Ragbir Braich

Legal Research

 

Mind Drugs

 

I.     Introduction

A rising trend among college students is to abuse prescription drugs to improve their academic performance. The two most common drugs are Adderall and Ritalin, which are amphetamines that mimic the dopamine neurotransmitter in the brain.[1] These drugs provide aid people diagnosed with ADHD. They are available by prescription, however, many students believe that although they do not suffer from ADHD, these drugs will improve their performance on standardized tests. In a study of non-ADHD adults, increased levels of dopamine correspond with an enhanced interest in the activity at hand.[2] This enhanced interest is likely the reason why students who abuse such drugs feel they can focus better and have improved results on exams. The United States Army has allowed the use of medications including amphetamines and modafinil to enhance alertness in the battlefield. In fact, the military can require soldiers to take the medications for the sake of the military performance.[3] The military believes that the increased alertness is necessary for soldiers because they are subjected to missions that occur under tiresome conditions such as missions at night or lasting over several days. Therefore, the use of these drugs is required.

 

II.  Current Safeguards against Non-Prescribed Use

As mentioned, Adderall and Ritalin are prescription drugs, however, most college students currently taking them do not have a prescription. Under the Controlled Substances Act, these drugs are classified as Schedule II controlled substances.[4] The Act, which sets the framework for the federal government's regulation in the manufacturing and distribution, classifies drugs in five schedules, Schedule I, are drugs that are the most dangerous and least medicinal, to Schedule V, which are drugs that are the least harmful and most useful. Schedule II drugs are classified as having a high potential for abuse, a currently accepted medical use in treatment, and abuse of the drug may lead to severe psychological or physical dependence.[5] For example, cocaine like the amphetamines in Adderall, are Schedule II drugs. Illicit possession of Schedule II drugs can result with one year in prison and a minimum fine of $1,000 for the first offense.[6] On a university level, where there is a rising trend in the use of these drugs most universities make it a part of a universities code of conduct that the use and sale of prescription drugs is punished the same way a drug violation such as marijuana or cocaine would be punished.

III.         Controlling the abuse

The use of these drugs remains fairly common and used quite often. Also, there is no practice in place to stop students from taking the drugs before standardized tests such as the LSAT, MCAT, BAR, and other similar tests. One method for catching students who are using these drugs is to apply a contract theory of law, similar to the doping laws used to control the use of steroids in sports. When an athlete enters into competition, he has to sign a contract agreeing not to use certain substances, that will enhance performance this includes both legal and illegal.[7] The athlete also consents to random drug testing. In most sports this is done through a simple urine test due to the accuracy and simple means of conducting the test. If the athlete is found guilty of a doping violation, he will be disqualified from the competition and possibly suspended or banned from subsequent competitions. If an athlete tests positive for a banned substance, a prima facie case of guilt is established thus the athlete must show he is innocent.[8] Since all athletes cannot be tested in order to catch athletes violating the doping laws that they agreed to, the sports agencies conduct random drug testing. Applying that concept to college students would reduce the number of prescription drug violations. The best way is to incorporate the random drug testing in as part of the agreement when registering for the LSAT or Bar exam. Therefore, the student should expect to be tested and understand that not only will his results be void if he was using controlled substances, but that criminal penalties will also apply.

IV.         Fourth Amendment Protection

The Fourth Amendment Constitution protects an individual's right to be secure in his person against unreasonable searches and seizures.[9] The United States Supreme Court has applied the Fourth Amendment in cases involving drug testing.[10] The courts have required the state or its agent to show a particular, compelling reason to justify the drug test.[11] However, under some circumstances the Fourth Amendment has not been able prevent random drug searches of students. First, the Fourth Amendment protection is limited against only state actors. The organizations that administer standardized tests and the universities must be seen as state actors. For private universities it is unlikely that they will be seen as state actors. Even for state universities it has been held that they do not violate the Fourth Amendment.[12] In 1993, the Colorado Supreme Court in University of Colorado v. Derdeyn held the mandatory drug testing of a collegiate athlete, absent consent, was an unconstitutional search under the Fourth Amendment.[13] The court's holding relied on three specific factors: the university failed to provide advance notice that it administered random drug tests to student athletes, the university failed to offer Derdeyn sufficient time to apply to another college and the university failed to inform Derdeyn of the specific method used to administer the drug test.[14] In 1994, the California Supreme Court in Hill v. NCAA, held that the NCAA was not a state actor under the federal constitution.[15] Furthermore, the court held that the NCAA policy gave the athlete advance warning of the test and opportunity to consent to it.[16] The court also acknowledged that maintaining fair play and protecting the health of student athletes were sufficient reasons to justify the NCAA's drug-testing scheme.[17] Since most state universities can conduct random drug testing without the help of the federal government it is likely that they be seen as independent actors and not state actors. The important factors in determining whether random drug testing is allowed, is given advance warning, having the students consent to the drug testing, stating the methods used for drug testing, and having a sufficient reason to justify the drug testing. Thus, universities and organization made it clear that they will randomly sample student to be urine tested for drug immediately preceding or following the exam, that in order to take the exam they consent to this type of testing, and that this the purpose of this testing is to maintain academic integrity amongst students . Although this would likely not be considered a fourth amendment search it is possible that the fourth amendment will apply and require a reasonable means to search for drugs tests. A simple urine test will tell if there are amphetamines in a personís system, however courts measure reasonableness by weighing the intrusion against the proffered government interest.[18] However, if urine tests are deemed too intrusive there are less intrusive ways to conduct the same tests such as hair, saliva, and even sweat samples. Each of these tests has its own advantages and disadvantages, but it is likely that one of the testing measures is sufficient to use for these purposes.

V.  Conclusion

As seen above the constitutionality of testing students for using drugs such as Adderall and Ritalin to improve their test results has not been determined. Applying the same concepts that are used in sports makes it plausible that testing for drug use might occur in the future, but currently most efforts to curb the drugís use have been requiring a prescription for the use of such drugs.



[1] Nora Volkow, et al., Evidence that Methylphenidate Enhances the Saliency of a Mathematical Task by Increasing Dopamine in the Human Brain, 161 AM J. PSYCHIATRY. 1173-80 (2004).

[2] Id. At 1173

[3] 25 J. Contemp. Health L. & Pol'y 283

[4] 21 U.S.C.S. [section] 812 (LexisNexis 2006).

[5] http://www4.law.cornell.edu/uscode/html/uscode21/usc_sec_21_00000812----000-.html

[6] 21 U.S.C.S. [section] 844 (LexisNexis 2006). The relevant part of the statute reads as follows: "Unlawful acts; penalties. It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this title or title III."

[7] Low & Gendaszek, supra note 11, at 283-84.

[8] Slaney v. Int'l Amateur Athletic Fed'n, 244 F.3d 580, 589 (71h Cir. 2001).

[9] U.S. Const. amend. IV.

[10] Bd. of Educ. v. Earls, 536 U.S. 822, 838 (2002) (holding that the school district's drug-testing policy was constitutional); Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 666 (1995) (holding that the Vernonia drug-testing program was constitutional).

[11] Earls, 536 U.S. at 838; Vernonia, 515 U.S. at 660.

[12] NCAA v. Tarkanian, 488 U.S. 179 (1988).

[13] 863 P.2d 929 (1993).

[14] Id.

[15] 865 P.2d 633 (Cal. 1994).

[16] Id. at 637

[17] Id.

[18] Int'l Union v. Winters, 385 F.3d 1003, 1007 (6th Cir. 2004).