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Abstract: The Fourteenth Amendment to the United States Constitution provides a right of privacy that protects against unwarranted governmental interference with an individual's contraceptive choices. This privacy right protects minors as well as adults. School officials serve as government actors for the purpose of Fourteenth Amendment analysis. Zero tolerance drug policies are school disciplinary policies that mandate predetermined and frequently severe consequences for specific offenses, often including the possession of legally prescribed or legally obtained over-the-counter medication. Zero tolerance drug policies have resulted in the often very public discipline of students for possessing a wide array of otherwise legal medication, including birth control pills, without parental permission. This Comment argues that schools may not enforce their discipline policies in ways that violate a minor's right of privacy with regard to contraceptive choices. Zero tolerance policies as applied to minors in possession of legally obtained contraceptives must not force students to notify their parents of their procreative choices in order to comply with the policy. At a minimum, such policies must include a bypass option that enables students to avoid acquiring parental consent in order for those students to possess contraceptives at school. In addition, zero tolerance policies may not violate a minor's constitutional right to be free from state dissemination of their private affairs-a natural consequence of disciplining students in possession of contraceptives in violation of the zero tolerance policy.
Erin is a typical high school junior.1 She has never been in trouble at school. One afternoon, a teacher sees Erin put a package of pills in her pocket. The teacher reports this to the school administration and Erin is called into the principal's office. Erin readily acknowledges that she is in possession of birth control pills, which she obtained legally at a local health clinic. The principal informs Erin that possession of medication without parental permission violates the school's "zero tolerance" policy,2 and that the school is required to suspend her under that policy. Erin has not told her parents that she is taking birth control pills, a fact that her parents necessarily become aware of when informed of her suspension by the school. Erin's school community and the local media also become aware of the fact that the school suspended her...