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HILL v. NATIONAL COLLEGIATE ATHLETIC ASSN.
7 Cal.4th 1 (1994)
865 P.2d 633
26 Cal. Rptr.2d 834
JENNIFER HILL et al., Plaintiffs and Respondents,
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant and Appellant; BOARD OF TRUSTEES OF LELAND STANFORD JUNIOR UNIVERSITY, Intervener and Respondent.
Docket No. S018180.
Supreme Court of California.
January 28, 1994.
COUNSEL
Pillsbury, Madison & Sutro, C. Douglas Floyd, Craig E. Stewart, Swanson, Midgley, Gangwere, Clarke & Kitchin, George H. Gangwere, John J. Kitchin, Archer & Hanson, Richard J. Archer and Kristina Hanson for Defendant and Appellant.
Covington & Burling, Gregg H. Levy, Jeffrey Pash, Jeffrey S. Harleston, Paul, Hastings, Janofsky & Walker, Robert F. Walker, Mary C. Dollarhide, Schachter, Kristoff, Orenstein & Berkowitz, Victor Schachter and Thomas E. Geidt as Amici Curiae on behalf of Defendant and Appellant.
Margaret C. Crosby, Alan L. Schlosser, Edward M. Chen, Keker & Brockett, Keker, Brockett & Van Nest, Robert A. Van Nest, Susan J. Harriman, Michael J. Proctor and Karin Kramer for Plaintiffs and Respondents.
Joseph R. Grodin, John M. True III, Saperstein, Mayeda, Larkin & Goldstein and Brad Seligman as Amici Curiae on behalf of Plaintiffs and Respondents.
Debra L. Zumwalt, Susan K. Hoerger, Michael Roster, Howard, Rice, Nemerovski, Canady, Robertson, Falk & Rabkin, Jerome B. Falk, Jr., and Steven L. Mayer for Intervener and Respondent.
OPINION LUCAS, C.J. The National Collegiate Athletic Association (NCAA) sponsors and regulates intercollegiate athletic competition throughout the United States. Under the NCAA's drug testing program, randomly selected college student athletes competing in postseason championships and football bowl games are required to provide samples of their urine under closely monitored conditions. Urine samples are chemically analyzed for proscribed substances. Athletes testing "positive" are subject to disqualification.
Plaintiffs, who were student athletes attending Stanford University (Stanford) at the time of trial, sued the NCAA, contending its drug testing program violated their right to privacy secured by article I, section 1 of the California Constitution. Stanford intervened in the suit and adopted plaintiffs' position. Finding the NCAA's program to be an invasion of plaintiffs' right to privacy, the superior court permanently enjoined its enforcement against plaintiffs and other Stanford athletes. The Court of Appeal upheld the injunction.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. 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. For these reasons, as more fully discussed below, the NCAA's drug testing program does not violate plaintiffs' state constitutional right to privacy. We will therefore reverse the judgment of the Court of Appeal and direct entry of final judgment in favor of the NCAA.
1. Since the trial in this case, the NCAA has expanded its drug testing program and made more serious the consequences of a positive finding. At its 1990 convention, the NCAA approved a mandatory, year-round testing program, although the program was restricted to the testing of NCAA Division I football players through August 1992. Under the new program, first-time offenders lose an entire year's eligibility. Those testing positive a second time for "street drugs" lose another year of eligibility. And those caught using steroids twice are banned from intercollegiate athletics for life. (Note, Drug Testing and the Student Athlete: Meeting the Constitutional Challenge (1990) 76 Iowa L.Rev. 107, 116-117.) 2. The injunction provides as follows: "[I]t is hereby ordered that the National Collegiate Athletic Association is permanently enjoined from enforcing its requirement that Stanford [University] obtain signed drug testing consent forms from its athlet[es] or requiring Stanford athletes to sign such forms as a condition for participating in NCAA activities. NCAA may not declare any athlete ineligible or take punitive action against such athlete for failure to comply with or participate in the NCAA drug testing program or in any way discriminate against Stanford or its athletes by virtue of their refusal of this order." 3. The NCAA does not assert that its nonprofit status or any other aspect of its organization or operations entitles it to any immunity from laws or regulations generally applicable to businesses. We have been directed to no authority that would support such an assertion. (Contra, see NCAA v. Board of Regents of Univ. of Okla. (1984) 468 U.S. 85 [82 L.Ed.2d 70, 104 S.Ct. 2948] [NCAA subject to antitrust laws].) 4. See Luedtke v. Nabors Alaska Drilling, Inc. (Alaska 1989) 768 P.2d 1123, 1130 [79 A.L.R.4th 75] ["history surrounding the 1972 adoption of the privacy amendment by the voters of California evinces a clear intent that the clause applies to private as well as governmental action"]. 5. Ballot arguments often embody the sound-bite rhetoric of competing political interests vying for popular support. However useful they may be in identifying the general evils sought to be remedied by an initiative measure, they are principally designed to win votes, not to present a thoughtful or precise explication of legal tests or standards. The ballot arguments here are no different — their diverse references to "public" and "business" entities reflect perceived abuses of information-gathering power by both, but do not yield a useful legal standard with which to gauge the scope or limits of the right to privacy. 6. See, e.g., Restatement Second of Torts, sections 652B, comment d (intrusion into private affairs must be of a kind highly offensive to reasonable person), 652C, comment d (appropriation of commercial or other value of name or likeness is essential — mere incidental use not actionable), 652D, comment c (publicity given to private life must be highly offensive to reasonable person), 652E, comment c (false light publicity must be highly offensive to reasonable person). 7. Particularly when professional or fiduciary relationships premised on confidentiality are at issue (such as doctor and patient or psychotherapist and client), the state constitutional right to privacy may be invaded by a less-than-public dissemination of information. (See, e.g., Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1138 [277 Cal.Rptr. 354] [complaint stated cause of action against physicians for nonpublic disclosure of positive status for human immunodeficiency virus.].)
