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Court's Message to Students: Just Say No to the Chess Club

Extracurricular activities become a drug-test trap.

June 28, 2002|JONATHAN TURLEY | Jonathan Turley teaches constitutional law at George Washington University.

In a decision Thursday, the U.S. Supreme Court spoke directly to children who are interested in experimenting with drugs. The message is clear and simple: Focus all of your attention on drugs or face expulsion.

This curious message is the product of a 5-4 ruling in Board of Education vs. Earls, in which the court upheld the right of high schools to compel drug testing of any student interested in extracurricular activities without any showing of individual suspicion of drug use. The decision by Associate Justice Clarence Thomas upholding such "suspicionless" testing ensures that every child experimenting with drugs will now choose between making drugs their exclusive interest and going drug-free with the chess club.

Although the court once insisted that children "do not shed their constitutional rights ... at the schoolhouse gate," the relative rights of children are vastly different within the school. Past cases focused on lockers and speech. However, in a 1995 case out of Vernonia, Ore., the court extended its school rulings to physical searches and allowed suspicionless drug testing of student athletes. This ruling was based in part on the obvious physical danger of students playing sports while on drugs.

The image of some coked-up student diving the wrong way off a high board was enough for the court. Moreover, the court stressed that the school was facing an "epidemic" of drugs and that athletes were the natural leaders of the "drug culture."

In the current case, the officials at the Pottawatomie school district in Tecumseh, Okla., did not find this nearly broad enough. The school decided to test all students engaged in extracurricular activities, including strictly nonsports activities ranging from yearbook staff to the academic team.

Of course, it is hard to imagine the danger of a high school student in such nonathletic activities. While the chess coach may be suspicious as to why Junior used the Queen's Gambit as an opening move, the opposing player is probably safe from immediate harm.

Moreover, where the Vernonia school documented a student population in "a state of rebellion ... fueled by alcohol and drug abuse," Tecumseh school officials testified that only three high school students out of a class of 243 tested positive for drugs in a two-year period. Notably, all three played sports.

Justice Thomas, however, removed these factors as prerequisites for suspicionless testing for high schools across the country. While the court repeated its privacy concern over "an excretory function," it found drug testing to not be intrusive at the school. The court noted that a teacher can require all students to reveal what prescriptions they are taking and then stand outside a stall to "listen for the normal sounds of urination"--each student is expected to make such normal sounds to the satisfaction of the teacher. Abnormal-sounding students apparently face repeated testing.

In her concurrence, Justice Sandra Day O'Connor noted that this new ruling was not so bad because students can simply decline to participate in any extracurricular activities. It is the dream of every high school deadhead: Just say no to extracurricular activities. The decision will now free up time for an exclusive commitment to the drug culture and build peer identification with those pledging to live "activity-free."

It is often said that we learn to be citizens in high school. With decisions like Earls, it is not hard to imagine the lessons of citizenship being taught to our children. If our schools become a learning ground for personal submission and collective monitoring, our children will replicate these lessons as citizens. The increasing levels of surveillance and monitoring in our lives have created a type of fish-bowl society that would have been unthinkable a generation ago. As the "expectation of privacy" declines further with this new generation, we may find that the exceptions allowed for schools today become the rule for society tomorrow.

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