Department facilities," and athletes were "directed to provide a urine specimen in a private and enclosed area" while a monitor remained outside. The monitor would then receive "the sample from the athlete and check the sample for appropriate color, temperature, specific gravity and other properties to determine that no substitution or tampering has occurred." Fifth, the athletes were required to give their consent to releasing test results to
the Head Athletic Trainer at [CU]; my parent(s) or legal guardian(s), if I am under the age of 21; the head coach of any intercollegiate sport in which I am a team member; the Athletic Director of [CU]; my work supervisor (if applicable) and the Drug Counseling Program at the Wardenburg Student Health Center.
Finally, although CU still gave no general assurances of confidentiality, it did specify in its third amended program that communications between an athlete and physicians at Wardenburg Student Health Center would be confidential. In October of 1986, intercollegiate student athletes at CU filed a class action suit in Boulder County District Court challenging the constitutionality of the drug-testing program as it then existed and seeking declaratory and injunctive relief. Named as defendants were CU, the board of regents of CU, Judith Albino as president of CU, and William Marolt as athletic director, department of intercollegiate athletics. When CU subsequently amended its program, an issue arose as to which version of CU's program, if any, could be challenged at trial. CU argued that the case was moot because it "would be futile to discuss the merits of a drug-testing policy the University has no intention of reinstating." However, by minute order, the trial court found that CU and the other defendants have "refused to agree that they will not return to the policy which was initially challenged in this class action. In fact, defendants have indicated that there are circumstances under which they would return to that policy." The trial court concluded "[t]herefore, . . . the legality of [CU's] prior drug-testing policy is not moot," and it noted that it had "previously ruled that plaintiffs are to amend the complaint to add allegations concerning the new policy." The plaintiffs filed their amended complaint on March 16, 1989, the same day that the trial court signed the minute order. In their amended complaint, the plaintiffs sought relief from CU's random drug-testing programs, past, present, and future. Accordingly, at issue in the ensuing trial was the constitutionality of every version of CU's drug-testing program.
A class was certified by stipulation on January 27, 1987. The class consists of: Those present and prospective undergraduate student athletes who are or will be subject to the University of Colorado intercollegiate athletic department's drug education program as a condition of participation in the University of Colorado intercollegiate athletic program limited as follows: Those present undergraduate student athletes who have never tested positive or have been subject to discipline or sanction as a result of a positive test result; and those present student athletes who, although having executed waivers, consents or agreements to participate in the University of Colorado's drug education program, object to the program as being an unconstitutional condition of participation; and lastly, those prospective undergraduate student athletes who will execute waivers, consents or agreements to participate in the University of Colorado's drug education program, but who object to the program as being an unconstitutional condition of participation.
Based on allegations in the plaintiffs' complaint, the then existing program was the first amended program, according to which students were directly observed during the act of urination and the penalty for a first positive included suspension for the current competitive season.
Following a bench trial conducted in August of 1989, the trial court entered its written findings of fact, conclusions of law, and order and judgment. The trial court found that "[o]btaining a monitored urine sample is a substantial invasion of privacy." It found that the
REE does not function, in any sense, as "reasonable suspicion" of drug use. Because of its disastrous ability to predict drug use, it functions more as an avenue to inject arbitrary judgments into an otherwise random selection of students for testing.
Similarly, it found that "[l]ike the REE, the [other] reasonable suspicion criteria [as set forth by CU] are incapable of indicating drug use to any degree" (emphasis in original). The trial court also found that while
the University labels the program as a "Drug Education Program", there is little education. . . . There is no ongoing educational component of the program. Testing is clearly its major focus.
Finally, the trial court found that there
is no evidence that the University instituted its program in response to any actual drug abuse problem among its student athletes. There is no evidence that any person has ever been injured in any way because of the use of drugs by a student athlete while practicing or playing a sport.
The trial court explained that the governmental interests asserted by CU in favor of its program were "compliance with NCAA required tests, a concern for the students' health and safety, and a need to promote fair competition." Although the trial court agreed that the goals embodied by these interests were commendable and valid, the trial court ruled that under Skinner v. Railway Labor Executives' Association, 489 U.S. 602 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), they were not sufficiently compelling as governmental interests to outweigh an intrusion on the reasonable privacy expectations of students that is "clearly significant." Therefore, the trial court concluded, CU's random urinalysis-drug-testing of athletes without individualized suspicion violates the Fourth Amendment's guarantee that persons shall be secure against unreasonable searches and seizures conducted by the government. The trial court also held that "[n]o intrusion, however slight, can be deemed `reasonable' for purposes of the Fourth Amendment where the intrusion will not and cannot reveal the information sought," and that therefore, the "rapid eye exam is an unconstitutional intrusion under the `reasonableness' standard of the Fourth Amendment." Similarly, because it found that the other reasonable suspicion criteria relied upon by CU were incapable of indicating drug use to any degree, the trial court held that "failure makes `unreasonable' [under the Fourth Amendment] any search [e.g., urinalysis] conducted pursuant to those criteria."
In Skinner, the United States Supreme Court upheld suspicionless blood- and urinalysis-drug-testing of railroad employees involved in certain types of train accidents. Id. at 609, 634. Such testing was mandated by regulations promulgated by the Federal Railroad Administration under the authority of the Federal Railroad Safety Act of 1970, 84 Stat. 971, 45 U.S.C. § 431(a). Skinner, 489 U.S. at 606. The Court found that the government's interest in suspicionless testing of "railroad employees engaged in safety-sensitive tasks," id. at 633, was "compelling," id. at 628, 633, because employees "subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences," id. at 628. On the other hand, the Court found that such employees had diminished expectations of privacy for the purposes of the Fourth Amendment because they "participat[ed] in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees." Id. at 627. Noting also that the regulations in question "do not require that [urine] samples be furnished under the direct observation of a monitor," id. at 626, the Court concluded that the suspicionless searches were reasonable under the Fourth Amendment because "the Government's compelling interests outweigh[ed the employees'] privacy concerns," id. at 633.
In Von Raab, the United States Supreme Court upheld suspicionless urinalysis-drug-testing of United States Customs Service employees seeking transfer or promotion to positions in which they would be directly involved in the interdiction of illegal drugs, or would be required to carry firearms or to handle classified information that is truly sensitive. Id. at 659, 677-79. The Court found that the government's interest in the suspicionless testing of such employees was "compelling," id. at 672, 674, 677, "[i]n light of the extraordinary safety and national security hazards that would attend the promotion of drug users to positions that require the carrying of firearms or the interdiction of controlled substances," id. at 674, or the handling of truly sensitive, classified information, id. at 677. On the other hand, the Court found that such employees had diminished expectations of privacy for the purposes of the Fourth Amendment because "[u]nlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity," id. at 672, and "[m]uch the same is true of employees who are required to carry firearms," id., or who are already subject to background investigations because of their access to government secrets, id. at 677-78. The Court concluded that the suspicionless searches were reasonable under the Fourth Amendment because the "Government's compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation's borders or the life of the citizenry outweigh the privacy interests of those who seek promotion to these positions," id. at 679, although the Court remanded for further factual determinations on the issue of which employees are likely to gain access to "truly sensitive information," id. at 677, 679.
For somewhat different reasons, the trial court also held that CU's random urine and REE testing, as well as its urine testing based on "reasonable suspicion" generated by REE testing or other stated criteria, violated Article II, Section 7, of the Colorado Constitution.
The fact that CU's athletes signed forms consenting to random drug testing did not alter the trial court's conclusion. Rather, the trial court found that CU failed to demonstrate that the consents given by the athletes were voluntary, and also held that "no consent can be voluntary where the failure to consent results in a denial of the governmental benefit."