Moreover, the common law right of privacy "may not be violated by word of mouth only" and can be infringed only by "`printings, writings, pictures or other permanent publications....'" (Grimes v. Carter (1966) 241 Cal.App.2d 694, 698, 699 [50 Cal.Rptr. 808, 19 A.L.R.3d 1310]; see also Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 309 [44 Cal.Rptr. 404]; Melvin v. Reid, supra, 112 Cal. App. at p. 290.) Although the Privacy Initiative reveals no voter intent to extend the common law to create a cause of action for mere gossip, in an age of oral mass media (e.g., radio), widespread oral disclosure may tread upon our state constitutional right to privacy as readily as written dissemination. (H & M Associates v. El Centro (1980) 109 Cal.App.3d 399, 412 [167 Cal.Rptr. 392].) 8. Like other rights contained in or derived from provisions of the Bill of Rights, the federal constitutional right to privacy applies only against state action. (Pittsley v. Warish (1st Cir.1991) 927 F.2d 3 [violation of right to familial associational privacy requires state action directly aimed at parent-child relationship]; Miami Herald Pub. Co. v. Ferre (S.D.Fla. 1985) 636 F.Supp. 970, 975-976 [right to privacy secured only against state action]; Houghton v. New Jersey Mfgrs. Ins. Co. (E.D.Pa. 1985) 615 F.Supp. 299, 306 [same]; see also Lugar v. Edmonson Oil Co. (1982) 457 U.S. 922, 936-937 [73 L.Ed.2d 482, 495-496, 102 S.Ct. 2744] [Fourteenth Amendment generally imports state action element]; Nowak et al., Constitutional Law (2d ed. 1983) p. 497 ["The safeguards against deprivations of individual rights which are contained in the text of the Constitution specifically apply only to the activities of either the state or federal governments. Similarly, the Bill of Rights by its terms and necessary implications has been viewed only to limit the freedom of the government when dealing with individuals. Finally, the amendments to the Constitution which protect individual liberties [with the exception of the Thirteenth] specifically address themselves to actions taken by the United States or a state."].) 9. The "privacy" protected by the Privacy Initiative is no broader in the area of search and seizure than the "privacy" protected by the Fourth Amendment or by article I, section 13 of the California Constitution. (People v. Crowson (1983) 33 Cal.3d 623, 629 [190 Cal.Rptr. 165, 660 P.2d 389].) 10. While at least two of our cases decided before the Privacy Initiative referred in part to a constitutional right of privacy, a closer examination of those cases reveals a grounding in statutory or constitutional provisions not creating a "privacy" right. (In re Lifschutz (1970) 2 Cal.3d 415 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1] [no broad federal constitutional right of privacy in disclosures to psychotherapist under Griswold; court interprets psychotherapist-patient privilege as inapplicable to communications at issue]; City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 263, 267 [85 Cal.Rptr. 1, 466 P.2d 225, 37 A.L.R.3d 1313] [First Amendment right to participate in political activity infringed by financial disclosure law; cryptic reference to Griswold without mention of a distinct "right to privacy" in state Constitution].) Thus, appellate decisions inferring the creation of a "penumbral" Griswold-type state constitutional privacy right from our pre-Privacy Initiative cases represent an overbroad reading of the pertinent holdings. (See, e.g., Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 17 [267 Cal.Rptr. 618] citing Central Valley Chap. 7th Step Foundation v. Younger (1979) 95 Cal.App.3d 212, 234-235 [157 Cal.Rptr. 117] & People v. Porras (1979) 99 Cal.App.3d 874, 879 [160 Cal.Rptr. 627].) 11. See, e.g., Schmidt v. Superior Court, supra, 48 Cal.3d at pages 389-390 (right to familial privacy not violated by mobilehome park rule excluding persons under 25; no reference to "compelling interest;" court appears to balance privacy interest against competing interests); Long Beach City Employees Assn. v. City of Long Beach, supra, 41 Cal.3d at page 948, footnote 12 (polygraph testing of government employees by city; case decided on state equal protection grounds; "compelling governmental interest" reference in footnote dictum on constitutional right to privacy); Doyle v. State Bar (1982) 32 Cal.3d 12, 20 [184 Cal.Rptr. 720, 648 P.2d 942] (State Bar subpoena for trust account records; clients' privacy interest "is not absolute but must be balanced against the need for disclosure"); Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 164 [219 Cal.Rptr. 387, 707 P.2d 760] (right to elect sterilization as method of contraception; restriction on exercise of fundamental constitutional right must be justified by "compelling interest that is within the police power of the state in regulating the subject"); People v. Stritzinger (1983) 34 Cal.3d 505, 511 [194 Cal.Rptr. 431, 668 P.2d 738] (patient's privacy interest in psychotherapy must yield to compelling state interests; detection and prevention of child abuse constitutes such an interest); Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252 [172 Cal.Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118] (invalidating restrictions on state funding of abortions; applying standard employed in Bagley v. Washington Township Hosp. Dist. (1966) 65 Cal.2d 499, 505-507 [55 Cal.Rptr. 401, 421 P.2d 409], a political speech case, to rights of privacy and equal protection); City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123 [164 Cal.Rptr. 539, 610 P.2d 436, 12 A.L.R. 4th 219] (right to live in an alternative family with persons not related by blood, marriage, or adoption; abridgement must be justified by compelling public need); Loder v. Municipal Court (1976) 17 Cal.3d 859, 864 [132 Cal.Rptr. 464, 553 P.2d 624] (no privacy right to expungement of arrest record; reference to common law interest in public reporting of crime; reference to "compelling interest"); Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656-657 [125 Cal.Rptr. 553, 542 P.2d 977] (bank customer has reasonable expectation of privacy in bank records referring to customer's financial affairs; right of privacy must be balanced against civil litigant's right to discover facts). 