Frohnmayer says drug testing rules for Ducks "probably unconstitutional"

Updated 4/23/2013 with link to full Frohnmayer opinion, here.

4/20/2013. New Oregon Administrative Rule 571-004 took effect March 4, 2013. It allows the Duck athletics department to randomly test “student-athletes” for use of illicit drugs, and take away their scholarships if they fail one test:

The program shall also describe potential sanctions for repeated use or abuse of substances for which tests are conducted. However, a student-athlete may be dismissed from the team and lose all athletic financial aid, beginning with the next academic term after a single positive test result.

This policy was pushed through by President Gottfredson this fall, at the instigation of Athletic Director Rob Mullens and with the help of UO General Counsel Randy Geller. But, in a stunning development, former UO President Frohnmayer has stated that random testing violates the 4th amendment prohibition on unreasonable search and seizure. The RG breaks the story:

Wait, the RG story is from 1987, and is about the last time UO tried this. A runner and a wrestler fought back, and got the ACLU and then the Oregon DOJ on their side, and they won.

But that was then. UO’s new random drug testing OAR, with the clause giving the AD the right to cancel a scholarship is now in place, with no objections from Dave Frohnmayer, currently serving as a UO law professor.

How did UO’s General Counsel respond to the people who raised questions this time? He accused President Kyr and the IAC of defamation:

… Your allegations about the University’s rulemaking processes are offensive and false , as are the comments made publicly by members of the Intercollegiate Athletics Committee. I ask that you apologize in writing to President Berdahl, Rob Mullens, and me. I also ask that you censure the members of the IAC who have published offensive and defamatory comments.

Randolph Geller  General CounselUniversity of Oregon 

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8 Responses to Frohnmayer says drug testing rules for Ducks "probably unconstitutional"

  1. Anonymous says:

    Excellent post.
    And where are the budding journalists of the current generation? Sucking thumbs while the oldsters dig up precedent?

    This is what foundation gifts buys.

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  2. Anonymous says:

    What about Brain McWorter and the IAC? Weren’t they looking into this? For nothing apparently?

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    • Anonymous says:

      They have nothing to show for their efforts, that’s for sure. Brian is a pawn and the athletic department is under nobody’s authority.

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    • Brian McWhorter says:

      Calling me a “pawn” is interesting. I think “scapegoat” might be more apropos in this case. Here’s a link to my report to the senate which I assume you’ve read. And, in the spirit of transparency, it should be noted that the OAR was recently changed (as a result of my report) and now includes a more robust safe-harbor clause. I’ve maintained serious concerns about this rule from the beginning and was the only person to voice any concern at the public hearing.

      http://senate.uoregon.edu/content/iac-report-random-drug-testing-oars

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    • UO Matters says:

      In fairness to Brian, the amount of pushback from the administration on everything the IAC tries to do is relentless. I had to go to the Senate with a formal motion, just to get transcript data. Last year Berdahl tried to shut down the IAC.

      And on drug testing, the general counsel even sent out this email to McWhorter and Kyr:

      .. Your allegations about the University’s rulemaking processes are offensive and false , as are the comments made publicly by members of the Intercollegiate Athletics Committee. I ask that you apologize in writing to President Berdahl, Rob Mullens, and me. I also ask that you censure the members of the IAC who have published offensive and defamatory comments.

      Randolph Geller
      General Counsel
      University of Oregon

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    • Anonymous says:

      Yeah, that would sort of have a chilling effect …

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  3. Anonymous says:

    The young Dave Frohnmayer was impressive, wasn’t he! A Greek tragedy.

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