PHILADELPHIA -- The President Judge of Pike County has issued an order preventing the Delaware Valley School District from enforcing its unconstitutional policy requiring students to submit to random drug testing to participate in extracurricular activities and to drive to school. The ruling came in response to a March 9, 2011, lawsuit filed by the American Civil Liberties Union of Pennsylvania and Dechert LLP on behalf of sisters M.K. and A.K., incoming eighth and 10th graders, respectively, and their parents, Glenn and Kathy Kiederer.
"We are delighted that the judge recognized what the Kiederers have known all along - that DVSD's suspicionless drug testing policy is an unconstitutional violation of their daughters' right to privacy," said Stephen McConnell of the law firm Dechert LLP, one of the attorneys representing the Kiederers.
In his decision, Judge Joseph Kameen stated, "This case involves a fundamental right - that of the Plaintiff's privacy. Plaintiffs in this matter are forced into making an unconstitutional choice between not participating in extracurricular activities, sports, or parking at school and allowing DVSD to violate their privacy."
He later added, "DVSD has failed to show a solid reason for [this policy]…. Granting the plaintiff's request certainly does not harm the public interest. Rather, it will protect it."
DVSD's policy required students and their parents to consent to a mandatory initial drug and alcohol test and random drug and alcohol testing throughout the year in order to participate in extracurricular activities. Because M.K., A.K., and their parents believe that the policy violates the girls' privacy, they refused to sign the drug testing consent form. As a result, M.K. and A.K. were not allowed to participate in drama, art club, scrapbooking, softball, volleyball, tennis, basketball, soccer, or, ironically, Junior Students Against Substance Abuse.
"Our daughters are very excited that they will be able to participate in all co-curricular activities this coming school year," said Glenn and Kathy Kiederer. "The court ruling has proven to our girls that they should fight for what they believe in and that they do not shed their constitutional rights on school grounds."
The DVSD drug testing policy was declared unconstitutional by the Pennsylvania Supreme Court in 2003 (Theodore v. Delaware Valley School) unless the school could show additional evidence that the group of students undergoing testing had a high rate of drug use. According to the complaint, the school district essentially ignored that ruling and continued to enforce the drug testing policy. The school district has never compiled data that would support or refute the need for its policy. At an August 10, 2010 school board meeting, the district's own solicitor admitted that the district had not "followed the Supreme Court mandate."
This is the second recent ACLU-PA victory involving suspicionless drug testing in Pennsylvania public schools. In May a judge issued a ruling prohibiting the Panther Valley School District (Carbon County) from enforcing a similar policy requiring students to submit to random drug testing to participate in extracurricular activities, including school dances (M.T. v. Panther Valley School District).
The case is M.K. v. the Delaware Valley School District. In addition to McConnell, the Kiederers are represented by Kevin Flannery, Michael Salimbene, and Kenneth Holloway of Dechert LLP, and Mary Catherine Roper, Molly Tack-Hooper, and Witold Walczak of the ACLU-PA.