On these bases, the trial court declared that CU's drug-testing program was unconstitutional. It permanently enjoined CU from "requiring any urine samples from student athletes for the purposes of drug testing, whether those tests occur on a random basis or as a result of the `reasonable suspicion' criteria stated," and it permanently enjoined CU from "requiring student athletes participation in the Rapid Eye Exam procedure." In addition, the trial court held that "reasonable suspicion" is not the appropriate standard to warrant urinalysis-drug-testing of athletes by CU, and that such testing is impermissible absent probable cause under either the Fourth Amendment or Article II, Section 7, of the Colorado Constitution.
The Colorado Court of Appeals generally affirmed. See Derdeyn, 832 P.2d 1031. The court of appeals explained that CU did not appeal the trial court's findings relating to the REE, but only those relating to urinalysis. Id. at 1033. It held in part II of its opinion that CU's urine testing program was unconstitutional under the Fourth Amendment and under Article II, Section 7, of the Colorado Constitution, id. at 1035, and it affirmed the trial court's permanent injunction prohibiting CU from testing its athletes pursuant to its original program or any of its amended programs, id. In addition, although the court of appeals did not disturb the trial court's finding that CU's stated "reasonable suspicion" criteria were wholly ineffective, or the trial court's ruling that mandatory urinalysis based upon such criteria is unconstitutional, it held in part IV of its opinion that objective, reasonable, individualized suspicion of drug use could in some circumstances warrant mandatory drug testing of intercollegiate athletes by CU. Id. Accordingly, the court of appeals reversed the order of the trial court only insofar as it prohibited all testing not premised on probable cause. Id. at 1035-36.
It is not perfectly clear whether the court of appeals based this holding in part IV only on the Fourth Amendment, or whether it based it on the Fourth Amendment and Article II, Section 7, of the Colorado Constitution. On the one hand, the court of appeals cites only two cases in support of this holding, specifically, In re P.E.A., 754 P.2d 382 (Colo. 1988) (search of a public high school student's car was not unconstitutional), and New Jersey v. T.L.O., 469 U.S. 325 (1985) (search of a public high school student's purse did not violate Fourth Amendment standard of reasonableness). Furthermore, P.E.A. never cites or refers to the Colorado Constitution; it relies very heavily on T.L.O., and it states that "[t]he focal issue in this case is whether P.E.A.'s fourth amendment rights were violated when school officials questioned and searched him . . . ." P.E.A., 754 P.2d at 386. Thus it seems that the court of appeals did not base its holding in part IV on the Colorado Constitution. On the other hand, in part II of its opinion, the court of appeals acknowledges that "in some instances, [Article II, Section 7,] may protect against invasions that the federal constitution would not prohibit." Derdeyn, 832 P.2d at 1035. Furthermore, because the court of appeals holds in part II that CU's urine testing program is unconstitutional under the Colorado Constitution, one might expect the court of appeals to reach in part IV of its opinion the issue of whether, under the Colorado Constitution, probable cause is required as a premise for urinalysis-drug-testing by CU. On balance, and especially in light of the authority cited by the court of appeals in part IV, we think the more plausible reading is that the court of appeals did not reach the issue of whether, under the Colorado Constitution, probable cause is required as a premise for urinalysis-drug-testing by CU.
We granted CU's petition for writ of certiorari on the following issues:
In the context of the University's drug-testing program, is suspicionless drug testing constitutionally reasonable?
Can student athletes give valid consent to the University's drug-testing program if their consent is a condition of participation in intercollegiate athletics at the University?
We hold that in the absence of voluntary consents, CU's random, suspicionless urinalysis-drug-testing of student athletes violates the Fourth Amendment to the United States Constitution and Article II, Section 7, of the Colorado Constitution. See infra part IIA. We further hold that the record supports the trial court's finding that CU failed to show that its athletes consent voluntarily to its drug-testing program. See infra part IIB. Finally, because we granted certiorari on the issue of whether, in the context of CU's drug-testing program, suspicionless drug-testing is constitutionally reasonable, and not on the issue of whether reasonable suspicion is ever a sufficient predicate to mandatory urinalysis-drug-testing of athletes by CU, and because the parties have briefed the former but not the latter issue, we express no opinion on the latter issue under either the federal or the state constitution.
At oral argument, CU requested that we review the program that was in effect at the time that the trial court issued its permanent injunction, except that we should ignore the REE component of that program. In other words, CU requested that we limit our review to only the third amended program, absent the REE component. We decline to do so for two reasons. First, the REE was an integral component of the third amended program, and so it is impossible to be precise about what, exactly, that program would be without the REE component. Second, as the trial court found, CU, in effect, has reserved a right to return to any of the drug-testing procedures that it used in its earlier programs. For that reason, the trial court reviewed all of CU's programs that preceded the trial. Our review is similarly broad, absent, of course, any consideration of the REE. In other words, we review in this opinion random, suspicionless urinalysis-drug-testing by CU of student athletes as that testing has been conducted pursuant to any of CU's drug-testing programs to the date of trial.
The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches conducted by the government, Von Raab, 489 U.S. at 665, even when the government acts as the administrator of an athletic program in a state school or university. See Schaill ex rel. Kross v. Tippecanoe County Sch. Corp., 864 F.2d 1309 (7th Cir. 1989); Brooks v. East Chambers Consol. Indep. Sch. Dist., 730 F. Supp. 759 (S.D. Tex. 1989); cf. New Jersey v. T.L.O., 469 U.S. 325, 333-37 (1985) (holding that the Fourth Amendment prohibits unreasonable searches and seizures conducted by public school officials acting as civil authorities). Furthermore,
[b]ecause it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, . . . these intrusions must be deemed searches under the Fourth Amendment.
Skinner, 489 U.S. at 617 (footnote omitted). It follows that CU's urinalysis-drug-testing program must meet the reasonableness requirement of the Fourth Amendment.
A search must usually be supported by a warrant issued upon probable cause. Von Raab, 489 U.S. at 665. However, neither a warrant, nor probable cause, nor any measure of individualized suspicion is an indispensable component of reasonableness in every circumstance. Id.; Skinner, 489 U.S. at 618-24. Rather,
where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.
Von Raab, 489 U.S. at 665-66.
It is clear that CU's drug-testing program is not designed to serve the ordinary needs of law enforcement. We must therefore balance individual student athletes' privacy expectations against CU's governmental interests to determine whether CU's random, warrantless, suspicionless urinalysis-drug-testing program is unreasonable under the Fourth Amendment. See Skinner, 489 U.S. at 619 ("What is reasonable . . . `depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.'" and "[t]hus, the permissibility of a particular practice `is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'") (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985), and Delaware v. Prouse, 440 U.S. 648, 654 (1979)); T.L.O., 469 U.S. at 337 ("Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place. The determination of the standard of reasonableness governing any specific class of searches requires `balancing the need to search against the invasion which the search entails.'") (quoting Camara v. Municipal Court of San Francisco, 387 U.S. 523, 537 (1967)); International Bhd. of Elec. Workers, Local 1245 v. United States Nuclear Regulatory Comm'n (NRC), 966 F.2d 521, 525 (9th Cir. 1992); Dimeo v. Griffin, 943 F.2d 679, 681 (7th Cir. 1991) (en banc); National Fed'n of Fed. Employees v. Cheney, 884 F.2d 603, 608 (D.C. Cir. 1989).
CU advances alternative theories to support its claim that its drug-testing program is reasonable under the Fourth Amendment. First, CU argues that its drug-testing program is reasonable under the Fourth Amendment because of the student athletes' diminished expectations of privacy and the compelling governmental interests served by the program. Second, CU argues that even if its drug-testing program is not otherwise constitutionally reasonable, there is no constitutional violation because its student athletes voluntarily consent to testing. We address these arguments in turn.
