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F I S C A L I M P A C T R E P O R T

SPONSOR Anderson

ORIGINAL DATE

LAST UPDATED

01/31/08

HB 452

SHORT TITLE High School Athlete Steroid Testing

SB

ANALYST Escudero

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY08

FY09

$1,000.0 Non-Recurring

General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates: SB202

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Education Department (PED)

Department of Health (DOH)

SUMMARY

Synopsis of Bill

House Bill 452 enacts a new section of the Public School Code authorizing random drug testing

for anabolic steroids among high school varsity athletes throughout New Mexico. The bill

requires that by August 1, 2008, all local school boards must implement rules and procedures

and begin random drug testing for anabolic steroid use among varsity high school athletes. The

rules and procedures are to include protocols for addressing positive steroid test results.

HB 452 requires further that as a condition of a student participating in a varsity-level athletic

program, the student, or the parent, custodian, legal representative or guardian of the student,

must provide written consent to be tested for anabolic steroids.

HB 452 defines “varsity-level athletic program" to be an extracurricular athletic program

offering the highest level of competition offered by one school or school district against the

highest level of competition offered by an opposing school or school district.

House Bill 452 – Page

2

FISCAL IMPLICATIONS

The appropriation of $1,000.0 contained in this bill is a recurring expense to the general fund.

Any unexpended or unencumbered balance remaining at the end of FY09 shall revert to the

general fund

According to PED, the cost of steroid testing can be expensive. One vendor, Drug Test Systems,

offered steroid tests for $150 -$170 per test.. Another vendor, Toxicology Associates Inc.,

charges $450 per test. Robert Zayas, the Director of Communications at the New Mexico

Activities Association, estimates that there are 42,000 student high school athletes in New

Mexico. If one-third of this number plays at the varsity level, there are 14,000 students eligible

for a random drug test. Depending on how many random tests are done, and what other

administrative costs are associated with a school district’s testing program, $1,000.0 may be a

limited amount to establish effective drug testing statewide. Unless districts receive new funding

after the funding expires in 2010, they may choose not to conduct the drug testing.

The PED would have to designate staff to develop a rule requiring local boards to have steroid

testing policies, conduct a public hearing and file the rule. In addition, staff would be required to

flow money (either through a contract or flowing money to school districts) for the

implementation and operation of the random steroid testing program and monitoring of the

expenditure of monies. Estimated staff time for an Education Administrator 0 is 400 hrs x

$22.74/hr + 30% benefits= $11.8/year.

SIGNIFICANT ISSUES

According to PED, the federal Constitutional right to privacy is implicated by any policy calling

for the drug testing of student athletes. The 4

th

Amendment to the U.S. Constitution provides

that the Federal Government guarantee “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures…" The right to privacy

applies to students in public schools, although students have diminished rights. This fourth

amendment right to privacy applies to drug testing. Skinner v. Railway Labor Executives Ass’n,

489 U.S. 602 (1989).

A collective reading of applicable U.S. Supreme Court cases permits a conclusion that at least

under the federal Constitution, random urinalysis drug testing of public school students who are

involved in extracurricular activities may be permissible. New Jersey v. T.L.O.

, 469 U.S. 325

(1985); Vernonia School District v. Acton, 515 U.S. 646 (1995); Board of Education [..]

Pottawatomie v. Earls, 536 822 (2002).

Given the controversy in the area of mandatory drug testing of public school students, there is

likely to be a challenge to this program. It should be noted that in a choice between testing for

drugs on the basis of reasonable suspicion or randomly based only upon a student’s participation

in a high school varsity athletic program, HB 452 opts for random drug testing.

The bill does not indicate what a district or school should do if a student tests positive. Does a

student get only one chance. Also, it leaves development of due process and “false-positive"

testing to the school districts. A school district could not use the funds or its policy to test for

other controlled substances even if it had reasonable suspicion that a student had consumed a

drug other than anabolic steroids.

House Bill 452 – Page

3

The bill does not address such important considerations as:

•

whether drug test results can/must be turned over to law enforcement authority;

•

whether test results and related documents can/must be kept confidential and who can

access them;

•

whether the test results can be transferred to another school/school district if the student

changes schools;

•

whether the test results can be transferred to a college that the student enters after leaving

secondary school; and

•

whether drug test results can be placed in a student’s other educational records, which if

they could would implicate privacy concerns under the federal Family Educational Rights

and Privacy Act (FERPA).

It is not clear if the bill was intended to apply to charter schools since they are governed by a

governing body instead of by a school board. As currently drafted, it would not apply.

Presumably the child of a parent(s) refusing to sign a consent form cannot participate in high

school varsity athletic programs. Presumably, although the bill is silent, a child whose parents

signed a consent form but who refuses to submit to drug testing would be denied further

participation in the varsity sports.

In 2005, a statewide Steroid Task Force recommended a pilot study, which the PED conducted in

four school districts throughout the state. Each of those districts had some sort of a drug testing

policy. The only positive test result was of a female student who was not involved in any

athletic activity.

