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Ezra Reyes
Ezra Reyes

Frivolous Dress Order Dress Order Vol.7l



By its nature, sports competition demands highly disciplined physical activity conducted in accordance with a special set of social norms. Unlike the general population, student athletes undergo frequent physical examinations, reveal their bodily and medical conditions to coaches and trainers, and often dress and undress in same-sex locker rooms. In so doing, they normally and reasonably forgo a measure of their privacy in exchange for the personal and professional benefits of extracurricular athletics.




Frivolous Dress Order Dress Order Vol.7l



A student athlete's already diminished expectation of privacy is outweighed by the NCAA's legitimate regulatory objectives in conducting testing for proscribed drugs. As a sponsor and regulator of sporting events, the NCAA has self-evident interests in ensuring fair and vigorous competition, as well as protecting the health and safety of student athletes. These interests justify a set of drug testing rules reasonably calculated to achieve drug-free athletic competition. The NCAA's rules contain elements designed to accomplish this purpose, including: (1) advance notice to athletes of testing procedures and written consent to testing; (2) random selection of athletes actually engaged in competition; (3) monitored collection of a sample of a selected athlete's urine in order to avoid substitution or contamination; and (4) chain of custody, limited disclosure, and other procedures designed to safeguard the confidentiality of the testing process and its outcome. As formulated, the NCAA's regulations do not offend the legitimate privacy interests of student athletes.


The trial court also found the NCAA had failed to produce evidence that certain banned substances, e.g., amphetamines, diuretics, marijuana, and heroin, actually enhance athletic performance. It did find, however, that marijuana clearly impairs athletic performance and that cocaine may do so. Addressing the alleged perception that use of certain drugs may enhance performance, the court found that drugs are generally not perceived by college athletes and coaches to enhance performance or to be "a major problem." With respect to steroid use, the "perception," according to the court, is that steroids "might only help certain types of positions in football."


To resolve the dispute between the parties, we address three questions of first impression in this court: (1) Does the Privacy Initiative govern the conduct of private, nongovernmental entities such as the NCAA; and (2) if it does, what legal standard is to be applied in assessing alleged invasions of privacy; and (3) under that standard, is the NCAA's drug testing program a violation of the state constitutional privacy right?


As the argument in favor of Proposition 11 observes: "At present there are no effective restraints on the information activities of government and business. This amendment creates a legal and enforceable right of privacy for every Californian. [] The right of privacy ... prevents government and business interests from collecting and stockpiling unnecessary information about us and from misusing information gathered for one purpose in order to serve other purposes or to embarrass us. [] ... The proliferation of government and business records over which we have no control limits our ability to control our personal lives.... [] Even more dangerous is the loss of control over the accuracy of government and business records on individuals.... Even if the existence of this information is known, few government agencies or private businesses permit individuals to review their files and correct errors. [] ... Each time we apply for a credit card or a life insurance policy, file a tax return, interview for a job[,] or get a drivers' license, a dossier is opened and an informational profile is sketched." (Ballot Argument, supra, at pp. 26-27, italics omitted and added.)


Although none of our decisions has squarely addressed the question whether our state constitutional right to privacy may be enforced against private parties (we had no occasion to decide the issue in Schmidt v. Superior Court (1989) 48 Cal. 3d 370, 389, fn. 14 [256 Cal. Rptr. 750, 769 P.2d 932]), the Courts of Appeal have consistently answered in the affirmative. (See, e.g., Wilkinson v. Times Mirror Corp. (1989) 215 Cal. App. 3d 1034, 1040-1044 [264 Cal. Rptr. 194] [hereafter Wilkinson]; Miller v. National Broadcasting Co. (1986) 187 Cal. App. 3d 1463, 1489-1493 [232 Cal. Rptr. 668, 69 A.L.R.4th 1027]; Cutter v. Brownbridge (1986) 183 Cal. App. 3d 836, 841-843 [228 Cal. Rptr. 545]; Kinsey v. Macur (1980) 107 Cal. App. 3d 265 [165 Cal. Rptr. 608]; Porten v. University of San Francisco (1976) 64 Cal. App. 3d 825, 829-830 [134 Cal. Rptr. 839] [hereafter Porten]; see also Chico Fem. Women's Health Cr. v. Butte Glen Med. S. (E.D.Cal. 1983) 557 F. Supp. 1190, 1201-1203.)


