SHOULD SCHOOLS DRUG TEST? LAWYER-FATHER SAYS, 'YES'

To Drug Test, or Not to Drug Test? That is the Question. --
"Hamlet," Shakespeare (more or less)

Few Americans who are not lawyers will ever read the full opinion of
a case decided by the United States Supreme Court. The Rockridge
school district is considering establishing a policy that would
require some students to be tested for illegal drugs. A number
citizens claim such a policy will violate the "privacy rights" of
the students tested.

The leading case on the issue is the Supreme Court 2002 decision in
Board of Education v. Earls, 536 U.S. 822. I intend to set forth a
number of passages from the opinion. I believe that it is good for
citizens to see for themselves the depth of reasoning our court is
capable of bringing to an issue.

In 1998, the school district of Tecumseh, Okla., adopted a drug
testing policy, which required all students to consent to drug
testing prior to participating in any extracurricular activity.
Additionally students were required to submit to random drug testing
while participating in that activity, and to be further tested at
any time upon reasonable suspicion.

Not surprisingly, two students sued the School District, challenging
the policy. They alleged that the policy violated their Fourth
Amendment rights, and sought to have it struck down as
"unconstitutional." They also argued that the district failed to
identify a "special need" for testing students who participate in
extracurricular activities, and that the "Drug Testing Policy
neither addressed a proven problem nor promised to bring any benefit
to students or the school."

The Supreme Court, in Earls, disagreed and held that the School's
Drug Policy was "reasonable" and constitutional. "Because this
Policy reasonably serves the School District's important interest in
detecting and preventing drug use among its students, we hold that
it is constitutional."

The high court's reasoning to me appears unassailable. I reach that
conclusion both as a lawyer and a parent. Whether a policy is
reasonable is always a question of fact. Whether a course of action
or a policy is reasonable always involves a balancing of the
competing facts and interests.

"It is true that we generally determine the reasonableness of a
search by balancing the nature of the intrusion on the individual's
privacy against the promotion of legitimate governmental interests."

Two excerpts from the court's opinion clearly show the "facts" or
"governmental interests" that concerned the court. First, the court
stated "Drug abuse is one of the most serious problems confronting
our society today." In factual support of that statement, the court
further note

"The number of 12th graders using any illicit drug increased from
48.4 percent in 1995 to 53.9 percent in 2001. The number of 12th
graders reporting they had used marijuana jumped from 41.7 percent
to 49.0 percent during that same period."

The court, however, was entirely mindful of the fact that the Fourth
Amendment's guarantees did in fact apply to children in school. "The
Fourth Amendment to the United States Constitution protects 'the
right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures.' Searches
by public school officials such as the collection of urine samples,
implicate Fourth Amendment interests."

But the court distinguished between the amendment's application in
the "criminal context," and its application in the "school context."

"In the criminal context, reasonableness usually requires a showing
of probable cause. The probable-cause standard, however, "is
peculiarly related to criminal investigations" and may be unsuited
to determining the reasonableness of administrative searches where
the "Government seeks to prevent the development of hazardous conditions."

And the court explained the distinction.

"In certain limited circumstances, the Government's need to discover
such latent or hidden conditions, or to prevent their development,
is sufficiently compelling to justify the intrusion on privacy
entailed by conducting such searches without any measure
of individualized suspicion."

The court then proceeded to analyze the privacy interest involved in
the context of the school environment. "The subjects of the Policy
are (1) children, who (2) have been committed to the temporary
custody of the State as schoolmaster."

The court then stated: "The most significant element in this case is
. that the Policy was undertaken in furtherance of the government's
responsibilities, under a public school system, as guardian and
tutor of children entrusted to its care."

It then elaborated "When the government acts as guardian and tutor
the relevant question is whether the search is one that a reasonable
guardian and tutor might undertake." Then the Court went to the
heart of the issue.

"The need to prevent and deter the substantial harm of childhood
drug use provides the necessary immediacy for a school testing
policy. Indeed, it would make little sense to require a school
district to wait for a substantial portion of its students to begin
using drugs before it was allowed to institute a drug
testing program designed to deter drug use."

Some years ago, while I was still on the bench, I stopped to have
lunch in downtown Rock Island. A widely respected attorney sat and
visited. I told him I had just sent a probationer to prison after a
number of unsuccessful attempts at drug treatment. I recall my
friend telling me that once his clients became hooked on crack
cocaine, "it became their God." I had by that time reached a similar
conclusion. He put it more eloquently.

Three additional arguments are generally advanced in opposition to
testing: (1) keeping kids drug free is a job for the parents; (2)
there is a danger of a "false positives;" and (3) the expenditure of
$35 per test is a waste of funds that could better be utilized elsewhere.

Some years ago, when Alleman was about to begin its program of drug
testing, I asked one of the dads what he thought. He replied, "It's
a tool that's not available to me. I'd rather know sooner rather
than later." I find that logic compelling. When kids spend more
waking hours at school than at home, the argument that "it's a job
solely for the parents" is less than convincing.

The argument about "false positives" is also unpersuasive. My
sources tell me that "false positives" from hair samples are
virtually nonexistent. Dave Van Landegen, the head of Rock Island
County probation, advises that his office, which has used
"preliminary" urine drops for years, solves that problem
by immediately having more sophisticated testing done whenever the
person dropping contends that the "preliminary test" is faulty.

Nor does the $35 cost argument wash. If the cost per test is indeed
$35, then 100 tests cost $3,500. If just one child becomes drug
addicted, the cost to send him for in-patient substance abuse
treatment is $515 per day at a facility in Rockford. When it is
understood that the average stay is 30 days, the cost of treating
just one child is in excess of $15,000. When a delinquent child with
a drug addiction is sent to St. Charles, taxpayers pay $153 per day.

From my point of view, that of a parent and a lawyer, it makes
sense to test. My dad once told me, "If you never start smoking,
you'll never have to quit." If just one child doesn't start using
drugs, the school renders a great service to that family. In
this balancing of "the right of privacy,"versus "the health of a
child," I would opt for the latter.

John Donald O'Shea of Moline is a retired circuit court judge.