CU argues that its drug-testing program is reasonable under the Fourth Amendment because of the student athletes' diminished expectations of privacy and the compelling governmental interests served by the program. We therefore consider in turn (1) the degree to which CU's drug-testing program intrudes on the reasonable expectations of privacy of student athletes and (2) the magnitude of the governmental interests served by the program. We then balance these factors in order to determine whether CU's drug-testing program is reasonable under the Fourth Amendment.
Although nonvoluntary, random, suspicionless urinalysis-drug-testing by the government always intrudes on an individual's Fourth Amendment privacy interests, the magnitude of that intrusion can vary from context to context. See Von Raab, 489 U.S. at 671 ("The interference with individual privacy that results from the collection of a urine sample for subsequent chemical analysis could be substantial in some circumstances."). Some of the factors that courts have taken into account in determining the magnitude of such intrusions include the particular place and manner in which the urine sample is collected, Skinner, 489 U.S. at 626-27; Schaill, 864 F.2d at 1318, whether the individual participates "in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees," Skinner, 489 U.S. at 627, the operational realities of the workplace in which an individual is subjected to drug testing, Von Raab, 489 U.S. at 671, whether the individual "for whatever reason [is] subject to frequent medical examinations," Dimeo, 943 F.2d at 682, and the consequences of refusing to give a urine sample, Schaill, 864 F.2d at 1319-20. CU asserts in its brief that the magnitude of the intrusion of its drug-testing program on its athletes is minimal for a variety of reasons. Specifically, CU asserts that (a) collection of the urine sample in a closed stall with aural monitoring minimizes any intrusion. CU also asserts that student athletes' expectations of privacy with regard to urinalysis are diminished because (b) they routinely give urine samples as part of annual, general medical examinations; because (c) they submit to extensive regulation of their on- and off-campus behavior, including maintenance of required levels of academic performance, monitoring of course selection, training rules, mandatory practice sessions, diet restrictions, attendance at study halls, curfews, and prohibitions on alcohol and drug use; because (d) they must submit to the NCAA's random urinalysis-drug-testing program as a condition of participating in NCAA competition; because (e) the consequences of refusing to provide a urine sample are not severe; and because (f) positive test results are confidential and are not used for the purposes of criminal law enforcement.
CU also asserts that student athletes have a diminished expectation of privacy with regard to the drug-testing program because they give their consent to the program by signing consent forms that give them full notice of the program. As the trial court found, however, such consents are not voluntary. We recognize that in Schaill, 864 F.2d at 1319-20, the court reasoned that even if such a consent is not voluntary, the fact that a student signs a form giving consent significantly diminishes the subjective intrusiveness of urine testing, but we disagree with this analysis. In our view, once it has been determined that an individual's consent to a drug-testing program is not voluntary for the purposes of the Fourth Amendment, the fact that the government has extracted consent from the individual does not demonstrate that the individual has a diminished expectation of privacy with regard to the program. On the contrary, it shows that the program intrudes on an individuals's privacy interest.
We consider each of these assertions in the order stated. As a preliminary matter, however, we note two things. First, in support of these assertions, CU cites various exhibits and testimony contained in the record, all of which were originally presented in full to the trial court for its consideration, and CU had an opportunity during closing argument to stress the significance of this evidence for its case. In addition, the trial court heard testimony from several intercollegiate student athletes about what it is like to be a student athlete, and about what it is like to be tested, without individualized suspicion, for possible drug abuse, in CU's random urinalysis-drug-testing program. On the basis of all the evidence before it, the trial court found that "[o]btaining a monitored urine sample is a substantial invasion of privacy," and that CU's random, suspicionless urinalysis-drug-testing of athletes is an "intrusion [that] is clearly significant."
The trial court did not elaborate on these findings, except to say: Elimination of [urine] is a private matter and students subjected to direct observation are very embarrassed and uncomfortable and feel as though their privacy has been invaded. They are resentful that they must be required to prove that they are abiding by the University's rule against drug use. While the University does not request information other than the presence of the proscribed drugs from the laboratory, urine can reveal a whole host of other personal information such as use of birth control pills.
We are unaware of any case that holds that the determination of the magnitude of the intrusion of a drug-testing program on the privacy interests of individuals is a factual issue for the trial court to which appellate courts must defer. On the other hand, such a determination, while not a pure question of fact, is certainly one that is dependent upon many facts that can vary from case to case, and therefore a trial court is especially well positioned to assess the magnitude of an intrusion of a drug-testing program on the reasonable privacy expectations of an individual. We therefore owe respectful attention to the trial court's findings and conclusions in this case, and its findings and conclusions in no way support CU's assertion that its drug-testing program does not significantly intrude on the privacy interests of intercollegiate student athletes.
Second, it cannot be said that university students, simply because they are university students, are entitled to less protection than other persons under the Fourth Amendment. See Morale v. Grigel, 422 F. Supp. 988, 997, 998 (D. N.H. 1976) (stating that a "college cannot, in this day and age, protect students under the aegis of in loco parentis authority from the rigors of society's rules and laws, just as it cannot, under the same aegis, deprive students of their constitutional rights," and holding that a warrantless search of a student's dormitory room for stolen goods violated the Fourth Amendment even though the purpose of the search was not to obtain criminal evidence); Collier v. Miller, 414 F. Supp. 1357, 1359, 1367, 1367 n. 11 (S.D. Tex. 1976) (holding unconstitutional a random search, without probable cause, of a Houston University student's purse for alcoholic beverages, bottles, or weapons, as she entered a university pavilion for a rock concert, and explaining that "[t]he defendants do not argue in their brief that a different Fourth Amendment standard should apply to schools, nor would this Court find such an argument meritorious."); Smyth v. Lubbers, 398 F. Supp. 777, 786 (W.D. Mich. 1975) (holding that adult college students have the same interest in the privacy of their rooms as any adult has in the privacy of his home); 4 Wayne R. LaFave, Search and Seizure, 10.11(a), at 161-62 (2d ed. 1987) ("Courts have quite properly declined to rely upon the in loco parentis theory in assessing searches conducted on college campuses."); id. 10.11(c), at 178, 180 ("The reported cases dealing with searches upon college and university campuses reflect the fact that these searches are generally of a different nature than those occurring in high schools," and "it is abundantly clear that there is no basis consistent with established Fourth Amendment doctrine upon which to uphold these [college] searches when made upon less than a full showing of probable cause."); cf. T.L.O., 469 U.S. at 336-37 ("In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents' immunity from the strictures of the Fourth Amendment."). Indeed, we note that the representative plaintiff in this case, at the time of trial, was a thirty-one-year-old Army veteran who had served honorably in Europe and Iran, and who had been a member of CU's track and field and cross-country teams in 1986, 1987, and 1988. We therefore find of only marginal relevance holdings by other courts that high school student athletes have a diminished expectation of privacy under the Fourth Amendment, cf. Schaill, 864 F.2d at 1319 (concluding that it is "quite implausible that students competing for positions on [a high-school] interscholastic athletic team would have strong expectations of privacy with respect to urine tests"), and we are persuaded that cases that analyze the Fourth Amendment rights of adults in a workplace environment are much more instructive than cases such as T.L.O., 469 U.S. 325, In re P.E.A., 754 P.2d 382 (Colo. 1988) (search of a public high school student's car was not unconstitutional), and Acton v. Vernonia Sch. Dist. 47J, 796 F. Supp. 1354 (D. Or. 1992) (rural public high school's random urinalysis-drug-testing of interscholastic athletes was not unconstitutional), which analyze the Fourth Amendment rights of high school students.
C.R.C.P. 23(a) ("Class Actions") provides that "[o]ne or more members of a class may sue . . . as representative parties on behalf of all only if . . . the claims . . . of the representative parties are typical of the claims . . . of the class."
The court itself in Acton questioned whether it would have reached the same result if the high school in question were a large metropolitan school, id. at 1365 n. 8, and it specifically distinguished the case before it, on factual grounds, from a case such as Derdeyn, 832 P.2d 1031, that involved "college students who have, for the most part, reached the age of adulthood," Acton, 796 F. Supp. at 1363 n. 7.
