LINDSAY EARLS, a minor, by her next friends and parents, John David and Lori Earls, and 

DANIEL JAMES, by his next friend and mother, Leta Hagar, 

Plaintiffs,

Defendants.

1. This suit seeks a declaration that students attending a public school have the right, protected by the Fourth and Fourteenth Amendments of the United States Constitution, to participate in non-athletic student activities without being required to submit to suspicionless drug testing. Plaintiffs in this action further seek appropriate injunctive relief protecting them from the suspension or limitation of non-athletic student activities, and from any other punishment, due to their refusal to consent to, or pay for, any form of suspicionless drug testing. 

2. For years, the roughly 1,000 students at Tecumseh High School have had the benefit of participating in school-sponsored activities ranging from producing student newspapers and yearbooks to musical and academic endeavors such as choir and competitive quiz bowls. Most of the school's students participate in these activities, contributing not only to a diverse educational experience, but to a more well-balanced and responsible group of students. Student activities are critical to students' successful application to colleges and universities. Without a solid record of activities, even a student with excellent grades will be turned away from competitive universities. Until recently, Tecumseh High School's student activities were generally open to any students wishing to participate. 

3. Beginning in October 1998, these requirements changed. With the implementation of the Student Activities Drug Testing Policy (hereinafter "Drug Testing Policy"), Tecumseh school officials now require all students who participate in certain enumerated activities to submit to suspicionless testing by urine sample for detection of illegal drugs, prescription drugs, and alcohol. Students must underwrite the cost of their own drug tests. As in many other schools, the Drug Testing Policy applies to athletic teams -- a practice approved by the U.S. Supreme Court and not challenged here by plaintiffs. But Tecumseh school officials have gone the further step of drug testing participants in certain non-athletic student activities and students enrolled in academic classes linked to the student activities. For instance, a student can take the choir class (a part of the school's regular curriculum) only if she also participates in the extra-curricular choir activities. Thus, the Drug Testing Policy effectively applies to parts of a public school's core, legally-required function -- the education of its students. Any student who refuses to be tested for drugs and alcohol and to pay for such tests faces immediate termination from student activities and ejection from regular classes tied to those activities. 

4. The School District has identified no special need to target students who do not participate in athletic activities for drug and alcohol testing. Rather, the policy expresses only a symbolic opposition to student drug and alcohol use. The testing methods used by the school is virtually useless in detecting past use of alcohol or most commonly abused drugs. By targeting a group of students who are relatively unlikely to use drugs on the basis of participation in activities that pose no special risks or physical dangers, the Drug Testing Policy neither addresses a proven problem nor promises to bring any benefit to students or the school. Instead, school officials have created a policy that causes substantial harms to its students. The policy discouraged from participation in student activities individuals who would otherwise benefit from experiences outside the strictly academic curriculum. Exclusion of students from these activities will seriously interfere with students' ability to gain college or university admission, affecting future employment, income, skills, and abilities. The harms caused by the policy will continue so long as defendants persist in implementing the current policy. 

5. Plaintiff Lindsay Earls is enrolled as a junior in Tecumseh High School, where she seeks to participate in non-athletic student activities subject to the school's Drug Testing Policy. 

6. Plaintiff Daniel James is enrolled as a junior in Tecumseh High School, where he seeks to participate in non-athletic student activities subject to the school's Drug Testing Policy. 

7. Defendant Board of Education of Tecumseh Public School District, Independent School District No. 92 of Pottawatomie County, is responsible for issuing, implementing, and enforcing the Student Activities Drug Testing Policy, which bars students from certain activities for which they are otherwise eligible unless they submit to testing of their urine for the presence of certain prohibited substances. 

8. Defendant Tecumseh Public School District, Independent School District No. 92 of Pottawatomie County, is responsible for issuing, implementing, and enforcing the Student Activities Drug Testing Policy, which bars students from certain activities for which they are otherwise eligible unless they submit to testing of their urine for the presence of certain prohibited substances. 

