POLICING SHOULDN'T SUBVERT INDIVIDUAL RIGHTS

It hasn't been a good year for privacy rights and protections against
unreasonable police intrusions. Then again it hasn't been a good couple of
decades. Since the mid-1980s and in the name of the war on drugs, the
United States Supreme Court has whittled the Fourth Amendment down to
skeletal, brittle principles.

In the term just ended, the court opened the way to random drug testing of
all pupils involved in extracurricular activities. Whether it's choir,
cheerleading or the football team doesn't make a difference, nor does age:
Even middle-school pupils are fair game for urine samples. The court also
backed police officers' increasingly common practice of interrogating
people and searching their belongings without a warrant, so long as people
submit voluntarily. But cops don't have to tell people that they have a
right to refuse being searched or interrogated.

In both cases the court has expanded police powers at the expense of
individual rights, for no greater purpose than chasing after dope. It won't
stop at dope. The narrower view of the Fourth Amendment will be taken by
police and school disciplinarians as vindication for a slew of intrusive
practices that have until now taken advantage of gray areas in the law.

Dope-sniffing dogs, locker searches and even lockdowns are permissible in
schools with or without reasonable cause. The ruling on drug testing will
give principals yet one more tool to leverage discipline with intimidation,
but toward a much larger portion of the student body. A 1995 Supreme Court
ruling had endorsed random drug testing only so long as it was limited to
athletes.

The reasoning was dubious then -- extracurricular activities are no less a
part of the educational experience for being voluntary, so why single out
athletes? -- and it is dubious now. The school's "custodial responsibility
and authority," to quote from Justice Clarence Thomas' opinion, does not
make it an arm of the police department or a substitute for parental
authority. But that, in fact, is what the ruling sanctions while
maintaining that artificial distinction between those students involved in
extracurricular activities and those not.

How random the tests will be will decide their fate in the long run. School
officials are rightly worried about a new brand of lawsuit, the kind that
claims discrimination, favoritism, invasion of privacy during random
testing. But no school is forced to drug test. The fewer intrusions, the
better, both for the bottom line (drug tests are expensive) and for the
message schools impart on youngsters. Schools should be teaching the values
of the Bill of Rights, not showing how to skirt its principles. They still
can, with policies severely limiting drug testing or avoiding it.

The same reasoning applies to policing. Expanded police powers shouldn't
translate into policing dragnets. The "voluntary" question- and-search case
is especially relevant here because the Volusia County Beach Patrol has
been accosting individuals, interviewing them and taking their picture
without permission for years, under the guise of preventive police work.
Few questioned the practice, which took advantage of one of those legal
gray areas. Gray no more.

Still, not everyone knows his or her rights, and few people are willing to
challenge the authority of a police shield. That the encounter is
"voluntary" doesn't make a difference. The tone is still set by the police
officer, not by an individual's right to be left alone. But tones are set
by wise police policies, too. It is still the wisest policy to respect
individual rights first. Even down to its barest bones, the Fourth
Amendment says no less.