With these two things in mind, we now consider CU's arguments that the magnitude of the intrusion of its drug-testing program on the reasonable expectations of privacy of its student athletes was minimal.
CU argues that collection of the urine sample in a closed stall with aural monitoring minimizes any intrusion. We agree that aural monitoring is less intrusive than visual monitoring, but as we have already noted, the trial court found that CU and the other defendants have
refused to agree that they will not return to the policy which was initially challenged in this class action [i.e., the policy according to which students were visually monitored while providing a urine sample]. In fact, defendants have indicated that there are circumstances under which they would return to that policy.
On certiorari review, it is clear from CU's brief that CU desires that we assume that only aural monitoring is at issue, but at the same time, CU does not challenge the trial court's finding that, in effect, CU might return to a visual monitoring system. In addition, the differences in practice between aural and visual monitoring might not always be so great.
For example, the trial court heard testimony from one female student who failed to perform adequately on a REE, and who was then required to provide a urine sample under the "aural monitoring" program. She testified that pursuant to that program I went to the team house and I went — they have a bathroom in the back behind Dave Burton's office and I had to leave the door open and gave them a urine sample. The following exchange then took place: Q Who was there outside the room? A Terry, [a female trainer,] I believe. Q Were you watched while you were providing the sample? A No. Q How did you feel about the process of someone standing outside while you were providing the sample? A It bothered me. Q Why? A Because it's embarrassing. No one should have to watch someone else pee. It's a private thing, shouldn't be more people in the bathroom. I thought, when I came, I thought it was, you know, they made it seem so minor and it seemed like it was going to be like you go to the doctor and you pee and you put it in a little thing and they open the little door and they take it, you know. The way they made it seem, it didn't seem like it would be that bad until the meeting.
CU argues that student athletes' expectations of privacy with regard to urinalysis are diminished because they routinely give urine samples as part of an annual, general medical examination, and because they regularly undergo close physical contact with trainers. In this regard, it is true that the United States Supreme Court has recognized that urine tests are less intrusive when the "sample is . . . collected in a medical environment, by personnel unrelated to the [employee's] employer, and is thus not unlike similar procedures encountered often in the context of a regular physical examination." Skinner, 489 U.S. at 626-27. Similarly, the Seventh Circuit Court of Appeals has stated that if an individual is required by his job to undergo frequent medical examinations, then that individual will perceive random urinalysis for drug-testing purposes as being less intrusive. Dimeo, 943 F.2d at 682. In this case, however, the trial court heard testimony that samples for random urinalysis-drug-testing were not collected in a medical environment by persons unrelated to the athletic program. In addition, many people have an annual physical examination, and the fact that CU's athletes have an annual physical would not seem to put them into Dimeo's category of those who must undergo "frequent" medical examinations. Indeed, the trial court heard testimony from one student athlete that "in that I have never been injured, I have been lucky and so the only time I saw the trainers was for a urinalysis."
See, e.g., supra note 20 and infra note 22. In addition, one male student explained as follows the difference between being required to provide a urine sample for drug testing, on the one hand, and undergoing medical treatment or examination, on the other: When I was treated by the athletic trainers, of course, they at various times touched various part [sic] of my body, that is necessary for treatment. At no time was I required to disrobe for this treatment or required to bear [sic] my genitals. Now, in the question of being observed giving a urine sample, you have direct, exposed genitals to the trainer and the trainer is looking at it and it's considered a private part of my body in my estimation. The student was then asked, "How was your interaction between you and the trainers, if you did, when they were treating you for an injury as opposed to when they were interacting with you for the purposes of an eye exam or for obtaining a urine sample?" to which he responded: When the trainers were treating me it was more like I was getting medical treatment and they were, say, some sort of medical personnel who were there to help me. In the instance of the drug testing, it was more like they were a policeman, more like an enforcement type situation and the atmosphere changed from friendly to adversarial.
That same female student testified: The restroom was filthy in the training room. The one in Wardenburg was okay but the restroom in the training room was always filthy and you had to do it in front of somebody else and you had to do it in one day. Sometimes my friend and I would be there drinking gallons of water literally after practice trying to go to the bathroom . . . . and we had to stay and you had to stay there that first year, you had until 6:00 p.m. to give your sample. It was on Tuesdays and if you couldn't, you would have to stay until you could provide a sample. If you missed that day, then it would be considered a positive.
CU argues that student athletes' expectations of privacy with regard to urinalysis are diminished because they submit to extensive regulation of their on- and off-campus behavior, including maintenance of required levels of academic performance, monitoring of course selection, training rules, mandatory practice sessions, diet restrictions, attendance at study halls, curfews, and prohibitions on alcohol and drug use. In support thereof, CU cites testimony from its athletic director and one student athlete.
CU's athletic director testified in relevant part that the NCAA sets limits on financial aid awards, playing seasons, squad size, and years of eligibility; that the NCAA requires that CU maintain records of each athlete's academic performance; that the "athletes that eat at training tables are football and men's basketball and the other athletes eat in the dorms or at their off-campus residences"; that some coaches within their discretion impose curfews; that athletes are required to show up for practice; that athletes are "advised . . . on what they should take for classes"; that "we have a required study hall in the morning and in the evening"; and that it is "fair to say that the athletes are fairly well regulated." A student athlete testified in relevant part that "Yes," "if you are an NCAA athlete, you have to keep a certain grade average," and "Yes," "if your grades drop below that average, then you are not eligible for competition."
Although it is obviously not amenable to precise calculation, it is at least doubtful that the testimony relied upon by CU fully supports CU's assertion that its student athletes are "extensively regulated in their on and off-campus behavior," especially with regard to all of the particulars that CU asserts. More importantly, none of the types of regulation relied on by CU entails an intrusion on privacy interests of the nature or extent involved in monitored collection of urine samples.
Under the third amended program, "athlete" includes "cheerleaders, student trainers and student managers." CU cites nothing in the record that suggests that these athletes are also extensively regulated on and off campus.
CU argues that student athletes' expectations of privacy with regard to urinalysis are diminished because they must submit to the NCAA's random urinalysis-drug-testing program as a condition of participating in NCAA competition. In this regard, CU's athletic director testified that at NCAA championship events, the NCAA conducts random drug testing of athletes as well as testing of the top three finishers and certain starting players, and evidence in the record suggests that NCAA athletes are required to sign consent forms to such testing.
There is nothing in the record to suggest that cheerleaders, student trainers or student managers are subject to the NCAA drug testing program. See supra note 23.
Again, it was one of those things like I can't believe this. I just competed and something that I looked forward to for years and years and years and they are doing the same intrusive thing that C.U. had but, you know, I was glad to be there and I wasn't going to argue with [it]. The NCAA is a very big [institution] and, you know, I wouldn't know how to fight that. I wouldn't be about to take my team's interests down the tubes because I didn't want to do the urinalysis.
Despite the fact that students might dislike the NCAA drug-testing program, it seems that they must consent to it in order to be NCAA athletes, and submission to one such program could reduce the intrusiveness of having to submit to another. On the other hand, the trial court heard testimony suggesting that part of what is intrusive about the CU program is that it transformed what might otherwise be friendly, trusting, and caring relations between trainers and athletes into untrusting and confrontational relations.
Specifically, CU's athletic director testified that a "common" and "accurate" way to describe the relationship between "the trainers and their athletes" is that they are "friend[s]." He also testified that the trainers take care of "the overall general wellbeing of the athlete and I think not only physically but I think also mentally." However, in describing her relation with a trainer after she had tested positive and was called in the next day for retesting (which turned out negative), one athlete testified "we [the trainer and I] are friends but it was confrontational. It was an untrusting — I felt that they were considering me untrustworthy." When asked how her relationship with the trainers changed thereafter, she answered: Well, probably from bad to worse. We did not dislike each other, it's just it made all the feelings even more so, all the feelings. It is confrontational. Everytime I come to the training room, I have to prove my innocence and it was just double that. The athlete also testified that no one ever explained to her how it was that the first test came back positive.
