Random Drug Testing of NCAA Athletes Upheld : Rights: California’s top court sets a new standard for privacy claims. Workplace repercussions are possible.

In a landmark decision, the California Supreme Court on Friday upheld the NCAA’s policy of random drug testing of athletes, ruling that it did not violate their state constitutional guarantee of privacy.

The long-awaited decision was the result of a case involving two Stanford University athletes, who sought an injunction in 1988 preventing the testing by the National Collegiate Athletic Assn.

For six years, Stanford students have not been required to take the tests because of lower court decisions that were upheld on appeal. Now they will have to submit to the screening.

“Some student athletes felt disadvantaged by having to go through the procedure and not have their competitors go through it,” said Frank Uryasz, NCAA director of sport sciences. “We’re extremely gratified that the Supreme Court upheld the program, and what that means to us is we can apply it now uniformly throughout the nation.”

The high court’s ruling may have repercussions beyond the playing field.

By establishing a new standard for evaluating certain kinds of privacy claims, the divided court has probably made it more difficult for workers to challenge drug testing and other kinds of screening and monitoring.

The justices specifically declined to rule on drug testing in the workplace, noting that cases will be reviewed on their individual merits. Workers may reasonably expect more privacy than college athletes competing in major events, the court said.

But Victor Schachter, a lawyer who represented an association of some of the state’s largest employers in the case, said he was “very optimistic” that employers will be able to defend their drug testing under the new, more permissive standard established by the court.

“You are dealing with what has been viewed as the most intrusive kind of testing--random, without notice--and if the court has upheld the constitutionality of that, then all those less intrusive tests . . . will surely pass constitutional muster,” he said.

Less intrusive tests would include targeting employees for testing because of suspicious behavior or screening all job applicants for drugs. Employees have also objected to psychological testing and certain kinds of surveillance by business.

The 6-1 decision marks the first time the high court has ruled on whether the private sector, as well as government, must abide by a constitutional privacy guarantee passed by voters in 1972.

Although the court said private entities are covered by the constitutional provision, a majority of justices also held that business need not always meet the strict standards imposed on government when infringing on privacy.

Government must show compelling reasons, but the court said private entities in many cases need only show that the invasion is justified by legitimate interests and needs.

“Invasion of a privacy interest is not a violation of the state constitutional right to privacy if the invasion is justified by a competing interest,” Chief Justice Malcolm Lucas wrote for the majority.

For example, he wrote, if confidential information extracted from a person is shielded from everyone but those “who have a legitimate need to know,” there is no privacy violation.

To allege a privacy violation, victims must show that they have a legally protected privacy interest, a reasonable expectation of privacy in the circumstances and that the conduct by the offending party constituted a serious invasion, the majority said.

The case troubled the court, with three justices weighing in with separate opinions. Justice Stanley Mosk complained that privacy claims “are practically doomed to fail” in the future under the court’s new definitions and standard.

“Today the majority take away from Stanford student athletes--and all other Californians--the right to privacy guaranteed by the California Constitution,” wrote Mosk, the most liberal member of the conservative court.

After the two Stanford University athletes won an injunction in 1988, a Court of Appeal upheld the injunction, and the NCAA appealed to the high court.

For championship or postseason bowl games, the NCAA requires some athletes to urinate into a beaker while an official monitor watches. The association selects the athletes to be tested at random or on the basis of their performance or the suspicion of drug use.

The program is designed to deter drug use. The NCAA tests 9,000 student athletes each year and fewer than 1% are ruled ineligible because of drugs.

The court majority, in overturning the lower courts’ decisions, wrote that the NCAA has “self-evident interests in insuring fair and vigorous competition as well as protecting the health and safety of student athletes.”

But Mosk, in a stinging and lengthy dissent, complained that the “NCAA is now free to use in California the weapons it had chosen for its ‘war on drugs.’ ” He noted that the trial court found that it was not necessary to have direct monitoring of an athlete urinating to ensure a valid sample. He also said that an NCAA justification of the program--to show that it is serious about the war on drugs--is an unacceptable justification.

Justice Joyce L. Kennard accepted most of the majority analysis but said the Stanford students should have been given an opportunity to return to court and argue their case under the new, more permissive standard established Friday.

Justice Ronald George, who is usually considered part of the conservative majority, objected to the creation of a new standard. He also criticized the majority for setting forth new conditions for filing a challenge charging privacy intrusions, complaining that they are likely “to bar privacy claims that properly should be permitted to go forward.”

Simone LeVant, a former diver for Stanford who filed the lawsuit against the NCAA, said she still regards being forced to urinate in front of a monitor “degrading and humiliating.”

“I am really disappointed in the decision,” said LeVant, 29, now a paralegal in San Francisco. “I still feel it’s an invasive test.”

Robert Van Nest, one of the attorneys representing the Stanford students, agreed that the decision was a “defeat for college athletes.” But he said it is unclear how the case will affect the workplace.

Employers will have to prove they have a legitimate and reasonable basis for testing employees for drugs, particularly if the intrusion is severe, he said.