12. In our culture, urination is generally regarded as private, but perhaps not absolutely private in all conceivable settings. "Men urinate side by side in public restrooms without embarrassment even though there is very little, and often no, attempt to partition the urinals. In hospitals and physicians' offices, urine samples of both men and women are generally taken by female nurses or technicians under conditions of privacy similar to those prescribed by [athletic drug testing rules]." (Dimeo v. Griffin (7th Cir.1990) 943 F.2d 679, 682.) 13. For example, in the leading case of Schaill by Kross v. Tippecanoe County School Corp. (7th Cir.1988) 864 F.2d 1309, the federal court of appeals upheld a program consisting in part of random drug testing of high school athletes, noting the "element of `communal undress' inherent in athletic participation" and central role of physical examinations in athletic training and evaluation. (Id. at p. 1318.) (See also Dimeo v. Griffin, supra, 943 F.2d at p. 682 [upholding drug testing of horse racing participants, noting generally reduced privacy expectations of athletes in general]; Shoemaker v. Handel (3d Cir.1986) 795 F.2d 1136, 1141-1143 [86 A.L.R.Fed. 405] [same]; O'Halloran v. University of Washington, supra,679 F.Supp. 997, 1005, revd. on other grounds (9th Cir.1988) 856 F.2d 1375 [upholding the NCAA's drug testing program, noting "communal undress" and routine physical examinations].) 14. The NCAA's drug testing program was adopted by, and has been continued with the overwhelming support of, the NCAA's member institutions, both public and private. Although Stanford has chosen to join plaintiffs in challenging the NCAA's drug testing program in court, the record does not reveal any Stanford-initiated opposition to the program through established NCAA channels, either at the NCAA's annual conventions or in any other NCAA setting. 15. Contrary to plaintiffs' argument, we do not regard the results of drug testing after the NCAA announced and began its program as the only persuasive evidence of actual drug use by student athletes. Plaintiffs ignore the self-evident deterrent effect of the program itself, particularly in the context of highly competitive sports activity. Once a program of drug testing is formally announced and in effect, athletes who wish to avoid the disastrous effects of disqualification have a strong incentive to refrain from ingesting prohibited substances. Indeed, one possible yardstick of a drug testing program accompanied by advance consent and publicity is a percentage of positive drug test findings that starts low and continues either at the same level or downward. When so measured, the NCAA's program is successful. 16. See, e.g., Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at page 270 (applying Bagley test, including its "no less offensive alternatives" element, to government discrimination against medical care benefits for abortions); City of Carmel-by-the-Sea, supra, 2 Cal.3d at pages 268-269 ("less drastic means" analysis derived from federal freedom of speech and association cases applied to financial disclosure by political candidates; no reference to burden of proof; need for balancing acknowledged); Robbins v. Superior Court (1985) 38 Cal.3d 199, 213-214 [211 Cal.Rptr. 398, 695 P.2d 695] (in-kind welfare benefits to recipients of general assistance); see also City of Long Beach Employees Assn., supra, 41 Cal.3d at page 948, footnote 12 ("less intrusive means" element referred to; issue not reached).
Both Bagley v. Washington Towship, supra, 65 Cal.2d at pages 506-507, and City of Carmel-by-the-Sea v. Young, supra, 2 Cal.3d at pages 268-269, rely principally on Shelton v. Tucker (1960) 364 U.S. 479, 488 [5 L.Ed.2d 231, 237-238, 81 S.Ct. 247], and similar First Amendment freedom of association and expression cases. In Shelton, public school teachers were required by law to disclose every organization they had joined or contributed money to — social, political, religious, professional, or other — over a five-year period. Recognizing the state's interest in occupational competence and fitness of teachers, the high court nonetheless struck down the law, observing that its scope far exceeded any legitimate state concern. (Id. at pp. 488-490 [5 L.Ed.2d at pp. 237-238].) It stated in part: "The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose." (Id., at p. 488 [5 L.Ed.2d at p. 237].) It was careful, however, to observe that a "less drastic means" analysis might not be applicable in other constitutional contexts: "In other areas, involving different constitutional issues, more administrative leeway has been thought allowable in the interest of increased efficiency in accomplishing a clearly constitutional central purpose. [Citations.]." (Id. at p. 488, fn. 8 [5 L.Ed.2d at p. 237].) Thus, at the roots of the "least restrictive alternative" burden lie cases of government infringement of fundamental freedoms of expression and association. Unlike this one, those cases do not involve: (1) broad-based assertions of autonomy privacy interests (i.e., freedom of action as opposed to freedom of expression and association), (2) in circumstances of diminished expectations of privacy on the part of participants in a voluntary extracurricular activity conducted by a private entity. Consistent with Shelton, and because the NCAA's stated purposes are legally valid and central to its function, the NCAA should be accorded the kind of "administrative leeway" necessary to accomplish those purposes with "increased efficiency." (Shelton v. Tucker, supra, 364 U.S. at p. 488, fn. 8 [5 L.Ed.2d at p. 237].) 17. Justice Mosk's dissent charges us with disregarding the substantial evidence rule with respect to the trial court's finding that direct monitoring of athlete urination is unnecessary to ensure a valid sample. We plead not guilty. As Justice Mosk acknowledges, plaintiffs themselves offered no expert or other evidence offering or analyzing any viable alternative to direct monitoring. Rather, the testimony of the NCAA's own expert, Ronald Heitzinger, is the sole evidence on which the court purported to base its finding. Heitzinger testified unequivocally as follows: "I have not only heard of but seen where the athletes have tried to screw up their drug tests so they will not be caught. So we really recommend that there should be observed testing." (Italics added.) While he acknowledged performing testing without direct observation at the request of some of his clients, Heitzinger was not questioned regarding the feasibility of any specific alternatives or their impact on the accuracy of the testing process. In our view, Heitzinger's testimony, when read in context, acknowledges obliquely the mere possibility of testing without direct monitoring, while upholding at all times the vital importance of monitoring to ensure accuracy in the testing process. It does not satisfy plaintiff's burden of showing a practical, effective, and viable alternative. It is patently insufficient to permit a court to strike the balance in favor of the privacy right. The Privacy Initiative does not require the NCAA to settle for something less than a fully effective testing program. 