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THE NATION

Educators Say Drug Testing Will Stay Rare

Reaction: Few school districts conduct such programs. The go-ahead from the Supreme Court may not change that.

June 28, 2002|NERISSA PACIO and JOE MATHEWS | TIMES STAFF WRITERS

Thursday's Supreme Court decision permitting the drug testing of all students who sign up for extracurricular activities will protect the prerogatives of school boards while having little practical effect in U.S. school districts, say education officials across the country.

A 1995 Supreme Court decision upheld drug testing of student-athletes. This one clearly allowed such testing of all extracurricular participants, from band members to academic decathletes.

But only a tiny percentage of school districts nationwide--surveys put the number at 5% or less--perform testing of either group. Most have eschewed the tests, saying random testing of students is costly, ineffective or invasive of privacy.

With a national consensus against random drug testing of students, supporters and opponents of Thursday's high court ruling--affirming a testing policy in a rural Oklahoma school district--agreed that it would hardly disrupt the lives of American students. Some principals and education officials point to surveys suggesting that students active in extracurricular activities are less likely to use drugs.

"As a practical matter, the decision makes no good sense," said Hal Kwalwasser, general counsel for Los Angeles Unified School District, which does not conduct random testing. "I think very few schools will find great utility in merely testing those in extracurricular activities.... I can't imagine the utility of testing members of the chess club."

The true power of the 5-4 decision, written by Justice Clarence Thomas, lies in reaffirming that American students are, legally speaking, second-class citizens--a popular view in superintendents' suites.

The decision carved out an exception to the 4th Amendment, which prohibits unreasonable searches and seizures, for students regardless of whether they do anything to create suspicion of drug use. In the same way, corporal punishment of students remains constitutional, though state legislatures and school boards typically ban it.

"It's a very important decision because it means school boards and communities get to make the policy in these areas," says Edwin Darden, a senior staff attorney for the National School Boards Assn., which filed an amicus brief in support of the Oklahoma district's testing policy. "Tests are costly to operate and they take time to administer, but this preserves that option for local communities."

Darden was not alone in praising the ruling but declining to endorse student drug testing. "It has proven to be useful in some schools," said Bush administration drug czar John Walters, "but that's not going to be the case in many districts."

Even Graham Boyd, director of the drug policy litigation project at the American Civil Liberties Union, which represented the students who unsuccessfully challenged the Oklahoma district, said losing the case would not lead to significantly more testing in schools.

While criticizing the decision for "reducing student privacy rights to that no better than prisoners," Boyd said he expected testing to remain "quite rare, not really for legal reasons but common sense reasons."

Some American schools began limited drug testing of some students in the 1980s. Banning High in Wilmington famously started a random program for athletes after cocaine overdoses by two football players in 1986 but quickly dropped it. After the Supreme Court declared testing of athletes constitutional in 1995, hundreds of schools nationwide started programs of their own.

The concept never caught on in big cities. A spokeswoman for the Los Angeles County Office of Education said she was unaware of any county school district that tested students randomly. Three years ago, Miami-Dade County Public Schools, the nation's fourth-largest district, started a pilot testing program but soon dropped it, citing a lack of money.

Experts say most existing testing programs are targeted to suspected users or are voluntary. Drug testing is more common in Catholic and other private schools, at high school sports powerhouses where boosters pay for the testing of athletes, and in rural communities worried about the influx of big-city drug culture. In court, the most important cases on school drug testing have come from challenges to testing regimes in small towns in Oregon, Indiana, Colorado and, now, Oklahoma.

"We want to encourage rather than discourage" extracurricular participants, said Chicago Board of Education general counsel Marilyn Johnson, expressing the prevailing big-city sentiment. "They do better in school and stay in school that way."

Some superintendents and principals were bracing Thursday for renewed sales pitches from companies that market low-cost drug testing kits. One such firm, Lifepoint Inc. of Ontario, had incorporated the Supreme Court decision into its marketing by Thursday afternoon.

But the nine justices of the high court, whether they support testing or not, were careful not to endorse such testing.

Concurring with the majority in upholding drug testing, Justice Stephen G. Breyer was hardly enthusiastic. "I cannot know whether the school's drug testing program will work," he wrote. "But in my view, the Constitution does not prohibit the effort."

In a sarcastic dissent, Justice Ruth Bader Ginsburg--noting that the school band, the Future Farmers of America and Future Homemakers of America could be tested under the upheld policy--mocked fears of "out-of-control flatware, livestock run amok, and colliding tubas."

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