9. This court has jurisdiction over all causes of action herein pursuant to 28 U.S.C. §§1331 and 1361. A cause of action for plaintiffs' claims is created by 42 U.S.C. §1983. 

10. Venue is proper in this court under 28 U.S.C. §1391(e). 

A. Non-athletic Student Activities Before Enactment of the Drug Testing Policy 

11. Tecumseh Public School District offers a host of student activities that complement the standard academic curriculum. Students are able to participate in activities ranging from marching band to the French club, depending on their interests and abilities. Some of these activities contain a classroom component, which allows students to gain graded credit, including credits necessary in order to graduate. 

12. Prior to October 1998, the requirements at Tecumseh High School for joining student activities depended on a student's academic performance, interest, and the specific nature of each individual activity. For athletic pursuits, such as football, the school required all participants to pass a certified physical exam in order to ensure that they met certain health requirements. Any additional requirements for participation depended on the selectivity and specific demands of the sport. For non-athletic activities, such as Academic Team and Choir, no physical or medical tests were required. Further, in contrast to athletic teams, non-athletic activities have never required communal undressing or other voluntary reductions in privacy. 

B. Events Leading to Enactment of the Student Activities Drug Testing Policy 

13. Tecumseh High School has been fortunate never to have experienced a period of suddenly increased drug or alcohol consumption. Drug use among high school students throughout the nation has steadily declined since 1996. Students who engage in school-sponsored activities are substantially less likely to use drugs than other students. Participants in band, orchestra, chorus, or the school play or musical exhibit the lowest drug or alcohol use of any group of students. No evidence suggests that Tecumseh diverges from these national trends. Indeed, the students who participate in non-athletic student activities at Tecumseh High School do not, as a group, have a reputation for or history of drug or alcohol use. 

14. Two isolated events concerning athletes in Tecumseh's middle school triggered School District officials' decision to "do something" about drugs. In 1996 or 1997 a group of eighth grade football players was accused of consuming prescription drugs, reportedly pills used to control blood pressure. Although these athletes were spared any injury, this incident gained notoriety among parents. The following year, a small quantity of marijuana was reportedly discovered in the middle school locker room and was said to belong to seventh grade football players. 

15. Shortly after the incidents involving the middle school football players, several parents attended a school board meeting where they forcefully demanded a strong response to the threat of prescription drugs, illegal drugs, and alcohol. Directly responding to these parental demands, defendant School District proposed the Student Activities Drug Testing Policy. 

3. Provisions of the Drug Testing Policy 

16. Enacted in October 1998, the Drug Testing Policy created a mandatory, suspicionless drug and alcohol testing program with the stated purpose of "protect[ing] the health and safety of its extra-curricular activities students from illegal and/or performance-enhancing drug use and abuse, thereby setting an example for all other students of the Tecumseh Public School District." 

17. Under the school's policy, each student participating in a covered activity must pay an annual fixed sum to subsidize the cost of his or her initial drug test and subsequent random drug testing. For the 1998-1999 academic year, the fixed sum was four dollars. For the 1999-2000 school year, the sum is five dollars. Students who refuse or are unable to pay the drug testing fee are ineligible to participate in student activities covered by the Drug Testing Policy or in the academic course associated with these activities. 

18. The procedure for the Drug Testing Policy begins with a "Student Drug Testing Consent Form," which must be read, signed and dated by the "activity student," his/her parent or custodial guardian, and the student's coach or sponsor. This form requires the activity student to agree to provide a urine sample "(a) as part of the student's annual physical or for eligibility for participation; (b) when the activity student is selected by the random selection basis to provide a urine sample; and (c) at any time when there is reasonable suspicion to test for illegal or performance-enhancing drugs." If a student has not returned the consent form with all of the requisite signatures and dates, he or she is prohibited from practicing or participating in any of the enumerated student activities. 

