There's a good chance that mandatory drug testing programs in Pennsylvania schools could be struck down if challenged in court.

According to local legal experts, that's because the state constitution defends individual privacy rights more strictly than the U.S. Constitution. School districts in Pennsylvania are held to higher standards when it comes to proving the necessity of programs that impinge on privacy.

Federal guidelines were established by the U.S. Supreme Court in two landmark cases: Vernonia School District 47J v. Acton (1995), and the Board of Education of Independent School District 92 of Pottawatomie County (Oklahoma) v. Earls (2002).

The Acton case upheld the constitutionality of random drug testing implemented by local public schools in Vernonia, Ore. After district administrators claimed that student-athletes were "leaders" of a growing drug culture, students were required to submit to random drug testing before being allowed to participate in sports. Then, during the season, 10 percent of all athletes were tested at random. In a 5-4 decision, the court held that although the tests qualified as searches under the Fourth Amendment, they were reasonable, because the school was trying to stem teenage drug use.

The Fourth Amendment to the Constitution guards individuals against unlawful search and seizure and calls for judicial approval of search warrants.

"The court applied a balancing test," said one local lawyer versed in school law, who asked to remain anonymous. "They took into consideration the interest of government versus the interest of the student" and decided in favor of the government.

The court also said athletes already relinquish some privacy rights because of the communal nature of locker rooms and showers. In its decision, the court wrote, "Somewhat like adults who choose to participate in a 'closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy."

In the Earls case, the court expanded the right of school districts to test students in any extracurricular activity. In another 5-4 decision, the court ruled that such pursuits are a privilege, not a right. Therefore, students who participate have a diminished expectation of privacy.

Justice Clarence Thomas, writing for the majority, stated that the policy "is a reasonable means of furthering the school district's important interest in preventing and deterring drug use among its schoolchildren."

Pennsylvania's laws related to drug testing have been shaped by the State Supreme Court's decision in Theodore v. Delaware Valley School District (2003).

The case began in 1998, when Louis and Mary Ellen Theodore challenged the legality of a new drug testing policy in the Pike County district, arguing it violated the rights guaranteed to their two daughters by the state constitution. The Court of Common Pleas dismissed the complaint, and the Theodores appealed to Commonwealth Court.

That court declared, "The Pennsylvania Constitution has greater protection than the federal constitution," and if a school district in Pennsylvania wants to give students drug tests, "They have to demonstrate there is a specific problem within the group of students" they plan to test, said the local lawyer.

Commonwealth Court decided the district failed to prove that drug use in the targeted groups was higher, and in fact suggested the policy's narrow focus might allow students most likely to use drugs to avoid testing altogether.

The court remanded the case to the Court of Common Pleas for trial, but by that time, both daughters had graduated and the parents dropped the lawsuit. So, while the Theodore case lays out more stringent requirements, the attorney said, no specific language has been developed to specify what those requirements are.

In the wake of the ruling, many districts have updated their policies related to drug use and testing, stating that information from discipline reports and Pennsylvania Youth Surveys must support the need for testing.

However, the attorney said, "To my knowledge, there has been no litigation where anyone has tested a drug-testing program in Pennsylvania." But, he added, "A school district should be able to identify that a problem exists before it implements any testing programs."

Locally, Solanco School District began considering drug testing in 1999, after a student died from a heroin overdose. Before enacting its testing policy, Penn Manor School District reported an increase of drug and alcohol violations.

The American Civil Liberties Union, Philadelphia, worked with several Penn Manor parents on the possibility of filing a lawsuit.

Ultimately, ACLU staff attorney Mary Catherine Roper said, the parents decided not to sue. Instead, some withdrew their children from school activities to avoid testing.

"Mostly parents decide they'd rather lobby their school than sue their school," Roper said. "It's a huge step to take."

Chip Smedley is an investigative reporter for Lancaster Newspapers. Contact him at csmedley@lnpnews.com.