Colorado’s Drug Testing Is Ruled Unconstitutional

A district court judge in Boulder, Colo., declared the University of Colorado’s athletic drug testing unconstitutional Tuesday and ordered the school to discontinue the program, but a spokesman for the National Collegiate Athletic Assn. said the decision will not affect its policy of testing athletes involved in postseason play.

“They have their policy (at Colorado) and we have ours,” said James Marchiony, NCAA director of communications. “Their drug-testing policy has got nothing to do with ours. The suit is against the University of Colorado, not the NCAA.”

The NCAA requires member institutions to test athletes involved in postseason competition. But many Division I schools have implemented testing in-season programs of their own.

Tuesday’s ruling by Judge Joseph Bellipanni was handed down in a lawsuit filed by Dave Derdeyn, a former Colorado cross-country runner who maintained the university’s rapid-eye and random urine tests for drug use violated his constitutional rights.

Athletic Director Bill Marolt and other university officials could not be reached for comment.

James Joy, executive director of the Colorado chapter of the American Civil Liberties Union, which filed the lawsuit for Derdeyn, agreed that the ruling only affected the school, but added that should the decision be upheld on appeal, it would become legal precedent.

“And I think every school in Colorado will see it as law, and that it can be enforced as law,” he said. “And if I were on a coaching staff, I’d be real concerned about breaking that law.

“The NCAA can’t enforce an illegal contract and that’s what they have here. These guys (athletes) are the healthiest and toughest people around and there’s no reason to believe they’re taking drugs.”

Drug testing began at Colorado with required and random urine tests in 1984. The rapid-eye exams were instituted in 1986.

In his ruling, Bellipanni said urine testing is an intrusion and there is “little doubt” that a random urine test should be considered a search under constitutional law.

Rapid eye exams are not as intrusive, he said, but they are incorrect 97% to 98.5% of the time.

“Because of its disastrous ability to predict drug use, it functions more as an avenue to inject arbitrary judgments into an otherwise random selection of students for testing,” he wrote.

“The court permanently enjoins the university from requiring any urine samples from student athletes for the purposes of drug testing,” the judge said. “The university is further enjoined from requiring student athletes’ participation in the rapid eye exam procedure.”

This is not the first time testing on the collegiate level has been challenged.

Last year a Superior Court judge in Santa Clara County ruled that Stanford’s administration of the NCAA’s mandatory postseason test was an invasion of privacy.

The case was brought to court by diver Simone Le Vant, who had refused to sign a consent form that would have allowed the school to conduct the test. The form, used since 1987, is considered a waiver of constitutional rights.

In that case, Judge Conrad Rushing said he would allow testing in football and men’s basketball because those two sports had accounted for all 34--of 3,511 athletes tested--who had come up positive.