DRUG TESTS MISGUIDED, LITIGANTS SAY

DENVER -- Tecumseh school officials who want to test choir and band members
for drug use are targeting the wrong students, opponents of testing told an
appeals court.

School officials "have picked the students least likely to use drugs,"
opponents wrote in a new filing in the 10th U.S. Circuit Court of Appeals.

This week's filing is an attempt to persuade all nine judges of the court
to uphold a recent ruling by a three-judge panel. The ruling barred some
drug testing in public schools.

The filing was made by the American Civil Liberties Foundation on behalf of
three Tecumseh High School students who succeeded in their lawsuit to have
the school board's drug-testing policy thrown out.

The school board last month asked the full court to reconsider the 2-1
decision that voided Tecumseh's policy. The ruling said testing of non-
athletes violates the Constitution unless a school has an "identifiable"
drug-abuse problem.

In the filing, opponents also argued courts have no way to set a specific
standard for determining when schools would be allowed to test nonathletes
for drug use. Each school's situation needs to be considered separately,
the opponents said.

They made that argument in response to Tecumseh's contention that school
districts throughout Oklahoma are confused by the court's March decision.

Drug testing of athletes is not at issue because the U.S. Supreme Court in
1995 ruled in a case from another state that schools can require student
athletes to submit to drug testing. At issue are students in other
extracurricular activities.

In Tecumseh, those students "exhibit no history of drug use," argued Graham
Boyd, national director of the ACLU's Drug Policy Litigation Project.

"In fact, the Tecumseh School Board, by targeting band, choir and the like,
have picked the students least likely to use drugs," he wrote.

He also disagreed with the school board's argument that the court's March
decision conflicts with U.S. Supreme Court rulings.

The school district policy "would strip students of the Fourth Amendment's
fundamental protection against suspicionless searches, merely upon the
recitation of some rationale, no matter how broad or unsubstantiated," Boyd
wrote.

In seeking to overturn the 10th Circuit's decision, the Tecumseh School
Board cited statistics from the current school year to show that the
district has a drug problem.

Boyd told the judges that they should not consider the statistics because
they have not been verified or subject to cross-examination and have not
been part of the case until now.