CU argues that student athletes' expectations of privacy with regard to urinalysis are diminished because the consequences of refusing to provide a urine sample are not severe. We appreciate that in comparison to losing one's job, as would be the consequence in some government employee/drug-testing cases, e.g., Bostic, 650 F. Supp. at 249, not being able to participate in intercollegiate athletics can be regarded as less of a burden. It is, to be sure, only a very small percentage of college athletes whose college "careers" are essential as stepping stones to lucrative contracts — or to any contract — as professional athletes. On the other hand, however, we must also recognize that many intercollegiate athletes who otherwise could not afford a college education receive athletic scholarships that enable them to obtain a college degree and thereby increase their earning potential. Continuation of such scholarships at CU is dependent upon continued participation in the intercollegiate athletic program, which in turn requires consent to the drug-testing program. Furthermore, many intercollegiate athletes pursue professional careers as high school or college coaches, or as administrators in athletic or recreational programs. Thus, for example, one student athlete who graduated from CU by the time of the trial testified that she worked as a track coach at CU. Another testified that she just recently obtained employment coaching girls' volleyball and basketball at a local high school. While having participated in intercollegiate athletics may not be a formal requirement for such jobs, it is commonplace that applicants with experience at the intercollegiate athletic level will not be disadvantaged in seeking such jobs in comparison with those who lack such experience. Also, we recognize that for many student athletes, participation in intercollegiate athletics is an activity highly valued for its own sake. We therefore believe that the consequences of not being able to participate in intercollegiate athletics must be accorded significant weight.
Finally, CU argues that student athletes' expectations of privacy with regard to urinalysis are diminished because positive test results are confidential and are not used for the purposes of criminal law enforcement. It is true that an intrusion by the government outside the context of criminal law enforcement is generally less of an intrusion than one for the purposes of law enforcement. However, as a matter of law, we already take this fact into account when we analyze this case according to the standards of cases like Skinner and Von Raab, rather than according to the standards of typical cases in the area of criminal procedure where there are very few and well defined exceptions to the requirement of a warrant based on probable cause. In other words, were we to attribute less weight to the students' privacy interests because this is not a criminal case, and also start with the premise that Skinner and Von Raab control, we would be, in effect, giving double weight in our analysis to the fact that we are not dealing with an issue in criminal procedure. Consequently, the fact that this is not a criminal matter adds nothing to what we must balance at this point in our analysis. Furthermore, as we have already indicated, CU does not in its written descriptions of its drug-testing programs give any significant specific or general assurances that test results are confidential. There is no evidence at all that CU has ever made available, or ever desired to make available, to the general public any student's urine test results, but the list of people to whom students must consent to the release of drug-test information is substantial, and we are particularly uncertain as to the significance of the fact that in CU's third amended program students must consent to the release of information to "my work supervisor (if applicable)."
In its third amended program, CU does state that communications between an athlete and physicians at Wardenburg Student Health Center shall be confidential. Given that the physician/patient communications are normally confidential, we do not perceive this as a "significant specific or general assurance" of confidentiality of test results.
CU also asserts in its brief that because "the locker room partakes of an element of `communal undress,'" the athletes challenging CU's drug testing program have diminished expectations of privacy. We find nothing, however, in the characterization of a locker room as partaking of an element of communal undress that suggests that student athletes would not be offended by the intrusion of being called upon to perform monitored urination for a drug test. For example, the trial court heard testimony from two female athletes that they were not called in from a state of "communal undress" for their random tests, but from the privacy of their homes: Well, I had never liked the program and what happened was — and that was in the fall of 1987, my fourth year, I got called on Tuesday night and it was 7:00 and I was in my pajamas and studying and it was Terry Brown who said I had to come down at that instant to do a test, a urinalysis test. . . . And I had an exam the next morning and if I didn't come in at that point, I would have a positive and so I had to go in and I didn't have a car. . . . and A Yes, I was home in Longmont one day and they called my house and said you are on the eye list, would you please come and give us — you have to come in and test. Q How was it that you hadn't seen the list or been able to look at the list? A Because I was at home. I had a class early and I think it was like Friday or something and I didn't have to go to practice. I didn't have to be supervised, go to a supervised practice so I was home and they called me and I had to come in from Longmont. In addition, CU's third amended program defines "athletes" to include cheerleaders, student trainers, and student managers, and although student trainers and student managers must be accustomed to a locker room, it is not obvious to us that any of these three categories of persons must participate in the communal undress. Finally, the record is silent on whether locker room conditions are the same for all intercollegiate sports.
Having reviewed the record in light of each of CU's assertions, it is clear that in some places CU seems to overstate its case, while in others, it has a valid point. On balance, however, we are in full agreement with the conclusion of the trial court that CU's random, suspicionless urinalysis-drug-testing of athletes is an "intrusion [that] is clearly significant."
CU asserts several interests in maintaining its drug-testing program. These interests are preparing its athletes for drug testing in NCAA championship events, promoting the integrity of its athletic program, preventing drug use by other students who look to athletes as role models, ensuring fair competition, and protecting the health and safety of intercollegiate athletes.
CU has not asserted any financial interest in maintaining its drug-testing program. Cf. Dimeo, 943 F.2d at 685 (state asserted a "substantial . . . financial interest" in random drug testing of professional jockeys, starters, and outriders).
We begin our consideration of these interests by observing that suspicionless urinalysis-drug-testing by the government has been upheld in numerous cases, and in many of those cases, courts have characterized the relevant government interests as "compelling." E.g., Skinner, 489 U.S. at 628 (government has "compelling" interest in testing railroad employees whose "duties [are] fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences"); Von Raab, 489 U.S. at 670 (government has "compelling interest in ensuring that front-line [drug] interdiction personnel [in the United States Customs Service] are physically fit, and have unimpeachable integrity and judgment"); id. at 677 (government has a compelling interest in protecting truly sensitive information from those who might compromise such information); id. at 679 (government has "compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation's borders or the life of the citizenry"); Cheney, 884 F.2d at 610 (government has a "compelling safety interest in ensuring that the approximately 2,800 civilians who fly and service its airplanes and helicopters are not impaired by drugs"). However, the Supreme Court has not held that only a "compelling" interest will suffice, see Skinner, 489 U.S. at 624; cf. Von Raab, 489 U.S. at 666, and some courts have upheld suspicionless urinalysis-drug-testing by the government without finding a compelling interest. E.g., Dimeo, 943 F.2d at 681, 683, 685 (explaining that decreasing levels of intrusiveness require decreasing levels of government justification, declining to characterize as compelling the government's interest in protecting professional jockeys, starters, and outriders from injuring one another at the race track, characterizing the state's financial interest as "substantial," and holding that these two interests outweigh "the very limited privacy interest[s]" of professional jockeys, starters, and outriders); International Bhd. of Elec. Workers, Local 1245 v. Skinner, 913 F.2d 1454, 1462, 1463, 1464 (9th Cir. 1990) (finding that the government has a "great" interest in the safety of the natural gas and hazardous liquid pipeline industry, and holding that this "strong" interest is sufficient to justify random urinalysis testing of pipeline workers). Hence, rather than trying to characterize CU's interests as "compelling," "strong," "substantial," or of some lesser degree of importance, we think it is more instructive simply to compare them with other types of commonly asserted interests that have been held sufficient or insufficient to justify similar intrusions.
