Portland State’s drug policy is woefully out of date.
The rules concerning drug use on campus are founded more on political convenience than science, and their reasoning is inconsistent at best. Though they may not change any time soon—especially considering federal inaction on marijuana legalization—students should be made aware of their rights under the law, and we should fight to amend these policies.
PSU states in their “Guide for Alcohol and other Drug Problems” that they are “committed to maintaining a drug-free institution”—but they maintain a policy allowing the distribution and consumption of alcohol at university events. Whoops! It looks like they accidentally wrote a policy that promotes drug use on campus.
But this may not be an issue, some might say. One possible argument in favor of allowing the use of alcohol on campus is that, unlike many other drugs, it’s legal to consume.
However, PSU prohibits smoking and the use of tobacco—a legal drug—at all times, in every part of the campus. The stated rationale for this policy is to promote “the well-being of all PSU community members and the maintenance of a sustainable and healthy campus environment.” This doesn’t rest solely on an anti-smoking policy—all forms of tobacco are banned, including smokeless.
Why the inconsistency? The negative health effects of both tobacco and alcohol are well known, and alcohol in particular has a bevy of potentially catastrophic health risks. So why ban one substance entirely, and allow the public use of another? Is the university not “committed to maintaining a drug-free institution”?
That is, unless PSU doesn’t actually care about eliminating drug use on campus, but only about eliminating the use of drugs that the university perceives unfavorably. This kind of arbitrary policy-making doesn’t make sense.
There’s another drug that’s legal in the state of Oregon that PSU notably bans: marijuana.
According to the University Housing and Residence Life (UHRL) Housing Handbook, “[t]he possession, use, sale, or distribution of any drug, drug paraphernalia, or controlled substance prohibited by state or federal law” is banned in residence halls, which “includes the possession, use, sale, or distribution of marijuana in any form.”
The prohibition also includes “[b]eing under the influence” of such substances, or even “[b]eing in the presence of unlawful drug use or possession of drug paraphernalia…”
That’s right: even being in the presence of “unlawful drug use” or “possession” of paraphernalia constitutes a violation of PSU drug policy, which may result in “expulsion and/or termination of employment, and potentially, referral for prosecution.” It is worth restating that this policy applies to the use of marijuana, a drug that is objectively less dangerous to one’s health than alcohol, and is legal in Oregon.
It’s worth noting that PSU isn’t entirely at fault for this policy—as a public institution, they are forced to abide by federal law, which classifies marijuana as a Schedule I controlled substance. This policy is the direct result of the War on Drugs, a draconian, unscientific and discriminatory campaign designed to police marginalized communities.
Still, PSU does enforce the policy, and it’s imperative for students to know their rights when it comes to suspected drug use.
The issue of students’ rights regarding university drug policy mainly revolves around university housing—dormitories are where most drug-related searches take place on campus, and they’re where the university has the most interest in students’ personal lives. Of course, drug searches may take place in other places on campus—but if you decide to vape in a lecture hall… well, that’s on you.
Though dormitories might not feel like a “real” home, students who live in them have the same privacy rights as anyone else. A 2012 article in the Brigham Young University Education and Law Journal titled “Public Education and Student Privacy: Application of the Fourth Amendment to Dormitories at Public Colleges and Universities” by Bryan R. Lemons notes that “students living in dormitories at public institutions can expect that their privacy rights are still protected under the Fourth Amendment.”
The Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” provides broad protections to anyone in the United States against governmental intrusion of privacy—including actions by public institutions, such as state universities like PSU.
Lemon writes that “[s]tudents have a reasonable expectation of privacy in a dormitory room…Because of the institution’s responsibility to provide a safe educational environment, reasonable health and safety inspections of dormitory rooms are generally permitted under the terms and agreements of a student housing agreement. Such agreements will not, however, support general searches by campus officials to locate evidence of criminal activity, even where the institution’s interest are significant.”
The question of whether resident assistants act as agents of the state during a search of a student’s room isn’t entirely clear, and can depend on specific circumstances. But, Lemon argues, it’s generally accurate to consider RAs public actors: “Resident assistants are, for all practical purposes, public employees of the institution…Further, resident assistants are empowered by the delegation of authority from the public institution. Without that institutional authorization, resident assistants have none of the rights they exercise in terms of conducting dormitory searches. In light of these considerations, it seems more reasonable to conclude that resident assistants are public actors for Fourth Amendment purposes, rather than to conclude they are not.”
That is to say, in many circumstances, when an RA conducts a room search, they still must abide by the Fourth Amendment.
Per the 2022–2023 UHRL Room and Dining Contract, PSU dormitory residents agree that “UHRL may enter a Unit or Space, with or without notice, for reasons including but not limited to[…] maintenance, repair, or custodial services,” “health and safety reasons,” and “elimination of nuisances,” as well as when there is “reasonable cause” to indicate a “violation of established conduct or health and safety standards” or that “a University policy is being violated.”
During these kinds of searches, RAs or other university employees can’t just search through all of your belongings at will—they still require cause—but there are some exceptions it helps to be aware of.
According to Lemon, the Supreme Court recognizes an expectation of privacy regarding closed containers, like backpacks, wallets, bags, etc. “However, ‘for there to be a reasonable expectation of privacy, the contents of [the] container should not be apparent without opening,’” Lemon wrote. “Thus, when a container is ‘not closed,’ or ‘transparent,’ or when its ‘distinctive configuration … proclaims its contents,’ the container supports no reasonable expectation of privacy and the contents can be said to be in plain view.”
For example, in a hypothetical scenario where a student tenant stored marijuana in a closed container, an RA would not typically be allowed to search that container unless there was some reasonable cause to search, such as a potential health and safety violation; the container was open, or transparent; or if it were immediately obvious that said container housed marijuana, such as if it had a sticker on the front that said “I have marijuana in this container,” e.g.
In other words, the Fourth Amendment does not account for stupidity. If unlawful behavior—or policy-breaking behavior, in the case of university dorms—is “immediately apparent,” that can constitute an exception to normal privacy laws. “An item’s incriminating character is ‘immediately apparent’ if a law enforcement officer has probable cause to believe the item is subject to seizure,” Lemon wrote.
It should go without saying that I am not a lawyer, and this should not be taken as legal advice—these are merely general principles that one can use as a yardstick for knowledge of their legal rights. If you find yourself in a situation where you feel that your rights have been violated, or simply would like clarification on your rights, it would be prudent to reach out to Student Legal Services for a consultation.
The ridiculousness of PSU drug policy will hopefully serve as a reminder of the injustices still present in our drug laws, even in so-called “blue states” like Oregon. One can only hope that the federal government will wake up to the science and move to legalize marijuana, avoiding situations like this on campuses across the country.