18. The trial court also found that the NCAA's drug testing program "interferes with the athletes' right to treat themselves with appropriate over-the-counter medications as other students do." In view of the trial court's failure to weigh or consider the diminished expectations of privacy of student athletes when compared with "other students," this finding lacks significance. Moreover, following trial in this case, the NCAA eliminated from its list of banned substances the sympathiometic amines — the drugs contained in over-the-counter medications. Much of the issue regarding over-the-counter medications thus appears to be moot at this stage. Finally, our review of the portions of the record cited by the parties discloses no evidence that the NCAA has applied either its drug testing policy or its ban on the use of specified substances so as to preclude any athlete from obtaining medically necessary treatment for disease or injury. Plaintiffs have failed to establish an invasion of privacy in the form of interference with medical treatment. 19. Compare National Treasury Employees Union v. Von Raab, supra, 489 U.S. at page 679 [103 L.Ed.2d at page 710-711] (customs workers whose performance "might endanger the integrity or our Nation's borders or the life of the citizenry"; drug testing upheld); Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. at page 628 [103 L.Ed.2d at pages 667] (railroad employees involved in accidents who "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences"; drug testing upheld); and Railway Labor Executives' Assn. v. Skinner (9th Cir.1991) 934 F.2d 1096, 1099-1100 ("safety-sensitive" railroad workers; urinalysis drug testing upheld); with Taylor v. O'Grady (7th Cir.1989) 888 F.2d 1189 (urinalysis drug testing permissible for prison guards but impermissible for other prison employees with no access to firearms and no opportunity to smuggle drugs); National Federation of Federal Employees v. Cheney (D.C. Cir.1989) 884 F.2d 603, 610-614 [280 App.D.C. 248] (urinalysis drug testing permissible for aviation workers, police guards, and drug counselors but impermissible for lab workers); Harmon v. Thornburgh (D.C. Cir.1989) 878 F.2d 484, 490 [278 App.D.C. 382] (urinalysis drug testing permissible for Justice Department employees with top security clearance but impermissible for general employees). 20. Three employment-related cases involving drug testing have arisen in our Courts of Appeal. In Wilkinson, supra,215 Cal.App.3d 1034, the court held, consistent with the views we express here, that the state constitutional right to privacy applies to the conduct of nongovernmental entities. It applied a general "reasonableness" balancing test to uphold a urinalysis drug testing condition imposed on all applicants for employment at a publishing company. Applicants were given advance notice of the condition; testing was conducted as part of a pre-employment physical examination. (Id. at pp. 1044-1052.) In Semore v. Pool (1990) 217 Cal.App.3d 1087 [266 Cal.Rptr. 280], the court upheld against demurrer a complaint for wrongful discharge based on termination of an employee for refusal to submit to a pupillary reaction eye test designed to measure drug influence. Holding the employee's state constitutional right of privacy was a sufficient public policy to serve as the basis of a wrongful discharge suit, the court observed in part that: "The resolution of the dispute depends upon balancing an employee's expectations of privacy against the employer's needs to regulate the conduct of its employees at work." (Id. at p. 1097.) Noting the absence of any allegations in the complaint relating to the employee's duties, the testing procedure, or the employer's interest, the court declined to strike the required balance on the meager record before it. Finally, in Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1 [267 Cal.Rptr. 618], the court upheld a verdict for wrongful discharge in favor of a nonsafety employee of a railroad (a computer installer and technician) after she refused to submit to a urinalysis drug test. It determined in part that generalized, nonsafety interests in employee efficiency and competence and in a drug free work environment were not sufficiently "compelling" to justify drug testing. (Id. at pp. 23-24.) In light of our general discussion of the elements of invasion of privacy (which differs from the approaches taken in these cases) and the fact-specific character of this drug testing case (which involves extracurricular sports activity rather than employment), we offer no analysis of the continuing vitality of these cases. Like other claims for invasion of the state constitutional right to privacy, future claims arising in the employment context will be subject to the elements and standards we announce here, which require careful consideration of reasonable expectations of privacy and employer, employee, and public interests arising in particular circumstances. 1. In discussing the second and third elements set forth by the majority, I have added the qualifying comments that "on their face," and "if faithfully applied," the elements appear to impose inflexible requirements that improperly may bar some valid privacy claims. Such qualification appears appropriate because, in applying these elements in the present case, the majority does not in fact treat these considerations as independent requirements that must be established before there is any need to consider defendant's justifications for its conduct, but rather undertakes an analysis that closely parallels the traditional balancing approach. (See maj. opn., ante, pp. 40-43, 52-53.) In light of the analytical process actually utilized by the majority to resolve the constitutional privacy issue presented here, it is all the more difficult to understand the reason for the majority's adoption of a novel general legal framework to govern resolution of state constitutional privacy claims. 