Drug Testing for Alabama Football Fraternities

Sean Callan, Manley Burke, sean.callan@manleyburke.com

Without attracting attention, the University of Alabama created and implemented a mandatory drug testing program aimed directly at fraternity members.  According to recent published reports,¹ UA now requires drug testing of members of multiple Greek letter organizations on campus.  It is unclear precisely which organizations are targeted, but it appears that Sigma Nu and SAE are among the chapters subject to the drug testing program.

Details of the program are not available from any source document.  There does not appear to be any published policy or public statement from UA on the matter.  While UA has publicly confirmed that it is drug testing some fraternity members, it has refused to confirm how many or which ones.  Likewise, it is unclear if the basis for mandatory testing rests on anything more than being a member of one of the targeted organizations.

Some details of the program are documented in news reports.  According to reports, every active member of the targeted organizations was tested at the beginning of the school year (Fall, 2015).  Then, each week, several members of each targeted chapter are chosen for random testing.  The result is that about 5% of the membership of targeted organizations is tested each week.  Finally, a failure to take or pass any drug test results in discipline.  The range of discipline is varied depending on the nature of the infraction, the history of the student, and other individualized factors.  In short, this testing program appears to be a broad based, intensive effort, unlike anything seen before on any other campus.

The practical effects of a program like this could be far-reaching.  Indeed one former fraternity member at UA asserted that drug testing is “. . .  killing the fraternity from the inside without even knowing it”.  It is easy to see how any individual would potentially balk at giving drug test results not just to a fraternity, but to the school itself and in this case, the State of Alabama.  By participating in such a program, the severity of potential discipline is raised from internal fraternity discipline, to suspension or expulsion from school, and potentially even criminal prosecution.  It is a heavy handed approach that could certainly deter some people from joining fraternities, and may well convince active members to leave their fraternity rather than subject themselves to potentially severe sanctions.

The legal implications of such a program are potentially numerous.  Without knowing the full details of the program, it is not possible to definitively state whether this program is lawful or not.  But on the surface, there are aspects of this program that are undoubtedly questionable.

First and foremost, for the government to compel a drug test there must normally be at least a reasonable suspicion of drug use based upon articulable and specific facts.  Here, it appears that the basis for administering the test is based not any specific suspicion of drug use, but rather upon membership in a fraternal organization.

In some cases, courts have upheld programs which result in a brief search or seizure without any reasonable suspicion of unlawful activity.  OVI checkpoints are a good example of this kind of constitutionally sound program.  But, the key to this kind of program is that it is uniformly applied.  Here, the UA drug testing program is specifically not uniformly applied.  It appears to be targeted only at fraternal organizations, and indeed, not even every fraternal organization.  It seems more like a targeted investigation of specific subjects rather than a generally applied program such as an OVI checkpoint.

Finally, if individuals are targeted for testing based upon their membership in certain organizations, there is certainly an interference with the full exercise of that person’s right of association.  Again, whether this program might survive scrutiny will lie in the details of its application and processes.  But superficially, the program appears to be a constitutionally questionable chilling of these students’ right of association.

As stated above, we have not seen anything like the UA program at any other campus.  That said, these kinds of programs have a tendency to be replicated elsewhere.  Private institutions would have more leeway to implement a program like this without any constitutional concerns.  On public campuses, however, the details behind these programs will be critical to understanding whether or not they pass constitutional muster.  We will continue to monitor this issue as it unfolds before us.

1              http://www.al.com/news/index.ssf/2015/12/university_of_alabama_quietly.html