M.K. v. Delaware Valley School District

Students required to consent to suspicionless drug testing to participate in extra-curricular activities

Court/Assoc.: Court of Common Pleas of Pike County

Attorneys/Firms: Stephen McConnell, Kevin Flannery, Michael Salimbene, and Kenneth Holloway (Dechert LLP); Mary Catherine Roper, Molly Tack-Hooper, and Witold Walczak (ACLU of Pennsylvania)

On March 9, 2011, the ACLU of Pennsylvania filed a lawsuit on behalf of a seventh and a ninth grader, sisters M.K. and A.K., and their parents, Glenn and Kathy Kiederer, against the Delaware Valley School District (Pike County). DVSD requires 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 have refused to sign the drug testing consent form. As a result, M.K. and A.K. are not allowed to participate in drama, art club, scrapbooking, softball, volleyball, tennis, basketball, soccer, or, ironically, Junior Students Against Substance Abuse.

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 has 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."

On July 21, 2011, the court issued a preliminary injunction against enforcement of the drug testing policy, concluding that plaintiffs were likely to prevail on their claims. The court held a two-day bench trial in October 2013.  On January 21, 2014, the court ruled in favor of the school district and vacated the preliminary injunction.  On February 11, 2014, Plaintiffs moved to set aside the verdict and asked for a new trial.  The court denied the motion on February 25, 2014.

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