High court case questions constitutionality of drug testing

Posted 3:16 p.m. March 20

by Patrick W. Higgins
U-WIRE (DC BUREAU)

(U-WIRE) WASHINGTON – Random drug testing of all high school students may be constitutional, according to several Supreme Court justices and the Bush administration.

The issue was raised in a Supreme Court case this week as lawyers for both sides presented oral arguments in the case of Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls.

The case involves an Oklahoma school district that enacted a policy in 1998 submitting any student who participated in an extracurricular activity to random drug tests.The testing was halted after only two years when Lindsay Earls, then a student in Tecumseh High School, filed suit in federal court alleging the school’s policy violated the Fourth Amendment clause against unlawful searches.

Earls, who is currently a freshman at Dartmouth College in New Hampshire, tested negative for drugs in every instance but agreed to the tests in order to remain involved with the choir.

The lower court denied Earls allegations, reaffirming the Pottawatomie County School Board’s policy. Earls, represented by lawyers from the American Civil Liberties Union, appealed to the U.S. 10th Circuit Court of Appeals in 2000, winning in a hotly contested decision.

Oral arguments were heard in the case this week, drawing mixed reactions. Justices Antonin Scalia and Stephen Breyer openly supported the school district, citing a 1995 Supreme Court case that allowed random testing of athletes.

In that case, Vernonia School District 47J. v. Acton, the High Court ruled because athletes repeatedly stripped together in a common locker room, they expected a lesser degree of privacy than typical adults, hence the testing was not unreasonable.

Breyer, who voted in favor of the 1995 ruling, expressed his intentions to uphold the district’s policy when he said, “It’s hard for me to see if I came out one way then that I’d come out different here.”

Justices Sandra Day O’Connor and David H. Souter were more hesitant, however, questioning whether students involved in activities such as choir and academic teams were inclined to use drugs at all.

“It’s just so odd,” O’Connor said. “It’s so counterintuitive, isn’t it?”

The Bush administration announced its support for the school district early this week, with U.S. Solicitor General Theodore Olson saying in a brief to the Supreme Court: “School children not only are more vulnerable to drug use than adults, but such abuse is much more likely to devastate their lives.”

Amidst all the controversy, the questions remains: Can school boards justify the random testing of nonathlete, extracurricular participants who have no record of or have never been suspected of any drug use without violating the Fourth Amendment?

Edwin Darden, senior staff attorney for the National School Board Association, thinks so. Darden expressed his reactions to this week’s proceedings by citing the general attitude of the justices to rule in the school board’s favor.

“I think oral arguments went very well,” he said. “The justices’ questions indicated that they are concerned about drug use in high schools and they seemed to realize that having random drug tests is one effective way of keeping school campuses safe.”

“Random urine testing makes for a hostile environment to learn in,” said Darrell Rogers, national outreach coordinator for Students for a Sensible Drug Policy. “Testing of students’ personal property (urine, blood etc.) without regard to previous problems with that student is a serious constitutional question that needs to be addressed.”

As for the final decision, Darden seemed confident, saying, “I think that we have a pretty good core of five justices in our favor.”

“For now, we will hope for the best,” Rogers said. “We hope that the Supreme Court will take students rights’ as a first priority.”

The court’s decision is expected this summer.

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