BILL NUMBER: SB 1386 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 23, 2004
PASSED THE ASSEMBLY AUGUST 17, 2004
AMENDED IN ASSEMBLY AUGUST 12, 2004
AMENDED IN ASSEMBLY JUNE 30, 2004
AMENDED IN ASSEMBLY JUNE 21, 2004
AMENDED IN ASSEMBLY JUNE 16, 2004
AMENDED IN SENATE MAY 11, 2004
AMENDED IN SENATE MAY 3, 2004
AMENDED IN SENATE APRIL 12, 2004
AMENDED IN SENATE APRIL 12, 2004
INTRODUCED BY Senator Vasconcellos
(Coauthor: Assembly Member Goldberg)
FEBRUARY 18, 2004
An act to add Article 9 (commencing with Section 49052) to Chapter
6 of Part 27 of the Education Code, relating to pupils.
LEGISLATIVE COUNSEL'S DIGEST
SB 1386, Vasconcellos. Pupils: drug and alcohol testing.
Existing law authorizes a superintendent or principal of a school
to suspend or expel a pupil who commits one or more of enumerated
acts including, among others, certain specified acts regarding the
use, possession, or offering of intoxicants.
This bill would provide for the drug or alcohol testing of a pupil
only upon a reasonable suspicion, as defined, that the pupil is
unlawfully using or has unlawfully used a controlled substance, as
specified, or alcohol. The bill would require a school district, if
it adopts a drug and alcohol testing policy, to provide adequate
notice of the policy to the parent or guardian. The bill would also
restrict access to test results to specified individuals. The bill
would provide that a school district should seek to ensure that a
pupil who tests positive for the unlawful use of drugs or alcohol is
referred to a school counselor, a substance abuse professional, or
other appropriate school staff, to develop a course of treatment to
address the unlawful use of drugs or alcohol.
The bill would also authorize a school district to conduct a
random testing program if specified conditions are met, and would
require a school within a district that conducts that testing program
to conduct certain surveys and to report to the governing board of
the school district.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 9 (commencing with Section 49052) is added to
Chapter 6 of Part 27 of the Education Code, to read:
Article 9. Drug and Alcohol Testing
49052. (a) The Legislature finds and declares all of the
following:
(1) All pupils and staff in the public schools have an express and
inalienable right to attend campuses that are safe, secure, and
peaceful, under subdivision (c) of Section 28 of Article I of the
California Constitution.
(2) Pupils who abuse drugs or alcohol may increase risks to the
health and safety of all pupils and negatively impact the learning
environment of their schools.
(3) All individuals have an express and inalienable right to
privacy under Section 1 of Article I of the California Constitution.
(4) Random, suspicionless drug and alcohol testing impairs the
trust and cooperation between parents, pupils, and school staff that
is instrumental to a productive learning environment, thereby
distracting pupils, educators, and administrators, from the core
educational mission of the public schools.
(5) Dr. Ryoko Yamaguchi, Dr. Lloyd D. Johnston, and Dr. Patrick M.
O'Malley, in an article appearing in the April 2003, edition of the
Journal of School Health, conclude that random drug testing is not
an effective deterrent to drug use by pupils.
(6) Random drug and alcohol testing programs are costly, absorbing
scarce funds that would be better used on core curricula, school
security, and drug and alcohol use prevention, education, and
treatment.
(7) In the August 1996 issue of Pediatrics, the American Academy
of Pediatrics Committee on Substance Abuse concluded that pupil
participation in mass random, suspicionless drug screening programs
should not be a prerequisite to participation in school activities.
The committee also reaffirmed its position that the appropriate
response to the suspicion of drug abuse in a young person is the
referral to a qualified health care professional for a comprehensive
evaluation.
(8) Pupils should not be required to disclose their prescription
medication regimen to school officials in the absence of a medical
emergency or an otherwise compelling medical need. Random,
suspicionless drug testing often requires a pupil to reveal private
medical information to nonmedical school personnel.
(b) (1) It is the intent of the Legislature to ban the costly and
ineffective practice of random, suspicionless drug and alcohol
testing, while preserving the authority of school officials to
suspend, expel, or otherwise discipline pupils who violate health and
safety rules by using, distributing, or selling drugs or alcohol.
(2) It is the intent of the Legislature to authorize local school
officials to use drug and alcohol testing based upon a reasonable
suspicion of the unlawful use of drugs or alcohol.
49053. (a) (1) No school district may require or request a pupil
to submit to testing of any sample of a pupil's urine, hair, or other
bodily tissue or bodily fluid to determine drug or alcohol use,
except as provided by this article. A school district may adopt a
drug and alcohol testing policy consistent with this article. Drug
and alcohol testing is permitted only upon a reasonable suspicion of
the unlawful use of a controlled substance enumerated by Chapter 2
(commencing with Section 11053) of Division 10 of the Health and
Safety Code, or alcohol.