We do not include in this list of examples the district court's opinion in O'Halloran v. University of Washington, 679 F. Supp. 997, 1002, 1007 (W.D. Wash. 1988) (finding that the NCAA and the University of Washington have a "compelling interest . . . in protecting the health of student-athletes, reducing peer pressure and temptations to use drugs, ensuring fair competitions for student-athletes and the public, and educating about and deterring drug abuse in sports competition" and concluding that these interests outweigh the privacy interests of student athletes), rev'd, O'Halloran v. University of Washington, 856 F.2d 1375, 1381 (9th Cir. 1988) (remanding "the action to the district court with directions that that court remand the entire case back to the state court from which it was removed" because "the district court did not have subject matter jurisdiction over the third-party complaint and removal was improper"), for several reasons. First, and most obvious, the district court lacked subject matter jurisdiction. Second, O'Halloran, 679 F. Supp. 997, was issued before Skinner and Von Raab were decided. Third, and perhaps more important, the issue presented in O'Halloran, 679 F. Supp. 997, was the constitutional validity of the NCAA's drug-testing program and the University of Washington's participation in it, id. at 998, as opposed to any program conducted by the University of Washington. In this regard, the district court held that the University of Washington's participation in the NCAA program did not constitute state action, and that the NCAA is not a state actor. Id. at 1002. Thus, the court's discussion of the "government's" compelling interests and the privacy interests of intercollegiate athletes is dicta, and it does not appear that the NCAA's intrusion upon the privacy of athletes at NCAA championship competitions is as severe as a university's intrusion on its own athletes.
Our review of the cases in this area supports the conclusion of the Ninth Circuit Court of Appeals in Local 1245 v. Skinner, a case involving a program for random drug testing of employees, absent individualized suspicion, that "the concern for public safety animates the general acceptance of drug testing by courts." Local 1245 v. Skinner, 913 F.2d at 1462 (citing as support for this proposition Skinner, Von Raab, and cases from the Third, Fourth, Eighth, and District of Columbia Circuits); see also O'Keefe v. Passaic Valley Water Comm'n, 602 A.2d 760, 763 (N.J.Super. A.D. 1992) (reading Skinner and Von Raab as holding that "the government may nevertheless require drug testing [absent reasonable suspicion] without running afoul of the proscriptions of the Fourth Amendment in those circumstances in which the government's special and compelling need to protect the public safety outweighs the employee's privacy interest"). For example, courts have upheld suspicionless urinalysis-drug-testing of Army-employed civilian air traffic controllers, pilots, aviation mechanics, aircraft attendants, police, and guards, Cheney, 884 F.2d at 610-11, 612-13; civilian employees of a chemical weapons plant who "have access to areas . . . in which experiments are performed with highly lethal chemical warfare agents," Thomson v. Marsh, 884 F.2d 113, 114 (4th Cir. 1989) (per curiam); drivers, mechanics and attendants whose primary duty is the daily transportation of handicapped children on school buses, Jones v. Jenkins, 878 F.2d 1476, 1477 (D.C. Cir. 1989) (per curiam), modifying Jones v. McKenzie, 833 F.2d 335 (D.C. Cir. 1987); bus or commercial truck drivers who operate "enormous" trucks such that "a single mistake in judgment or momentary lapse in attention can have devastating consequences for other travelers," International Bhd. of Teamsters v. Department of Transp., 932 F.2d 1292, 1304 (9th Cir. 1991); "scrub techs" in public hospitals whose duties include bringing patients to the operating room, setting up the sterile field, laying out the proper instruments, and assisting during surgery, Kent v. Claiborne County Hosp., 763 F. Supp. 1362, 1364, 1367 (S.D. Miss. 1991); employees holding top secret national security clearances, Harmon v. Thornburgh, 878 F.2d 484, 491-92 (D.C. Cir. 1989); county correctional employees with regular access to prisoners or weapons, Taylor v. O'Grady, 888 F.2d 1189, 1199, 1201 (7th Cir. 1989); and police officers who carry firearms or participate in drug interdiction efforts, Guiney v. Roache, 873 F.2d 1557, 1558 (1st Cir. 1989) (per curiam). At the same time, courts have found insufficient governmental interests to uphold suspicionless urinalysis-drug-testing of high-school students who participate in extracurricular activities, Brooks, 730 F. Supp. at 764-66; United States Department of Justice employees who are prosecutors in criminal cases and other employees who have access to grand jury proceedings, Harmon, 878 F.2d at 496; county correctional employees who have no reasonable opportunity to smuggle narcotics to prisoners and no access to firearms, Taylor, 888 F.2d at 1201; civilian laboratory workers at the Army's forensic Drug Testing Laboratories, Cheney, 884 F.2d at 613, 615; civilian employees in the chain of custody process for biochemical testing at the Army's forensic Drug Testing Laboratories, id.; and water meter readers who must enter customers' homes in order to read the meters, O'Keefe, 602 A.2d at 764. In addition, courts have questioned the propriety of suspicionless testing of secretaries, engineering technicians, research biologists, and animal caretakers who work at chemical and nuclear facilities, Cheney, 884 F.2d at 611; police department personnel who do not carry firearms or participate in drug interdiction efforts, Guiney, 873 F.2d at 1558; heads of purchasing departments in hospitals who have "vital and important responsibility essential to the proper supply of medical materials," Kemp, 763 F. Supp. at 1367; and United States Customs Service employees who are required to handle classified material, Von Raab, 489 U.S. at 677.
CU asserts no significant public safety or national security interests. This is not by itself dispositive, but absent a showing by CU that its athletes have a greatly diminished expectation of privacy or that its program is not significantly intrusive, the great majority of cases following Skinner and Von Raab clearly militate against the conclusion that CU's program is a reasonable exercise of state power under the Fourth Amendment. This is so despite the fact that CU's interest in protecting the health and safety of its intercollegiate athletes, like its interest in protecting all of its students, is unquestionably significant.
The possible exception is preventing drug use by other students who look to athletes as role models. However, CU presented no evidence that other CU students look to its athletes as role models, nor did CU present any evidence that its program, by deterring drug use among its athletes, has deterred drug use among its general student population. Absent any such evidence in the record, this possible public safety concern is purely speculative.
We have not been persuaded that CU's athletes have a greatly diminished expectation of privacy, nor are we persuaded that CU's program is not significantly intrusive. In addition, we question whether some of the interests asserted by CU are even significant for Fourth Amendment purposes. For example, although the integrity of its athletic program is, like all the other interests asserted by CU, a valid and commendable one, it does not seem to be very significant for Fourth Amendment purposes. See Local 1245 v. NRC, 966 F.2d at 525 n. 9 (In evaluating a program for random drug testing of employees absent individualized suspicion, the court said, "The NRC wisely decided to refrain from pursuing its integrity of the workforce rationale on appeal. This rationale has almost uniformly been rejected by the courts as insufficient to justify drug testing of employees."); O'Grady, 888 F.2d at 1196. Similarly, although the promotion of fair competition builds character in athletes and enhances the entertainment value of athletic events, CU does not explain why the promotion of fair competition is itself an important governmental interest, just as it does not explain why preventing the disqualification of its athletes at sporting events is an important governmental interest.
We therefore hold, based on a balancing of the privacy interests of the student athletes and the governmental interests of CU, that CU's drug-testing program is unconstitutional under the Fourth Amendment. More specifically, we hold that random, suspicionless urinalysis-drug-testing by CU of student athletes is unconstitutional under the Fourth Amendment if that testing is conducted according to the procedures utilized in any of CU's drug-testing programs to the date of trial, or if that testing is conducted in a manner substantially similar to any of the procedures utilized in any of CU's drug-testing programs to the date of trial. Furthermore, because the Colorado Constitution provides at least as much protection from unreasonable searches and seizures as does the Fourth Amendment, CU's drug-testing program is also unconstitutional under Article II, Section 7, of the Colorado Constitution.