19. The requirement of the Drug Testing Policy that each student pass an initial screening applies differently to athletic and non-athletic activities. For athletic team members, the Policy requires a urine test taken as part of the annual physical examination already required for such activities. For non-athletic activities such as Band or Academic Team, which have never required a physical examination or any other physical requirement, a urine test must be taken independently without a physical examination. The requirement of an initial urine test for all students was not enforced during the previous school year when the Policy first went into effect. Students have been told that all students participating in non-athletic activities subject to the Policy will be required to submit urine samples at the beginning of the 1999-2000 school year. 

20. The second component of the Policy -- random, suspicionless testing -- takes place on a monthly basis. All students registered in either an "off-season" or "in-season" activity are placed on a list, and the Tecumseh Public School District determines the number of students to be chosen randomly from that list for testing in a given month. 

21. Finally, the Student Activities Drug Testing Policy provides for testing of any activity student when an school administrator, coach, or sponsor has "reasonable suspicion of illegal or performance-enhancing drug use by that particular student." This element of the policy is not challenged here by Plaintiffs. 

22. According to the Policy, urine tests should be conducted in "a restroom or other private facility behind a closed stall" and should be personally monitored by a school employee designated by the principal. The Policy provides that the monitor "shall not observe the student while the specimen is being produced, but . . . shall be present outside the stall to listen for the normal sounds of urination in order to guard against tampered specimens and to insure an accurate chain of custody." 

23. The Drug Testing Policy sets forth the following protocol for analyzing students' urine and for responding to a positive test result. Students' urine is initially analyzed using the immunoassay methodology. A positive test result in the initial urine test is subject to confirmation by a second test of the same specimen using Gas Chromatograph/Mass Spectrometry ("GC/MS") methodology. If the GC/MS test reveals a positive result, the laboratory notifies the school principal or designee, who then notifies the student, the head coach or sponsor of the relevant activity, and the student's parent or guardian. The Policy allows notification of other school personnel who have an unspecified "need to know" but directs that the results are not to be given to law enforcement authorities. If the student wishes to challenge the results and request a review by the Superintendent, he or she is given five calendar days to submit a written appeal to the Superintendent, during which time the student may continue to participate in extra-curricular activities. The Superintendent or his/her designee makes the final determination of whether the original finding was justified, and his or her decision is not subject to further review. 

24. According to the Policy, the consequence of a positive test result depends on the number of prior offenses. For the first offense, the student's parent or guardian is contacted and a meeting is arranged to include the student, the parent/guardian, the athletic director or sponsor, and the principal. The student may continue to participate in the extra-curricular activity if, within five days of this meeting, (1) the student and parent/guardian show proof that the student has received drug counseling from a qualified entity, and (2) the student submits to a second drug test administered within two weeks of the meeting. For the second offence, the student is suspended from participation in all extra-curricular activities (including meetings, practices, scrimmages, and competitions) for fourteen calendar days and must successfully complete four hours of substance abuse counseling. Thereafter, the student must submit to monthly tests at times and dates chosen at random by the principal or designee. After a third offense, the student is suspended completely from participating in any extra-curricular activity "for the remainder of the school year, or eighty-eight school days (1 semester), whichever is the longer." 

D. The Application of the Drug Testing Policy to Plaintiffs 

25. Plaintiff Lindsay Earls has previously participated in the school's Academic Team, Choir, Show Choir, Marching Band, Beta Club and National Honor Society. Ms. Earls desires to continue participating in these activities and to enroll in academic classes connected with Academic Team, Choir, Show Choir, Marching Band during the 1999-2000 school year. She will be permitted to continue as a member of the Beta Club and National Honor Society, but she will be ineligible to engage in her other student activities and will be expelled from the connected curricular classes under the school's Drug Testing Policy unless she submits to the school's program of suspicionless drug testing. Ms. Earls plans to use her choir and band class credits to meet the school's graduation requirement that she complete a fine arts class. She does not wish to pursue non-musical or non-performance classes to meet this requirement. Indeed, she is considering music as a college major and plans to apply for music scholarships. Defendants' Policy would exclude Ms. Earls from her chosen activities and classes and would effectively foreclose her ability to major in music or receive music scholarships solely because she objects to providing her urine on demand to school officials for drug testing. She has met every other criteria for participation in her chosen activities and for enrollment in her chosen classes. Ms. Earls aspires to attend a competitive university after she graduates from high school and wishes to increase her academic skills and musical talents. She fears, however, that exclusion from student activities and classes will jeopardize her future plans and aspirations. 