2. The relevant passage of the election brochure argument stated in this regard: "The right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. This right should be abridged only when there is compelling public need." (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972) p. 27, italics added.) 1. To the contrary is Professor J. Clark Kelso. He asserts that the "premise" that the "ballot argument is an important part of the legislative history of" Proposition 11 "is bad law...." (Kelso, California's Constitutional Right to Privacy (1992) 19 Pepperdine L.Rev. 327, 433.) He is incorrect. His point is without adequate support in reason. Moreover, as he himself is compelled to admit, it is against the overwhelming weight of authority as expressed in a "long line of supreme court decisions." (Ibid.) He also asserts that the "premise" that the "ballot argument is the only piece of significant legislative history for" the measure "is simply wrong as a matter of fact...." (Ibid.) He is again incorrect. What he seeks to create can only be called a "secret legislative history," which is "stored in the state archives" and "not easy to come by" (id. at p. 333). It embraces "fragments" of the "legislative history" of what was to become Proposition 11. (Ibid.) This "secret legislative history" has no conceivable bearing on the crucial issue of the intent of the people who voted for the measure. In Professor Kelso's view, however, it speaks to the question of coverage. I shall turn to that question in due course. (See fn. 8, post.) 2. Generally in accord on the status of the right of privacy are, for example, White v. Davis, supra, 13 Cal.3d at page 761 ("[t]hough the amendment does not purport to invalidate all ... information gathering, it does require that the government establish a compelling justification for such conduct"); id. at page 775 ("the amendment does not purport to prohibit all incursion into individual privacy but rather ... any such intervention must be justified by a compelling interest"); Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656-658 [125 Cal.Rptr. 553, 542 P.2d 977] (the need for balancing); Loder v. Municipal Court (1976) 17 Cal.3d 859, 864 [132 Cal.Rptr. 464, 553 P.2d 624] (expressly recognizing the requirement of a "`compelling interest'" to justify an "`intervention'" as to the right of privacy and impliedly recognizing the need for balancing); People v. Privitera (1979) 23 Cal.3d 697, 702 [153 Cal.Rptr. 431, 591 P.2d 919, 5 A.L.R.4th 178] (when a "right of privacy" claimed against a governmental actor is not established but only "asserted," i.e., when it "is not encompassed by the right of privacy embodied in... the state Constitution[]," it is not subject to the "compelling state interest test" (italics in original)); id. at pages 709-710 (to similar effect); City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 131 [164 Cal.Rptr. 539, 610 P.2d 436, 12 A.L.R.4th 219] ("`the amendment does not purport to prohibit all incursion into individual privacy but rather ... any such intervention must be justified by a compelling [public] interest'" (brackets and bracketed material in Adamson, ellipsis added)); id. at page 133 (implying that the means used are not actually required when "less restrictive" means are available); Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 275 [172 Cal.Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118] (plur. opn.) (the right of privacy is "clearly among the most intimate and fundamental of all constitutional rights"); Doyle v. State Bar (1982) 32 Cal.3d 12, 19-20 [184 Cal.Rptr. 720, 648 P.2d 942] (per curiam) (impliedly acknowledging that a "`compelling interest' [is] required to justify invasion of privacy" and expressly acknowledging that balancing is needed); People v. Stritzinger (1983) 34 Cal.3d 505, 511 [194 Cal.Rptr. 431, 668 P.2d 738] ("[i]t is ... well established ... that the right of privacy is not absolute, but may yield [to governmental intrusion] in the furtherance of compelling state interests"); Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 164 [219 Cal.Rptr. 387, 707 P.2d 760] (a governmental "restriction" on the right of privacy "must be justified by a compelling state interest"); Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 948 & fn. 12 [227 Cal.Rptr. 90, 719 P.2d 660] (governmental intrusion "upon the constitutionally protected zone of individual privacy" "must be justified by a compelling governmental interest") (dictum); Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 [239 Cal.Rptr. 292, 740 P.2d 404] (the need for balancing); Schmidt v. Superior Court (1989) 48 Cal.3d 370, 389-390 [256 Cal.Rptr. 750, 769 P.2d 932] (implying that conduct adversely affecting, but not abridging, an established right of privacy may be allowed if reasonable); Schnabel v. Superior Court (1993) 5 Cal.4th 704, 712 [21 Cal.Rptr.2d 200, 854 P.2d 1117] (the need for balancing); Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 832 [134 Cal.Rptr. 839] (an intruding nongovernmental party must show a "compelling public interest" to justify the intrusion); Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 843 [228 Cal.Rptr. 545] (recognizing both the "compelling interest" requirement and the need for balancing); Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1046 [264 Cal.Rptr. 194] (same); id. at page 1047 ("even if challenged conduct has some impact on the right of privacy, as long as that right is not substantially burdened or affected, justification by a compelling interest is not required"; "[i]nstead, the operative question is whether the challenged conduct is reasonable"); Semore v. Pool (1990) 217 Cal.App.3d 1087, 1096 [266 Cal.Rptr. 280] ("privacy, like the other inalienable rights listed first in our Constitution, is ... fundamental"); Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 20 [267 Cal.Rptr. 618] (holding that any "incursion into individual privacy ... must be justified by a compelling interest," and that the "compelling interest test" constitutes "existing precedent"); Miller v. Murphy (1983) 143 Cal.App.3d 337, 343-346 [191 Cal.Rptr. 740] (to the effect that conduct adversely affecting, but not abridging, an established privacy right may be allowed if reasonable).