CU asserts, however, that even if its drug-testing program is not otherwise constitutionally reasonable, there is no constitutional violation because its student athletes voluntarily consent to testing. We next address that argument.
A warrantless search of an individual is generally reasonable under the Fourth Amendment if the individual has voluntarily consented to it. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222 (1973). A voluntary consent to a search is "a consent intelligently and freely given, without any duress, coercion or subtle promises or threats calculated to flaw the free and unconstrained nature of the decision." People v. Carlson, 677 P.2d 310, 318 (Colo. 1984) (citing Bustamonte, 412 U.S. 218, and People v. Helm, 633 P.2d 1071 (Colo. 1981)). Whether consent to a search was voluntary "is a question of fact to be determined from all the circumstances . . . ." Bustamonte, 412 U.S. at 248-49; accord United States v. Wright, 932 F.2d 868, 878 (10th Cir. 1991) ("Whether a search was voluntary is a question of fact to be determined by the district court from the totality of the circumstances."); Carlson, 677 P.2d at 318 ("Voluntariness is a question of fact to be determined from the totality of circumstances;"). The government has the burden of proving that consent to a search was voluntarily given, Bustamonte, 412 U.S. at 222; People v. Savage, 698 P.2d 1330, 1334 (Colo. 1985); Carlson, 677 P.2d 310, 318 (Colo. 1984), and we must defer to the trial court's findings on the factual issue of voluntariness unless its findings are clearly erroneous, Wright, 932 F.2d at 878; United States v. Corral, 823 F.2d 1389, 1393 (10th Cir. 1987), or not supported by the record, People v. Lowe, 200 Colo. 470 616 P.2d 118, 124 (Colo. 1980); see Carlson, 677 P.2d at 318.
The trial court heard specific direct testimony from several intercollegiate student athletes who described how and when they were presented with consent forms to sign, and why they signed them. CU had the opportunity to cross-examine these students, and to present direct testimony of its own. The intercollegiate student athlete who testified on behalf of CU was not asked about how or when she was told of the drug-testing program, how or when she was presented with a consent form to sign, or why she signed the form. The Athletic Director for CU and CU's Head Athletic Trainer testified in general about how and when intercollegiate student athletes are notified about the drug-testing program, although neither testified about how and when the students are actually presented with consent forms to sign.
CU's Athletic Director testified that "at the initial team meeting, the athletes all sign the NCAA forms and consent to the NCAA [drug] testing at the championship events." The record indicates, however, that the NCAA drug-testing program is separate from CU's drug-testing program, and that each program uses separate consent forms. The evidence from the student athletes suggests that consent forms are signed after the initial team meetings and that such meetings are held at the beginning of each academic year.
On the basis of this evidence, the trial court concluded:
The evidence produced during this trial failed to establish that the consents given by the University's student-athletes are voluntary. It is quite clear that they are "coerced" for constitutional purposes by the fact that there can be no participation in athletics without a signed consent. As in the cases cited, the "consent" obtained by the University is not voluntary . . . .
In the immediately preceding paragraph the trial court cited Schaill, 864 F.2d 1309, Feliciano v. City of Cleveland, 661 F. Supp. 578 (N.D. Ohio 1987), American Federation of Government Employees v. Weinberger, 651 F. Supp. 726 (S.D. Ga. 1986), and Bostic v. McClendon, 650 F. Supp. 245 (N.D. Ga. 1986).
CU argues that this should not be understood as a factual finding by the trial court, but as an erroneous legal conclusion based improperly on the "unconstitutional conditions" doctrine of Perry v. Sindermann, 408 U.S. 583 (1972). In light of the language used by the trial court, and the authority that it cites, we are persuaded that the trial court did make a factual finding on the issue of voluntary consent, and that the trial court, as an alternative ground for its decision, also applied the doctrine of unconstitutional conditions.
CU has not been entirely consistent in its position on this issue before this court. In its opening brief it argued that after resolving the unconstitutional conditions question, "[t]he question remains whether the University's program provides for voluntary, knowing, and intelligent consent, which must be tested by the totality of the circumstances." In its reply brief, however, CU argues that we should confine our attention to the unconstitutional conditions issue, and appears to base the argument on the contentions that this was the only issue addressed by the trial court and that the manner in which the issues were framed in our grant of certiorari should limit our review.
The trial court reasoned as follows:
It is the duty of the government to "demonstrate that the consent was in fact voluntarily given and not the result of duress or coercion, express or implied. Voluntariness i[s] a question of fact to be determined from all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973).
The fact that participation in intercollegiate sports is not a "right" but a "benefit" does not alter the requirement that any consent be voluntary. The Supreme Court has acknowledged that
Though a person has no "right" to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest . . . . For if the government could deny a benefit to a person because of his [exercise of] constitutionally protected [rights], his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to produce a result which it could not command directly. Such interference with constitutional rights is impermissible. Perry v. Sinderman[n], 408 U.S. 583, 597 (1972).
It is quite clear that no consent can be voluntary where the failure to consent results in a denial of the governmental benefit. Bostic v. McClendon, 650 F. Supp. 245 (N.D. Ga. 1986) ("Consent" by city clerk's office and police personnel to urinalysis testing was not voluntary where employment would have been terminated if personnel refused to participate); Feliciano v. City of Cleveland, 661 F. Supp. 578 (N.D. Ohio 1987) (Police academy cadets did not voluntarily consent to urinalysis for drug testing where cadets believed that producing urine samples was necessary to retain their jobs); American Federation of Gov. Employees v. Weinberger, 651 F. Supp. 726 (S.D. Ga. 1986) (Because signed consent to Department of Defense mandatory urinalysis drug testing was given only because jobs would be lost if consent forms were not signed, the "consent" obtained was not voluntary); Schaill by Kross v. Tippecanoe County School Corp., 864 F.2d 1309 (7th Cir. 1988) ("Consent" by high school student-athletes to drug testing not effective as consent because participation in urinalysis testing was required for participation in interscholastic athletics).
The evidence produced during this trial failed to establish that the consents given by the University's student-athletes are voluntary. It is quite clear that they are "coerced" for constitutional purposes by the fact that there can be no participation in athletics without a signed consent. As in the cases cited, the "consent" obtained by the University is not voluntary . . . .
In Bostic and Feliciano, the trial courts applied the "all the circumstances" test articulated in Bustamonte, 412 U.S. at 248-49, and found as a matter of fact that the respective plaintiffs' consent to urinalysis-drug-testing was not voluntary. See Feliciano, 661 F. Supp. at 593-95; Bostic, 650 F. Supp. at 249. In Weinberger, the trial court relied on Bustamonte and found as a matter of fact that certain individuals did not voluntarily consent to urinalysis-drug-testing; in addition, the trial court applied the doctrine of unconstitutional conditions and held that consent to such testing was not a valid condition of government employment and could not have effected a waiver of the plaintiffs' rights under the Fourth Amendment. Weinberger, 651 F. Supp. at 736. In Schaill, a panel of the Seventh Circuit Court of Appeals quoted from Perry v. Sindermann, 408 U.S. 593, and seemed to hold as a matter of law that high school students cannot give valid consent to random drug testing if the giving of such consent is a condition of their being able to participate in interscholastic athletics. Schaill, 864 F.2d at 1312-13.
Feliciano v. City of Cleveland, 988 F.2d 649 (6th Cir. 1993), which did not reach any Fourth Amendment issue, id. at 654 n. 3, reports that Feliciano, 661 F. Supp. 578, was vacated by the district court in an unpublished order on December 14, 1989. Feliciano, 988 F.2d at 653. The trial court in this case issued its order on August 22, 1989.