26. During the 1998-99 school year, Ms. Earls was coerced into consenting to the school's drug testing program, and she did so only in order to avoid being barred from student activities and associated classes. In October 1998, she completed a consent form, including a list of her prescription drugs, and submitted the form to Mrs. Warwick, the Academic Team advisor. Ms. Earls does not know whether the form was placed in a sealed envelope, as called for by the Policy. An initial drug screening was not required for participation on the Academic Team for the 1998-1999 school year, since the Drug Testing Policy took effect mid-year. 

27. Plaintiff Earls was selected for random drug testing in early 1999. She learned of her selection while attending choir class, which meets in the middle school auditorium. A principal's assistant arrived at the choir class and announced for all to hear that Ms. Earls needed to report to the school cafeteria. The other students in the class immediately understood that Ms. Earls had been selected for drug testing. One of the students who had previously been drug tested offered to give Ms. Earls a ride back to the high school and to lend "moral support" while Ms. Earls waited for the drug test. In the school cafeteria, the principal explained to the group of approximately fifteen students the procedure to be followed. Each student was given a small cup. Faculty members led the students to the bathroom in groups of three or four. When the time arrived for Ms. Earls to walk to the bathroom, she felt that the entire program was a futile and somewhat humorous waste of time and money. But when she had to produce a urine sample, her sense of amusement turned into embarrassment. She entered a bathroom stall, while three faculty members waited immediately outside the stall listening for the sound of Ms. Earls' urination. One of the faculty members, a sponsor for the cheerleading squad, joked that she felt like she was engaging in "potty training." Another monitor, the sponsor for the softball team, collected Ms. Earls cup, sealed it, and supervised Ms. Earls as she signed her initials on the cup label. Ms. Earls heard nothing further from school officials concerning the results of her drug test, thus indicating that she had "passed" the test. 

28. Plaintiff Daniel James seeks to participate in the school's Academic Team, Life Guides and Youth Alive during the 1999-2000 school year. He will be permitted to serve as a Life Guide (a group of role models and peer counselors which requires a pledge of drug and alcohol abstinence but does not require a urine test) and to participate in Youth Alive activities, but he will be ineligible to join the Academic Team and will be barred from the connected curricular class under the school's Drug Testing Policy unless he submits to the school's program of suspicionless drug testing. During the 1998-99 academic year, Mr. James was not required to consent to drug testing in order to participate in the Life Sports Class, where he joined members of the school's Power Lifting Team in weight-lifting exercises. He excelled at the sport and competed successfully as an individual in tournaments. 

29. Mr. James objects to suspicionless drug testing because he believes it interferes with his rights and his privacy. In particular, he fears that an erroneous test result, purporting to show drug or alcohol use, will result in profoundly negative consequences. He believes he would be excluded from Life Guides, would lose his hard-earned reputation as a student leader, and would forfeit any ability to guide his fellow students. His training as a Life Guide included a week-long course and intensive work with professional counselors -- all of which would be meaningless if he was perceived to be a drug user. Mr. James believes that his participation in the Academic Team and Life Guides are both of great importance to his ability to gain admission to a competitive university. 

4. The Effects of the Drug Testing Policy 

30. Most, if not all, of the non-athletic activities subject to drug testing are not "extra-curricular" in the normal sense of that word, since each of these activities also includes a classroom component. Students who participate in the Academic Team, Choir, Band, Future Farmers of America (FFA), and Future Homemakers of America (FHA) (and perhaps members of the cheerleading and pom pon squads) must also enroll in a regular class corresponding to each of these activities. Students receive graded credits for these classes only if they participate in the related student activity. Some of these classes are used by students to fulfill the course distribution prerequisites for graduation. For instance, the school requires students to earn fine arts credits in order to receive a diploma. This prerequisite can be met only through courses associated with a non-athletic student activity, such as choir or band, or through a class devoid of musical performance (for instance, ceramics or music appreciation class). Thus, a student who refuses to submit to random drug testing is excluded from the entire fine arts performance curriculum, forced instead to take a class that teaches only visual arts or music theory. 