The principal focus of the Privacy Initiative is readily discernible. The Ballot Argument warns of unnecessary information gathering, use, and dissemination by public and private entities-images of "government snooping," computer stored and generated "dossiers" and " 'cradle-to-grave' profiles on every American" dominate the framers' appeal to the voters. (Ballot Argument, supra, at p. 26.) The evil addressed is government and business conduct in "collecting and stockpiling unnecessary information ... and misusing information gathered for one purpose in order to serve other purposes or to embarrass ...." (Id. at p. 27.) "The [Privacy Initiative's] primary purpose is to afford individuals some measure of protection against this most modern threat to personal privacy." (White v. Davis, supra, 13 Cal.3d at p. 774.)


[3] When an initiative contains terms that have been judicially construed, " ' " 'the presumption is almost irresistible' " ' " that those terms have been used " ' " 'in the precise and technical sense' " ' " in which they have been used by the courts. (In re Harris (1989) 49 Cal. 3d 131, 136 [260 Cal. Rptr. 288, 775 P.2d 1057], quoting People v. Weidert (1985) 39 Cal. 3d 836, 845-846 [218 Cal. Rptr. 57, 705 P.2d 380]; see also In re Lance W., supra, 37 Cal.3d at p. 890, fn. 11 ["The adopting body is presumed to be aware of existing laws and judicial construction thereof."]; People v. Weidert, supra, 39 Cal.3d at p. 844; In re Jeanice D. (1980) 28 Cal. 3d 210, 216 [168 Cal. Rptr. 455, 617 P.2d 1087] [same effect].) Therefore, in order to discern the meaning of "privacy" as used in the Privacy Initiative, we must examine the various legal roots of the privacy concept.


Our reference to the common law as background to the California constitutional right to privacy is not intended to suggest that the constitutional right is circumscribed by the common law tort. The ballot arguments do not reveal any such limitation. To the contrary, common law invasion of privacy by public disclosure of private facts requires that the actionable disclosure be widely published and not confined to a few persons or limited circumstances. (Rest.2d Torts, 652D, com. a.) In contrast, the ballot arguments describe a privacy right that "prevents government and business interests from collecting and stockpiling unnecessary information about us and or misusing information gathered for one purpose in order to serve other purposes or to embarrass us." (Ballot Argument, supra, at p. 27.) Obviously, sensitive personal information may be misused even if its disclosure is limited. fn. 7


Concurring justices in Griswold sought to place the interest in marital privacy violated by the anticontraception law on other, less "penumbral", constitutional grounds. (381 U.S. 479: " 'tradition and [collective] conscience of our people' " regarding fundamental rights manifested in Due Process Clause and Ninth Amendment (id., at p. 493 [14 L.Ed.2d at p. 520]) (conc. opn. of Goldberg, J.); "basic values 'implicit in the concept of ordered liberty' " in Fourteenth Amendment (id., at p. 500 [14 L.Ed.2d at pp. 524-525]) (conc. opn. of Harlan, J.); due process denied because no "end" of government could support state law at issue (id., at p. 507 [14 L.Ed.2d at pp. 528-529]) (conc. opn. of White, J.).) The concurring justices' approach has been preferred to the more amorphous "penumbral" privacy analysis in at least one recent case. (Cruzan v. Missouri (1990) 497 U.S. 261, 279, fn. 7 [111 L. Ed. 2d 224, 242, 110 S. Ct. 2841] [right to refuse medical treatment [7 Cal. 4th 29] analyzed as Fourteenth Amendment liberty interest rather than part of right to privacy].)


Informational privacy is the core value furthered by the Privacy Initiative. (White v. Davis, supra, 13 Cal.3d at p. 774.) A particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity. Such norms create a threshold reasonable expectation of privacy in the data at issue. As the ballot argument observes, the [7 Cal. 4th 36] California constitutional right of privacy "prevents government and business interests from [1] collecting and stockpiling unnecessary i