Hence, in deciding the issue of "voluntary consent," the trial court cited Bustamonte and Sindermann. Then it relied on two cases (Bostic and Feliciano) in which trial courts found as a matter of fact under Bustamonte that the certain individuals did not voluntarily consent to urinalysis-drug-testing; one case (Weinberger) in which the trial court found as a matter of fact under Bustamonte that certain individuals did not voluntarily consent to urinalysis-drug-testing, and in addition, that consent to such testing was not a valid condition of government employment and could not have effected a waiver of the plaintiffs' rights under the Fourth Amendment; and one case (Schaill) that applied the doctrine of unconstitutional conditions and seemed to hold that high school students cannot give valid consent to random drug testing if such consent is a condition of their being able to participate in interscholastic athletics. We therefore are persuaded that the trial court, like the trial court in Weinberger, decided the issue of "voluntary consent" on alternative grounds. Specifically, the trial court found as a matter of fact under Bustamonte that "the evidence produced during this trial failed to establish that the consents given by the University's student-athletes are voluntary." In the alternative, the trial court relied on the doctrine of unconstitutional conditions and held that no consent can be voluntary under the Fourth Amendment where the failure to consent results in a denial of a government benefit such as participation in intercollegiate sports at a state university.
We therefore must determine whether the record supports the trial court's finding that CU failed to carry its burden of proving that the consents to search that are at issue in this case are voluntary. In this connection, it must be remembered that this is a class action. Such an action is based on the premise that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." C.R.C.P. 23(a)(3). The class members consist of both present and prospective student athletes. See supra note 9. Therefore, although it may initially appear anomalous that the consent issue could be decided as to future student athletes or on other than an individualized basis, the case was tried on the premise that the procedures for obtaining consents are standard components of the drug-testing program and are uniform. That is not to say that there are not variations in procedures dependent upon the times the students approach or are approached by CU, but rather that in each given situation a potential student athlete is advised of the drug program and solicited to consent in essentially standard ways. Thus, the procedures routinely followed in implementation of the drug-testing program, as applied to student athletes typified by those who testified at trial, are what are truly at issue in determining the voluntariness of consent. Consistent with this analysis, in its opening brief in this court, in which CU recognizes that "whether the University's program provides for voluntary, knowing, and intelligent consent" is a question to be resolved, see supra note 33, CU makes no argument that individualized determinations are required or that consent cannot be determined with respect to future students. Our review of the trial court's ruling on voluntariness of consent to search must be conducted with the foregoing framework in mind.
It is clear from the record that a student will be denied the opportunity to participate in CU's intercollegiate athletic program in absence of execution of a signed consent. It is equally clear that no athletic scholarship will be available to a student who does not consent to drug testing. The pressure on a prospective student athlete to sign a consent to random, suspicionless drug testing under such circumstances is obvious.
The record suggests that consents are signed following team meetings at some time around the beginning of the academic year. Prospective student athletes recruited by CU are advised of the drug-testing program in a general way early in their contacts with CU and with specificity prior to being asked to sign consents. The record does not reflect whether the prospective student athletes are given information at a time when they have a meaningful opportunity to apply for admission to another educational institution or for acceptance into an athletic program of such an alternative institution. There is nothing in the record to suggest that prospective student athletes are advised that CU may elect to revert to its former procedures of visually monitoring the collection of urine samples.
One student athlete testified that to transfer to another school after accepting an athletic scholarship results in a one- year loss of eligibility for participation in intercollegiate athletics.
It must be remembered that the consent in question is the consent to an otherwise unconstitutional search, and that to be voluntary such a consent must be "freely given, without any duress, coercion or subtle promises or threats calculated to flaw the free and unconstrained nature of the decision." People v. Carlson, 677 P.2d at 318 (citing Bustamonte, 412 U.S. 218, and People v. Helm, 633 P.2d 1071). We conclude that the record supports the trial court's finding that CU failed to bear its burden to prove that consents obtained pursuant to its random, suspicionless urinalysis-drug-testing program for the certified class of intercollegiate student athletes are voluntarily given. We accordingly hold that for the purposes of the Fourth Amendment and Article II, Section 7, of the Colorado Constitution, CU's intercollegiate student athletes do not voluntarily consent to being searched pursuant to the drug-testing program.
Because we uphold the trial court's finding that CU failed to prove voluntary consent, it is unnecessary and inappropriate for us to consider whether the trial court reached a legally correct result under the doctrine of unconstitutional conditions. See Jean v. Nelson, 472 U.S. 846, 854 (1985) ("`[i]f there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.'") (quoting Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105 (1944)); People v. Lybarger, 700 P.2d 910, 915 (Colo. 1985) ("Axiomatic to the exercise of judicial authority is the principle that a court should not decide a constitutional issue unless . . . the necessity for such decision is clear and inescapable."). We therefore express no opinion on whether, in theory, it is ever possible for university students voluntarily to consent under the Fourth Amendment, or under Article II, Section 7, to a drug-testing program if consent to that program is a condition of their ability to participate in intercollegiate athletics. The trial court unnecessarily addressed this issue. We do note, however, that the result reached by the trial court finds support in the analyses of writers who have endeavored to reconcile the numerous and difficult cases found in this area of the law. See Lynn A. Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 Cornell L.Rev. 1185, 1197-1212 (1990) (analysis of 23 United States Supreme Court opinions applying the doctrine of unconstitutional conditions); Sally Lynn Meloch, Note, An Analysis of Public College Athlete Drug Testing Programs Through the Unconstitutional Condition Doctrine and the Fourth Amendment, 60 S. Cal. L. Rev. 815, 826-35, 849-50 (1987) (analysis of 7 United States Supreme Court opinions applying the doctrine of unconstitutional conditions). These writers conclude directly, see Meloch, supra, at 835, and indirectly, see Baker, supra, at 1203-04, that whether a state university such as CU has unconstitutionally conditioned the benefit of participation in intercollegiate athletics would depend on a balancing of the same factors that are germane to determining whether CU's program is reasonable under the Fourth Amendment without the voluntary consent of its students, specifically, the magnitude of the governmental interests involved and the degree to which the program burdens the privacy interests of the athletes. See also Schaill, 864 F.2d at 1312-13 (suggesting that high school students could not under the Fourth Amendment give valid consent to random drug testing if the giving of such consent is a condition of their being able to participate in interscholastic athletics and if the testing otherwise would constitute an illegal search). We further note that the principal case relied upon by CU for its interpretation of the doctrine of unconstitutional conditions, specifically, Wyman v. James, 400 U.S. 309 (1971) (recipient of Aid to Families with Dependent Children public assistance benefits could not refuse a home visit by a social worker without risking the termination of benefits), does not support that interpretation for several reasons. First, Wyman held that the home visit in question was so unintrusive that it was not even a search under the Fourth Amendment, id. at 317, whereas random, monitored urinalysis-drug-testing is obviously a search. Second, the governmental interests at stake in Wyman were the compelling parens patriae governmental interest in protecting the well-being of young, dependent children, id. at 316, 318, 322 n. 9, and the substantial governmental interest in making sure that tax dollars are appropriately spent and not wasted either through welfare fraud or otherwise, id. at 318-19. No similar interests are implicated in this case. Third, Wyman held that even if the home visit were a search, it was reasonable. Thus, while Wyman reached in dicta the issue of whether the government may condition a benefit on consenting to a search that is reasonable, this is a different issue than whether the government may condition a benefit on a search that is unreasonable without the beneficiaries' consent, and it is the latter issue that is implicated in this case, see supra part IIB. The trial court permanently enjoined CU "from requiring any urine samples from student athletes for the purposes of drug testing . . . ." In view of our conclusion that it was unnecessary to address the unconstitutional conditions issue, we recognize the possibility that in the future CU might be able to devise a program involving truly voluntary consents to drug testing. In such event, CU is free to apply for modification or dissolution of the injunction.
In so doing, we express no opinion on the correctness of the court of appeals' holding that objective, reasonable, individualized suspicion of drug use could in some circumstances warrant mandatory drug testing of intercollegiate athletes by CU. See supra at 15.