According to AOG, anabolic steroids are classified as Schedule III controlled substances by

federal law. See 21 U.S.C. 812. New Mexico state law also prohibits the use, possession or

distribution of anabolic steroids (without prescription) and requires that the law be distributed to

each licensed athletic trainer by the Athletic Trainers Advisory Board and displayed prominently

in the athletic locker rooms of all state post-secondary and public schools. NMSA Section 30-31-

41 (1978). The New Mexico Public Education Department has adopted a rule authorizing local

school boards to regulate the use of controlled substances in public schools. NMAC

6.11.2.9B(4).

The United States Supreme Court, and the New Mexico Supreme Court, have both recognized

that requiring a person to provide a urine sample for drug testing constitutes a search under the

Fourth Amendment to the United States Constitution. See Jaramillo v. City of Albuquerque 125

N.M. 194, 958 P.2d 1244 (1998), quoting Skinner v. Railway Labor Executives' Ass'n., 489 U.S.

602, (1989); also citing Vernonia School District 47J v. Acton, 515 U.S. 646 1995).

In the Vernonia School District case, the United States Supreme Court upheld a random drug

testing regime implemented by the local public schools in Vernonia, Oregon. Under that

regimen, student athletes were required to submit to random drug testing before being allowed to

participate in sports. The Supreme Court held that although the tests were searches under the

Fourth Amendment, they were reasonable in light of the schools' interest in preventing teenage

drug use. The Court also held that among public school students, athletes have even less of an

expectation of privacy and that they subject themselves to additional regulation and medical

House Bill 452 – Page

4

screenings in order to participate in school sports. 515 U.S. at 657.

The United States Supreme Court decided the Vernonia case after the facts developed in the

United States District Court indicated that drug use was a major problem in the school district;

that student athletes were the “leaders" of the drug culture; that the school district administration

was “at its wits end", that drug use had reached “epidemic proportion", and disciplinary and

motivational problems had increased as a result of the increased drug and alcohol use among

students. 796 F.Supp.1354,1357 (D. Ore. 1992).

After the Vernonia case was decided, the Supreme Court of the United States ruled that

mandatory drug testing of students participating in any competitive extracurricular activities

(band, choir, cheerleading, athletics etc.) was constitutional and that it was not necessary to show

that there was a “drug problem" in the schools before implementing random drug testing. Board

of Education v. Earls, 536 U.S. 822 (2002).

However, the drugs tested for in those cases were not limited to anabolic steroids as required by

this bill. The legality of limiting testing to only those specific drugs without proving that the use

of those drugs within New Mexico schools warrants such testing, will most likely be examined

by the courts.

Further, the school districts involved in those cases had implemented strict procedural safeguards

protecting the privacy of the students and insuring the accuracy of the testing. They had also

adopted disciplinary penalties which were judged to be commensurate with the violations.

ADMINISTRATIVE IMPLICATIONS

According to PED, because the drug testing implementation funds are appropriated to the PED,

the PED would have the fiduciary responsibilities of seeing that the funds are properly accounted

for and expended consistent with the law. Given that the bill would go into effect on July 1,

2008 and the program commences on August 1, 2008, it is highly unlikely the PED could

disseminate the funds in an equitable manner by August 1

st

. Whether budgets would be set up

to move the money as between the Department of Finance and Administration and the PED in

July of 2008 is also questionable.

PED would need to establish a rule requiring local school boards to adopt steroid testing policies

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

This bill is a duplicate of SB 202.

OTHER SUBSTANTIVE ISSUES

According to PED, if passed, this bill would become effective on July 1, 2008, but would require

that rules and procedures be implemented, and that random drug testing would begin by August

1, 2008, one month after enactment. It is unrealistic to require school boards to adopt such

policies just one month after the enabling law is enacted. The bill requires that rules and

procedures that are developed also include protocols for addressing positive anabolic steroid test

results. State law requires that when local school boards establish school discipline policies, they

must hold public hearings and involve parents, school personnel and students in the development

House Bill 452 – Page

5

of these policies. NMSA 1978, § 22-5-4.3 (A) Any discipline policies developed regarding

positive anabolic steroid test results would need to require such involvement from the public,

parents, personnel and students. The existing legal requirement makes it more unlikely that drug

testing could begin by August 1, 2008. Perhaps a longer time could be considered.

The bill’s definition of “varsity-level athletic program" conflicts with the New Mexico Activities

Association’s (NMAA) definition of Varsity, which is “The highest level or principal team which

represents its school in Interscholastic Activities. (Each school is allowed only one team per

gender, where applicable, at the varsity level). In neither of the definitions is “high school"

mentioned.

Steroid testing is conducted by collecting a urine sample from a student, which will pose

significant logistical issues for both the student and school administrators who must monitor and

process the collection.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

According to AOG, random drug testing and administration of appropriate disciplinary action for

illegal drug use in public schools will continue to be regulated by the local school boards.

PME/mt