Point Of View

COURT FLUNKS; N.C. DOESN'T HAVE TO FOLLOW

CHAPEL HILL - The last day of the U.S. Supreme Court's term was a difficult
one for the Constitution in the public schools. First, a bare majority of
the justices voted to uphold a public school drug-testing program aimed at
students engaged in extracurricular activities. Although the court had
previously accepted the testing of athletes, Justice Clarence Thomas'
opinion in Board of Education vs. Earls much more aggressively embraced
suspicionless testing. Gone were the limiting rationales of special risk
and exposure. Instead, the forced testing of a member of the school choir
was justified by general "health and safety concerns" rooted in the
"quasi-parental role" of public schools and triggered by national concern
over the use of drugs.

The intrusion -- which students understandably described as "humiliating
and accusatory" -- was coolly disparaged as "not significant." Privacy
interests gave way to claims of exigency -- though the district admitted
that drug problems in the school were "not major." And the testing scheme
was sustained, ironically, even though it was actually perverse. Studies
unsurprisingly demonstrate that students involved in extracurricular groups
are less apt to use drugs than their classmates. Stoners apparently don't
show up in droves to join the chess club.

The decision thus opens the door to the testing, without cause, of every
high school student in America. The Fourth Amendment has become an official
casualty of the war on drugs.

Next, another 5-4 ruling upheld, for the first time, the use of public
funds to support students' attendance at religious schools. The Cleveland
voucher program was characterized as "entirely neutral" toward religion,
since dollars followed the choices of parents rather than state dictates.
Even though 96 percent of the public money ended up in the coffers of
religious organizations, the program apparently didn't "foster" religion.

The fact that state dollars would be spent to pay for catechism classes
didn't matter. The long debate over the constitutionality of vouchers for
church schools was unceremoniously concluded.

The Cleveland case is a potent indicator of how far the law of the First
Amendment has moved. Justice Hugo Black's classic statement in Everson vs.
Board of Education (1947) that a state "cannot contribute tax-raised funds
to the support of an institution which teaches the tenets of any church" no
longer holds true. Justice Thurgood Marshall's belief that "the
Establishment Clause prohibits a state from subsidizing religious
education, whether it does so directly or indirectly," is also passe. We no
longer worry, as did Justice Wiley Rutledge, that "public money devoted to
the payment of religious education brings the quest for more, and the very
kind of struggles Madison sought to guard against." And Thomas Jefferson's
Bill for Religious Liberty was apparently wrong to conclude that
"compelling a man to furnish contributions of money for the propagation of
opinions which he disbelieves...is tyrannical."

Still, the Supreme Court's treatment of the vouchers case has been widely
praised. The argument seems to be that it's OK to breach the
constitutionally required separation of church and state if some public
schools are performing poorly. I doubt that Roger Williams or James Madison
would put aside principle so readily.

The best thing that can be said for these unfortunate rulings is that
though they fail to appropriately limit state power, they don't mandate its
exercise. Schools can test their students for drugs, without basis. But
they aren't required to. States can offer money to support religious
instruction. But they won't be forced to. The voucher and drug testing
decisions measure state power. And they come down far too heavily on the
side of government. But it is perfectly permissible for local authorities
to stay their own hands.

In North Carolina, then, we are free to choose a better path. Legally, our
justices could conclude that church-school vouchers and suspicionless
searches violate the North Carolina constitution. Surely our state charter
doesn't exist only to decide redistricting cases. Or, perhaps more
directly, our legislature could refuse to create a voucher scheme in the
first place, and our school districts could refrain from instituting
wholesale drug testing.

Not all protection of human liberty comes through the courts. One
superintendent I saw interviewed indicated it seemed inappropriate and
un-American to test students without at least some basis to believe they
were using drugs. He came closer, in my view, to our traditions of
constitutionalism than the Supreme Court has. A nation that forces all its
children, without cause, to pee in a jar under supervision diminishes its
culture. And in Carolina we've devoted massive energies to the development
of a strong system of public education. If we're wise, we'll protect it
from the depletion and division of vouchers.

Our dedication to a regime of constitutional freedom lies, once more, in
our own hands.