In Committee to Defend Reproductive Rights v. Myers, supra,29 Cal.3d 252, the plurality opinion articulates a test, derived from the pre-Proposition 11 case of Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 505-507 [55 Cal.Rptr. 401, 421 P.2d 409], under which "the state must demonstrate (1) `that the imposed conditions relate to the purposes of the legislation which confers the benefit or privilege'; (2) that `the utility of imposing the conditions ... manifestly outweigh[s] any resulting impairment of constitutional rights'; and (3) that there are no `less offensive alternatives' available for achieving the state's objective." (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at p. 258 (plur. opn.).) The plurality opinion does not purport to substitute this test for the "compelling public need" standard. Rather, it simply uses it as a "framework for judicial analysis of restrictions ... which exclude from government benefit programs potential recipients solely on the basis of their exercise of constitutional rights." (Id. at p. 265 (plur. opn.); accord, Robbins v. Superior Court (1985) 38 Cal.3d 199, 213 [211 Cal.Rptr. 398, 695 P.2d 695].) The familiar observation of Professor Gerald Gunther, that the Warren Court's "aggressive `new' equal protection" involved "scrutiny that was `strict' in theory and fatal in fact" (Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection (1972) 86 Harv.L.Rev. 1, 8), is without import here. It does not bear on the right of privacy. Moreover, it was circulated in published form only after the November 7, 1972, General Election. 3. Generally in accord on the source of the right of privacy are, for example, People v. Porras (1979) 99 Cal.App.3d 874, 879 [160 Cal.Rptr. 627] (the "adoption of the amendment was intended to strengthen the right of privacy"); Cutter v. Brownbridge, supra, 183 Cal. App.3d at page 842 (implying that the right of privacy embraces the "interests protected by the common law" but also "reaches beyond" them). 4. Generally in accord on the definition of the right of privacy are, for example, White v. Davis, supra, 13 Cal.3d at page 774 ("`The right of privacy is the right to be left alone.'"); City of Santa Barbara v. Adamson, supra, 27 Cal.3d at page 130 (same); Robbins v. Superior Court, supra, 38 Cal.3d at page 212 (same); Long Beach City Employees Assn. v. City of Long Beach, supra, 41 Cal.3d at page 943 (same); People v. Porras, supra, 99 Cal. App.3d at page 879 (same); Wilkinson v. Times Mirror Corp., supra, 215 Cal. App.3d at page 1040 (same). 5. Generally in accord on the substance of the right of privacy are, for example, White v. Davis, supra, 13 Cal.3d at page 774 (the "general concept of privacy relates ... to an enormously broad and diverse field of personal action and belief"; the "moving force behind the new constitutional provision was" informational privacy); City of Santa Barbara v. Adamson, supra, 27 Cal.3d at page 129 (same as to former point); id. at page 130 (autonomy privacy: the "right of privacy" in "one's family" and also in "one's home"); Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at pages 275, 284 (plur. opn.) (autonomy privacy: a woman's "right to decide for herself whether to parent a child," and "whether to bear a child or to have an abortion"); Robbins v. Superior Court, supra, 38 Cal.3d at page 213 (the "right to privacy has been held to protect a diverse range of personal freedoms"); Conservatorship of Valerie N., supra, 40 Cal.3d at p. 163 (autonomy privacy: the "right of a woman to choose whether or not to bear a child and thus to control her social role and personal destiny" is a "fundamental right protected by" the right of privacy); Long Beach City Employees Assn. v. City of Long Beach, supra, 41 Cal.3d at page 948 (informational privacy and privacy properly so called: the "coercive collection of mental thoughts, conditions and emotions" "inherently intrude[s] upon the constitutionally protected zone of individual privacy") (dictum); Cutter v. Brownbridge, supra, 183 Cal. App.3d at page 842 (informational privacy: the "`zones of privacy' created by article I, section 1, extend to the details of one's medical history"); Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1489-1493 [232 Cal.Rptr. 668, 69 A.L.R.4th 1027] (stating that the "`right to privacy has been held to protect a diverse range of personal freedoms'"; suggesting that both informational privacy and privacy properly so called are implicated in the intrusion by a television news camera into a residence in order to film the efforts of paramedics to save the life of a heart attack victim); Wilkinson v. Times Mirror Corp., supra, 215 Cal. App.3d at page 1046 (the "general concept of privacy can be viewed as encompassing a broad range of personal action and belief"); Luck v. Southern Pacific Transportation Co., supra, 218 Cal. App.3d at pages 15-17 (rejecting a claim that the right of privacy protects only informational privacy, with the observation that "`the right to privacy has been held to protect a diverse range of personal freedoms[]'"; suggesting that both informational privacy and privacy properly so called are implicated in the collection and testing of urine); Chico Fem. Women's Hlth. Cr. v. Butte Glenn Med. S. (E.D.Cal. 1983) 557 F.Supp. 1190, 1202 ("there is simply no indication that certain privacy rights were intended to be afforded greater protection than others"). 6. Generally in accord on the scope of the right of privacy are, for example, Porten v. University of San Francisco, supra, 64 Cal. App.3d at page 829 (the "elevation of the right to be free from invasions of privacy to constitutional stature was apparently intended to be an expansion of the privacy right"); Luck v. Southern Pacific Transportation Co., supra, 218 Cal. App.3d at page 17 (same); Chico Fem. Women's Hlth. Cr. v. Butte Glenn Med. S., supra, 557 F. Supp. at page 1203 (same). See also Kelso, California's Constitutional Right to Privacy, supra, 19 Pepperdine L.Rev. at page 376 (observing that "[a]lthough privacy was clearly identified as an interest worthy of some legal protection [at common law], courts generally did not give privacy a privileged place or undue weight"); id. at page 423 (stating that the "secret legislative history" (see fn. 1, ante) "suggest[s] that the privacy clause was intended to do more than simply codify existing constitutional and common law doctrines").
