David Derdeyn, a long-distance runner, wants to run on the track team of the University of Colorado. Derdeyn does not want to submit to a program of random urine testing.
The university says the program is necessary. He says it's unconstitutional. He sued. He won. Colorado's Supreme Court ruled that the university's interest in clean and safe athletics is less important than Derdeyn's interest in his own privacy.Within the next couple of weeks, the U.S. Supreme Court will announce whether or not it will review the case. I hope the court takes the case, and I hope the university wins. In my own view, the invasion of an athlete's privacy is minimal, and the state's interest in drug-free sports is substantial.
Having said that, let me add that Colorado vs. Derdeyn is not an easy case. The American Civil Liberties Union is pressing similar cases across the country. They follow a pattern.
As a condition for participating in a university's athletic program, the university requires every athlete, trainer, coach and even cheerleader to consent to random urine testing. Those who refuse to consent are suspended from team sports.
Obviously a university has a strong interest in protecting student athletes. Their good health matters. There is a pecuniary interest also: Big-time football means big-time revenue that could be jeopardized if it ever were suspected that players were under the influence of steroids or illicit drugs.
In its application to Derdeyn, the law is far from settled. One proposition is certain: Students at public institutions have not abandoned their constitutional rights at the schoolhouse door. The Constitution protects them from "unreasonable" searches.
A second proposition is equally certain: Fourth Amendment rights are not absolute. They must be balanced against an overriding public interest. The hard part lies in finding the balance point and in determining when a search is reasonable or unreasonable.
In the case of airline passengers, the questions are easily answered. A passenger must pass successfully through a metal detector. At one time the American Civil Liberties Union thought this was a dreadful infringement on our Fourth Amendment rights, but now even the ACLU acknowledges a compelling interest in keeping terrorists off airplanes.
Group searches in other circumstances have generally passed muster. In 1989 the Supreme Court upheld drug testing for railroad engineers and for narcotics agents required to carry firearms. With some limitations the court has approved random roadblocks to check for drunken drivers. The general rule is that there must be a clear and urgent public need for random searches. What public needs are clear and urgent?
Just a month ago the U.S. Court of Appeals for the 9th Circuit held that the random urine testing of student athletes in Oregon violates the athletes' right of privacy.
I'm still on Colorado's side. A right to privacy, to be sure, is a valuable right, but in this case the university's random testing program is a small invasion when balanced against a large problem. In any event, those who live locker room lives have mighty little privacy left to protect.