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Texas Seceding From Statewide High School Steroids Testing

Texas lawmakers appear likely to defund the state high school steroid testing program this summer. The Texas Sunset Advisory Commission, which reviews state programs, recommended the program be dropped unless the state wanted to increase spending to $5 million annually, on par with elite colleges. Should Texas decide to fully defund the program, New Jersey and Illinois will be the only states left in the country with statewide high school steroids testing programs.

The Prevalence of Performance-Enhancing Drugs

According to a recent study by the University of Pennsylvania, approximately 20 percent of high schools in the U.S. have student drug testing policies. However, these policies typically test for marijuana, amphetamines, opioids, cocaine, and PCP; not performance-enhancing drugs. Furthermore, new data suggests students in high school are more likely than ever to use performance-enhancing drugs, with the use of synthetic human growth hormone (HGH) more than doubling over the past year, from five to 11 percent (nine percent of teen girls and 12 percent of teen boys reported using synthetic HGH, respectively). In addition, steroid use among teens has increased from five to seven percent.

History of High School Steroid Testing

When a governmental agency tests an athlete for drugs, it must comply with the Fourth Amendment, which provides:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.

The Supreme Court has held that random drug testing programs are valid because they serve a compelling interest in public systems to deter the use of drugs.

Schools must also abide by the Fifth Amendment, which states, “No person shall be deprived of life, liberty, or property, without due process of law.” The Supreme Court has held that attending school and participating in athletics is a property right. Therefore, athletes must be granted a process for a hearing and appealing a positive drug test.

New Jersey was the first state to begin mandatory steroid testing in 2006. Shortly thereafter, Florida (which defunded its program in 2009), Illinois, and Texas all adopted programs aimed at curbing steroid use among high school students. Each state has developed its own unique testing, but all of them have one thing in common – they are highly unsuccessful at catching steroid users.

Between 2006 and 2008, New Jersey reported only two positive tests among 1,000 athletes tested. While some hailed the program as a success, many considered it a failure due to its cost ($100,000 annually) and use of testing only during postseason competition. Because athletes know when they will be tested, they can determine when to stop taking a given cycle of steroids and how to mask their existence. Furthermore, because athletes are not tested during the summer, students may use steroids over the summer to bulk up without the fear of detection.

Texas performs random, unannounced testing of athletes, both during and out of season (like New Jersey and Illinois, it does not test in the summer). During the 2007-08 school year, Texas tested 10,000 of its 700,000 high school athletes, part of a $3 million program, and reported only two positive tests. While Texas determined the testing was flawed due to the fractional number of drugs tested for, 10, compared to those available on the market, subsequent more rigorous testing yielded the same poor results. During the 2013-14, even with a more rigorous test, targeting approximately 60 drugs, only two athletes were caught out of the 2,633 tested. In total, after spending over $10 million testing more than 63,000 students, only a handful of cheaters were caught.

Hurdles for High Schools

Simply put, drug testing is expensive, inconsistent, and full of loopholes. Tests can cost up to $300 each, leaving states unable to afford to test a large number of athletes or monitor the same range of performance-enhancing drugs as professional leagues. While synthetic HGH is supposed to be available only through prescription, many products claiming to contain HGH are widely promoted and easy to access due to the inconsistent enforcement of regulations. Thus, due to their ease of access and lack of consistent testing, many students are able to use performance-enhancing drugs with impunity.

Those administering the testing are also required to provide advance notice to school officials when they are on campus. While this is supposed to remain confidential, numerous schools have been reprimanded for informing athletes prior to tests. In addition, although students are required to empty their pockets and lift their shirts above their waist, testing officials are not allowed to physically watch the athlete providing the urine sample due to privacy concerns. Many students reported they used the requirement of privacy to alter their samples.

Best Practices for High School to Combat the Use of Steroids

Studies have indicated the most effective ways to curb steroid use among high school athletes are through education and parental involvement. Education is a multi-level process that includes teaching athletes, coaches, trainers, and parents about the dangers associated with performance-enhancing substances. Effective education also includes teaching athletes about alternative ways to gain weight and strength through proper training and nutrition. Parental involvement should include candid discussion about the dangers of performance-enhancing substances. Furthermore, parents should review the ingredients of over-the-counter products used by their children and pay attention to warning signs of steroid use, including increased aggressiveness, rapid weight gain, and needle marks.

Schools that have testing policies need to ensure the policies are clear and test for a wide range of substances. Penalties for violating the policies should be simple, significant, and applied universally across all sports.

Contact David O. Fleischer (954-941-1844; dfleischer@bucknersportslaw.com) for additional recommendations relating to performance-enhancing drug issues.

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