Since the "right of privacy [under the United States Constitution] in general appears to be narrower than" the right of privacy under the California Constitution (City of Santa Barbara v. Adamson, supra, 27 Cal.3d at p. 130, fn. 3; accord, Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at pp. 263, 280-281 (plur. opn.)), the Fourth Amendment in general appears to be narrower still. That is because the "federal constitutional right of privacy" is broader than the Fourth Amendment. (See Luck v. Southern Pacific Transportation Co., supra, 218 Cal. App.3d at p. 20 ["The constitutional right to privacy does not prohibit all incursion into individual privacy, but provides that any such intervention must be justified by a compelling interest. [Citations.] This test places a heavier burden on [the intruding party] than would a Fourth Amendment privacy analysis, in which the permissibility of a particular practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."].) In People v. Crowson (1983) 33 Cal.3d 623, 629 [190 Cal.Rptr. 165, 660 P.2d 389], the lead opinion states: "In the search and seizure context, the article I, section 1 `privacy' clause has never been held to establish a broader protection than that provided by the Fourth Amendment of the United States Constitution or article I, section 13 of the California Constitution." (Italics added.) Because it is qualified by the italicized phrase, the unitalicized clause is unremarkable. (See Wilkinson v. Times Mirror Corp., supra, 215 Cal. App.3d at p. 1043, fn. 4.) 7. See People v. Prather (1990) 50 Cal.3d 428, 437 [267 Cal.Rptr. 605, 787 P.2d 1012] (per Lucas, C.J.) (speaking specifically of popular initiatives but with applicability to legislative proposals as well: "In construing constitutional ... enactments, we must give the language of the enactment `a liberal, practical common-sense construction which will meet changed conditions and the growing needs of the people.'"). 8. Generally in accord on the coverage of the right of privacy are, for example, Porten v. University of San Francisco, supra, 64 Cal. App.3d at pages 829-830 (the right of privacy reaches governmental and nongovernmental actors); Kinsey v. Macur (1980) 107 Cal.App.3d 265, 272 [165 Cal.Rptr. 608] (following the foregoing authority in what may, or may not, be dictum); Cutter v. Brownbridge, supra, 183 Cal. App.3d at page 842 (the right of privacy reaches governmental and nongovernmental actors); Wilkinson v. Times Mirror Corp., supra, 215 Cal. App.3d at pages 1040-1044 (same); Luck v. Southern Pacific Transportation Co., supra, 218 Cal. App.3d at pages 17-19 (same); id. at page 20 ("we see no reason to depart from existing precedent applying the compelling interest test" even when the intruding party is a nongovernmental actor); Chico Fem. Women's Hlth. Cr. v. Butte Glenn Med. S., supra, 557 F. Supp. at pages 1202-1203 (the right of privacy reaches governmental and nongovernmental actors). To similar, if qualified, effect is Semore v. Pool, supra, 217 Cal. App.3d at pages 1093-1094 ("the courts and commentators agree that the constitutional provision provides at least some protection against nongovernmental action"; "we have no doubt that at least some types of nongovernmental conduct can interfere with the right granted by the constitutional provision").
In Schmidt v. Superior Court, supra,48 Cal.3d 370, we assumed, but did not decide, that the right of privacy reaches nongovernmental as well as governmental actors (id. at p. 389), noting that "we ha[d] no occasion in th[at] case to consider under what circumstances, if any, purely private action ... would constitute a violation of the state constitutional privacy provision" (id. at p. 389, fn. 14). Professor Kelso reads the "secret legislative history" of what was to become Proposition 11 (see fn. 1, ante) to demonstrate that the right of privacy reaches governmental actors and nongovernmental actors cooperating with governmental actors, but not nongovernmental actors in and of themselves. (Kelso, California's Constitutional Right to Privacy, supra, 19 Pepperdine L.Rev. at pp. 416-433.) As stated, this "secret legislative history" has no conceivable bearing on the crucial issue of the intent of the people who voted for the measure. In any event, it cannot reasonably be read as it is by Professor Kelso. At best, it shows that governmental actors are included within the provision. It does not even suggest that nongovernmental actors are excluded. 9. Generally in accord on the character of the right of privacy are, for example, White v. Davis, supra, 13 Cal.3d at page 776 (in the face of allegations in a complaint "stat[ing] a prima facie violation of the state constitutional right of privacy," the governmental defendants are "free to contest any of the allegations of the complaint as well as to designate the compelling governmental interests upon which they rely for their intrusive conduct"); Long Beach City Employees Assn. v. City of Long Beach, supra, 41 Cal.3d at page 948, footnote 12 (to "decide ... whether [a] right of privacy was improperly violated ..., we would inquire whether the [intruding governmental party] had demonstrated a compelling governmental interest") (dictum); Porten v. University of San Francisco, supra, 64 Cal. App.3d at page 832 (in the face of allegations in a complaint "stat[ing] a prima facie violation of the state constitutional right of privacy," the nongovernmental defendant "may contest any of the allegations of the complaint as well as show some compelling public interest justifying" its intrusion). 10. All the evidence admitted below related to the NCAA drug testing program in 1987-1988 and 1986-1987. None concerned subsequent changes. It is true that the NCAA moved the Court of Appeal to receive such evidence. The Court of Appeal, however, denied the request. 11. It may be noted in passing that "[f]or the inaugural issue of College Sports Magazine, 110 sports information directors (SID's) were asked what three college athletic programs they admired most. The magazine asked the SID's to take into account athletes' competitive and academic success, facilities, men's teams and women's teams, major and non-revenue sports, and all other aspects of a well-rounded program." (Stanford Athletics #1 (Nov. 1993) College Sports Magazine, at p. 6.) Stanford finished first with 26 first-place votes and 164 total points. The institution that came in second was far behind, with only seven first-place votes and only seventy total points. (Ibid.) 12. It should be noted that in conducting its analysis, the Court of Appeal applied the "compelling public need" standard through the test of Bagley v. Washington Township Hospital Dist., supra,65 Cal.2d 499, 505-507. (See fn. 2, ante.) The latter is not apposite. But its use is not fatal. 