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Student Drug Test Law Valid

Courts: Justices say such screens are a 'safety and health' issue and not an invasion of privacy.


WASHINGTON — School officials can require students who participate in extracurricular activities to undergo regular or random drug tests, even if there is no evidence of a drug problem at the school, the Supreme Court ruled Thursday.

The 5-4 decision calls school drug tests a "safety and health" measure that protects students, not an invasion of their privacy.

Thursday's ruling clears the way for school boards across the nation to adopt drug testing policies in their secondary schools.

But few did so after the high court upheld drug testing of student athletes in 1995.

Only a handful of school districts in California have considered regular urine screening of students. And some who have debated the idea backed away after parents and students voiced opposition.

But the Supreme Court justices have shown support and enthusiasm for drug testing and have upheld nearly every testing plan that has come before them. One major exception was a novel Georgia law that required candidates for governor and lieutenant governor to submit to drug tests.

The ruling Thursday upheld a policy adopted by the school board in Tecumseh, Okla. In 1998, the school board president said she had been concerned about drug use since seeing students smoking marijuana in the 1970s. The board's new policy said students in the band, the choir, cheerleaders and members of groups such as the Future Farmers of America and the Academic Team must consent to regular drug tests.

The tests are designed to check only for illegal drugs, such as marijuana or cocaine, but not alcohol. Those who test positive are required to meet with school officials. The results are not turned over to the police.

In the first two years, 505 students were tested. Three of them, all athletes, tested positive.

The policy was challenged by high school student Lindsay Earls, a self-described "goodie two-shoes" who was a member of the choir and the National Honor Society. She took a urine test that was negative, but she and her parents said the policy was humiliating, useless and an invasion of privacy. She is now a student at Dartmouth College.

Her lawsuit contended the mandatory testing violated the 4th Amendment's ban on "unreasonable searches" by the government. The U.S. Court of Appeals in Denver agreed and ruled that school officials need evidence of an "identifiable drug abuse problem" in the school before imposing mandatory testing.

The Supreme Court reversed that ruling Thursday in the case of Board of Education vs. Earls, 01-322.

Like Thursday's ruling upholding the use of vouchers for religious schools, the drug-testing decision removes a constitutional barrier for school officials. They may choose to adopt a drug testing plan, but they need not do so.

And while the 5-4 vote ratio was the same in both decisions, there was one difference. This time, Justice Stephen G. Breyer, a Clinton appointee, joined the conservative majority, while Justice Sandra Day O'Connor, a Reagan appointee, voted with the liberals to strike down the drug testing policy.

Before the 1980s, the more liberal court had said the government needed evidence that someone had done something wrong before it could subject a person to a search. But since drug testing first won approval in 1989, the court has said public officials only need to have sufficient reason to impose a testing requirement on a large number of presumably innocent people.

Justice Clarence Thomas said students are "entrusted" to the care of school officials, who have a duty to keep them safe and healthy. Moreover, students have a minimal "expectation of privacy" at school, he said, since they are subjected to physical exams and given vaccinations. And since the results are not turned over to the police, the drug tests need not meet the 4th Amendment's standards governing criminal searches, he said.

"We find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the school district's legitimate concerns in preventing, deterring and detecting drug use," he wrote.

Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Breyer agreed.

Breyer has been a surprisingly strong supporter of the police and school officials in drug cases. He cast one of two dissents when the court said police cannot routinely pick up the personal baggage of travelers and feel for drugs. He also joined the majority in upholding the drug testing of school athletes.

Drugs are "a serious national problem," and school officials can adopt reasonable testing requirements to cope with the problem, Breyer said in a concurring opinion.

However, he added that he might not go along if the school officials decided to "subject the entire school to testing."

Graham Boyd, the lawyer who represented Earls, called the ruling disappointing and probably counterproductive.

"Every available study demonstrates that the single best way to prevent drug use among students is to engage them in extracurricular activities," said Boyd, who also heads the American Civil Liberties Union drug policy litigation project, which is seeking to overhaul the nation's drug laws.

He said the decision also sounds an ominous note.

"If drug testing now becomes a rite of passage for an entire generation of students, the door will be cracked open wider to the government's inevitable demand for DNA, medical records, financial information and personal data," Boyd said.

In a statement, Earls said, "I'm really sad that every other schoolkid in America might have to go through a humiliating urine test like I did just to join the choir or the debate team."

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