31. The purpose of defendants' policy is more symbolic than practical. Defendants enacted the Drug Testing Policy, not upon evidence it would have any appreciable effect in reducing use of prohibited substances and not in response to a documented drug problem, but rather because defendants perceived a need to send a message to students and parents that defendants do not condone drug use. Defendants have no reason to believe that students engaged in non-athletic activities are particularly likely to use drugs -- indeed, these students are among the least likely to use drugs. Instead of formulating a policy to meet the particularized needs of a proven problem, defendants reacted to the vocal urgings of a small number of parents who believed the school district should to take stronger steps to penalize drug and alcohol use. 

32. Defendants arrived at their choice of random drug testing without reaching a considered conclusion that other, less intrusive programs could achieve their stated goals. Although many school districts have found that a drug testing program based on individualized suspicion is adequate to detect and prevent drug use, defendants did not consider such an option or conclude that such an option would be unworkable. Further, defendants had no basis for rejecting the conclusion of many other school districts that random drug testing, if conducted at all, should be limited to athletes, for whom there is a lower expectation of privacy and for whom drug or alcohol use poses special dangers while engaged in strenuous physical activities. 

33. The Drug Testing Policy purports to apply to every student in grades 7-12 who "represents Tecumseh schools in any extra-curricular activity such as FFA, FHA, Academic Team, Band, Vocal, Pom Pon, Cheerleader and Athletics." In fact, the Policy applies only to the athletic teams and to the following non-athletic activities enumerated in the Policy, none of which involve communal undressing, other voluntary reductions in student privacy, or risk of physical injury to students: 

A. Academic Team: The Academic Team consists of a group of students who enroll in a regular academic class and then compete in interscholastic contests. These contests take the form of "quiz bowls" or question-answer sessions on a variety of topics. Students participate in a daily classroom session where they create a notebook project, research and write reports, and undertake other activities designed to broaden the students' knowledge base. Students receive graded credits for their classroom activities. Students also meet once a week after school for practice and compete one to two times per week in tournaments for most of the academic year. In addition to competing at other high schools, the group hosts an annual tournament held at Tecumseh High School. 

B. Band: Tecumseh High School sponsors both a marching band (which includes a musical section and a color guard) and a concert band. The marching band regularly performs, both on and off campus, at sporting events and competitions. To be eligible to march in the band, students must enroll in the marching band's classroom component, which counts toward a student's graduation requirements; students who do not march in the band are not eligible for the class. The concert band, unlike the marching band, focuses solely on musical performance. Students in the concert band are required to take a graded classroom component which counts toward their graduation requirements. 

C. Choir: The school choir performs regular concerts and participates in interscholastic competitions. Apart from the drug testing requirement, it is open to all students who are interested. Those students who choose to participate must be enrolled in a classroom component which counts toward the fine arts distributional requirement, and students who do not perform with the choir are not eligible for the class. Some of the students in the choir also participate in a group known as the Show Choir. More selective than the Choir, the Show Choir requires participants to audition for performance roles, with selection based on their talent and dedication. Subject to the same participatory requirements as the choir, all students in the Show Choir must undergo drug testing and must satisfy the classroom component. The group practices regularly during and after school, and it typically performs in three annual shows, where students sing selections from Broadway musicals. Newspaper announcements and bulletins invite members of the public to the shows, some of which are held in the auditorium of the Tecumseh Middle School. 

D. Future Homemakers of America (FHA): Future Homemakers of America is a national club teaching homemaking skills. Participants in the Tecumseh High School's chapter meet regularly during school hours. 

E. Future Farmers of America (FFA): Future Farmers of America, a national organization with chapters in many communities, consists of students with an interest in a farming career. Students must enroll in an FFA class in order to be a member