13. Compare O'Connor v. Police Com'r of Boston (1990) 408 Mass. 324, 328 [557 N.E.2d. 1146] (drug testing of police cadets: "[W]e do not take lightly the intrusiveness of collecting a urine sample.... We accept as true, too, that the intrusiveness is increased by cadets' being monitored in the act of urinating (a practice that helps to ensure the integrity of the urine sample).") 14. The Derdeyn court found "of only marginal relevance" (University of Colorado v. Derdeyn, supra, 863 P.2d at p. 939) the decision in Schaill by Kross v. Tippecanoe County School Corp. (7th Cir.1988) 864 F.2d 1309, which upheld against a Fourth Amendment claim of unreasonableness a drug testing program covering student athletes and cheerleaders. Its reason was that the drug testing program in Schaill was directed against minors, who are assertedly entitled to a lower level of protection under the Fourth Amendment. Another reason is apparent. Simply put, the analysis in Schaill seems dubious. How else to explain the sustaining of a drug testing program reaching beyond student athletes to cheerleaders? 15. The party intruded upon, of course, may consent to the conduct of the intruding party. In such a case, the former may be said to have "waived" his right of privacy or the latter may be said to have effected no intrusion. Under the Fourth Amendment, consent is valid only if it "was, in fact, freely and voluntarily given." (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222 [36 L.Ed.2d 854, 859-860, 93 S.Ct. 2041], internal quotation marks omitted.) It was so given only if it was not the "product of duress or coercion, express or implied...." (Id. at p. 227 [36 L.Ed.2d at pp. 862-863].) The issue of consent "is a question of fact to be determined from the totality of the circumstances." (Ibid.) The burden rests on the intruding party to prove consent (id. at p. 222 [36 L.Ed.2d at pp. 859-860]) by a preponderance of the evidence (United States v. Matlock (1974) 415 U.S. 164, 177-178, fn. 14 [39 L.Ed.2d 242, 253-254, 94 S.Ct. 988]; People v. James (1977) 19 Cal.3d 99, 106 & fn. 4 [137 Cal.Rptr. 447, 561 P.2d 1135]). Principles no less favorable to the party intruded upon should govern here. That is because the right of privacy provides no less protection than the Fourth Amendment. (See fn. 6, ante.)
In this case, neither Hill nor McKeever even purported to consent to the NCAA drug testing program in 1987-1988. Indeed, each refused to do so. All the same, the superior court proceeded: "`Consent' to drug testing in these circumstances is a fiction." Responding to a "contract law" argument urged by the NCAA, the superior court reasoned: "[The] NCAA is a monopoly albeit a lawful one. It ... regulate[s] intercollegiate athletic competition. A student who has any desire to participate in intercollegiate athletics is not free to compete under another regulatory body. The facts here show that the testing policy was unilaterally formulated by the NCAA and that student athletes have little or no means of negotiating changes or the elimination of the testing program.... There is no equal bargaining between the athletes and the NCAA. Without free and equal bargaining the theoretical underpinnings of contract law are vitiated." Implicit in the superior court's reasoning seems a view similar to that expressed by the Derdeyn court: "It is, to be sure, only a very small percentage of college athletes whose college `careers' are essential as stepping stones to lucrative contracts — or to any contract — as professional athletes. On the other hand, however, we must also recognize that many intercollegiate athletes who otherwise could not afford a college education receive athletic scholarships that enable them to obtain a college degree and thereby increase their earning potential. Continuation of such scholarships ... is dependent upon continued participation in the intercollegiate athletic program, which in turn requires consent to the drug-testing program. Furthermore, many intercollegiate athletes pursue professional careers as high school or college coaches, or as administrators in athletic or recreational programs.... While having participated in intercollegiate athletics may not be a formal requirement for such jobs, it is commonplace that applicants with experience at the intercollegiate athletic level will not be disadvantaged in seeking such jobs in comparison with those who lack such experience." (University of Colorado v. Derdeyn, supra, 863 P.2d at p. 942.) Under the Fourth Amendment, a finding on consent is reviewed for substantial evidence (e.g., People v. James, supra, 19 Cal.3d at p. 107), apparently as the resolution of a question of fact. Under the same constitutional provision, a determination on the possibility of valid consent may arguably be subject to independent review as the resolution of a predominantly legal mixed question of law and fact. It appears that these standards are applicable to the right of privacy as well. Whether the superior court's statement — "`Consent' to drug testing in these circumstances is a fiction" — is construed to embody a finding on consent or a determination on the possibility of valid consent would not matter. Such a finding would be supported by substantial evidence; such a determination would survive independent review. (Compare Luck v. Southern Pacific Transportation Co., supra, 218 Cal. App.3d at pp. 24-25 [on the facts therein, no valid consent] with Wilkinson v. Times Mirror Corp., supra, 215 Cal. App.3d at pp. 1046-1052 [on the facts therein, valid consent].) 16. It may be noted in passing that among the "sources of privacy rights" at the time of Proposition 11 (maj. opn., ante, at p. 16) the majority do not include the right of privacy that we had found implied in the California Constitution in decisions such as People v. Belous (1969) 71 Cal.2d 954, 963-964 [80 Cal.Rptr. 354, 458 P.2d 194]. That right embraces the "fundamental right of [a] woman to choose whether to bear children." (Id. at p. 963.) I fear that the majority's omission may intimate a willingness on their part to turn back the clock in this regard.
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