(2) A school district that adopts a drug and alcohol testing
policy shall provide adequate notice of the policy to the parent or
guardian of a pupil enrolled in the school district.
(b) For purposes of this article, "reasonable suspicion" means
articulable facts, together with rational inferences from those
facts, warranting an objective suspicion that a pupil is unlawfully
using or has unlawfully used a controlled substance enumerated by
Chapter 2 (commencing with Section 11053) of Division 10 of the
Health and Safety Code, or alcohol. Reasonable suspicion may include
knowledge of the commission by a pupil of the acts enumerated in
subdivision (c) or (d) of Section 48900.
(c) Reasonable suspicion may not be based upon any of the
following factors:
(1) Race.
(2) National origin.
(3) Gender.
(4) Socioeconomic status.
(5) Sexual orientation.
(6) Suspicion or evidence of drug use among the pupil's family
members or peer group.
(7) Disability or medical condition.
(8) Religion.
(d) Test results shall be treated as confidential medical records
and shall be accessible only to the following individuals:
(1) The pupil subject to testing.
(2) The parent or guardian of the pupil.
(3) The principal or his or her designee who is directly
responsible for school discipline and safety.
(4) Appropriate school staff and certified or licensed health care
professionals employed by or working with a school district,
including physicians, registered nurses, advanced nurse
practitioners, counselors, and substance abuse professionals, for
whom the information is necessary to facilitate an individualized
course of action for the pupil that addresses the unlawful use of
drugs or alcohol and supports scholastic success.
(5) A county superintendent of schools and district superintendent
of schools.
(6) Appropriate law enforcement authorities pursuant to Section
48902, individuals identified pursuant to Section 49075 or described
in paragraph (1) of subdivision (b) of Section 49076, or other
individuals pursuant to Section 49077.
(e) A school district should seek to ensure that any pupil who
tests positive for the unlawful use of drugs or alcohol is referred
to a school counselor, a substance abuse professional, or other
appropriate school staff. The purpose of such a referral should be
the development of an individualized course of treatment that
addresses the unlawful use of drugs or alcohol and supports
scholastic success.
(f) Nothing in this article shall be construed to limit the
ability of a school or school district to discipline a pupil under
Article 1 (commencing with Section 48900).
49054. Notwithstanding Section 49053, a school district may adopt
a policy to randomly test pupils for drug and alcohol use only if
all of the following conditions are met:
(a) The governing board of the school district adopts the policy
at a noticed public hearing, records member votes on the issue, and
stipulates written justifications for adopting the policy.
(b) The program is voluntary for both parents and pupils. Prior
written consent of the pupil and his or her parent or guardian is
required for participation. If a pupil is 18 years of age or older,
only his or her prior consent is sufficient for participation. A
pupil or parent may revoke consent at any time. If a pupil less than
18 years of age withdraws consent, the parents of the pupil shall be
notified.
(c) The consent to random testing is not a condition for
participation in school or extracurricular activities.
(d) A school district employee does not participate in collection
or analysis of urine, hair, or other bodily tissue or bodily fluid of
a pupil.
(e) A pupil participating in the testing program is selected at
random from a pool of volunteer candidates by an independent drug and
alcohol testing company or agency that is certified by the Drug and
Alcohol Testing Industry Association.
(f) Test results are maintained private and confidential. The
testing agency shall report its findings only to the pupil and the
parent or guardian of the pupil.
(g) Random testing programs are not funded from state or local tax
revenues. Random testing programs shall be funded exclusively by
any of the following sources:
(1) Direct payment of fees from parents, guardians, or pupils to
the testing company duly authorized by a school or school district to
conduct its random testing program.
(2) Fees collected by a school or school district from parents,
guardians, or pupils to support noncurricular programs or activities.
(3) Federal grants expressly intended to fund random drug and
alcohol testing programs.
(4) Grants from private, nongovernmental entities expressly
intended to fund random drug and alcohol testing programs.
(h) The drug and alcohol testing company or agency does not use
private or personal information gathered from pupils to promote or
otherwise encourage the purchase of additional services. Personal
information obtained directly or indirectly from activities on school
district property shall not be provided to any other entity,
business, or subsidiary not directly involved in processing the test.
That personal information includes, but is not limited to, names,
physical addresses, cellular and landline telephone numbers, and
e-mail addresses.
(i) The school district notifies the Superintendent of Public
Instruction of its implementation of a voluntary random drug and
alcohol testing program.
49055. A school within a school district that adopts a policy
pursuant to Section 49054 shall do both of the following:
(a) Enroll in the California Healthy Kids Survey or conduct a
similar anonymous survey of pupils to ascertain what effect, if any,
random testing has on rates of illicit drug and alcohol use among
pupils, and notify the parents of pupils surveyed pursuant to
subdivision (b) of Section 51938.
(b) Make an annual report to the governing board of the school
district on what effect, if any, random testing has on the rates of
illicit drug and alcohol use among pupils.