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In a recent episode of All Things Legal, Craig Ashton, Ed Schade, and Tim Hodson discussed an issue that highlighted an interesting contradiction: You can have no personal objection to a policy or action, but still feel strongly that it should be vetted in order to ensure it’s not unconstitutional. While this might seem surprising, long-time fans of All Things Legal on Money 105.5 shouldn’t be too surprised by the gang’s undying passion for protecting constitutional rights from even the most unassuming of encroachments and limitations. After all, as car accident attorneys, they understand the value of using the court system to protect people’s rights.

In this case, the issue in question is one local school’s approach to keeping school dances alcohol-free.

Del Oro High School recently made the controversial decision to test students for alcohol before admitting them to school dances.

Del Oro High School recently made the controversial decision to test students for alcohol before admitting them to school dances.

Does testing high schoolers for alcohol violate their Fourth Amendment rights?

As usual, Craig kicked off the discussion: “Students at Del Oro High School, before they go to school dances, [are] given a breathalyzer test. And [Ed], you have a child that just graduated from high school and now is off at Oklahoma State. What do you think about that, generally? Do you think that’s a good idea?”

Ed: “It doesn’t really bother me, one way or the other, because your kid could decide to go to the dance or not go to the dance. It’s not like they’re being forced to take a breathalyzer test. It’s voluntary… similar to a road check for a DUI. They announce it in advance, they give you a loop where you can turn out to protect your Fourth Amendment rights against search and seizure. They give you an option out, because before when they didn’t give you that option, it was deemed to be unconstitutional. So as long as they announce it in advance, I don’t see a big deal with it.”

Tim: “It’s unfortunate it’s gotten to this point. When we do alumni weekend in Chico, the student players are no longer allowed to take part in our alumni banquet because of the same type of liability issue, because a lot of them are underage. In order to prevent… us from potentially serving [alcohol] to them.”

Craig: “So essentially what we have here is the Fourth Amendment, which says that we are free from ‘unreasonable searches and seizures.’ So typically, before anybody can search you, police officers have to have what’s called a ‘reasonable suspicion.’ They can’t just randomly stop you and search you. At that point they’re violating your constitutional right against unreasonable search and seizures.”

Tim: “Unless you’re on probation or parole.”

Craig: “There we go. Those are the limitations, but bottom line, it’s a pretty broad rule.” So usually what happens in cases like these, because there’s a constitutional right involved, [a couple concerns have to be satisfied]. There has to be a legitimate state interest, which I think there is, in making sure people who are underage are not drinking alcohol.

“And then the other is that it needs to be narrowly tailored. So that may be the issue that Del Oro will face, because it’s not random, it’s everybody. And at that point without reasonable suspicion, technically speaking, an argument could be made [that the school rule violates constitutional protections], and I think the ACLU will make this. Which, I think it should be litigated, and if the court’s say, ‘Hey, this is not unconstitutional,’ move forward. But it’s important that we protect those rights, because it’s a slippery slope…”

While the rule may be constitutional, there are still good reasons for challenging it in court.

Craig: “Two other Sacramento area high schools [conduct similar tests]… Folsom High School and Vista del Lago have for years conducted random tests, which I think is more narrowly tailored. In other words, it’s not everybody being tested, just randomly, and because there is a legitimate interest in making sure there’s not drug and alcohol use at dances. I think that one is probably an easier constitutional hurdle to overcome because it’s random, not everybody.”

Ed found a convenient pause in Craig’s soliloquy to step in and reinforce an earlier statement by Craig: “With your comment [about how] ‘the ACLU might challenge this’… they absolutely should challenge it, because that’s why we have the three different branches of government… I’m all for [the rule] being challenged, and I’m all for the safety associated with it. And I think anything… that might restrict one of your freedoms, needs to be challenged.”

It’s often very difficult to separate personal opinion from legal perspective. This discussion on safety versus legality was an interesting opportunity for all involved to take a step back, and analyze the usefulness of a rule—in order to protect students—and its legality as entirely separate matters.

Hopefully this conversation about a relatively minor matter can create a template for calmly discussing the much larger political and more emotionally fraught issues that are commonly discussed on All Things Legal, as well as the much larger political stage.

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