PRIVACY AND THE PURSUIT OF POT IN POTTAWATOMIE

Nobody much complained when the Tecumseh School Board, formally Independent
School District No. 92 of Pottawatomie County, Okla., voted to force all
students in every extracurricular activity, from choir to FFA, the Future
Farmers of America, to undergo drug tests.

As one parent told the board, "School's a training ground and this is
something they have to get used to."

Ah, yes.

Nor did anyone notice the irony when Tecumseh Superintendent Tom Wilsie
signed an exclusive vending machine contract with Coca-Cola. There would be
more money upfront, he told the board, and that, suggested board member
Terry O'Rourke, would almost cover the cost of the drug-testing program and
thus almost totally "eliminate" the cost to students.

Unfortunately, most members of the U.S. Supreme Court didn't notice the
irony either. In oral arguments in a suit challenging the rule's
constitutionality two weeks ago, most of the justices seemed blithely
undisturbed by this form of civics instruction in the land of the free. "No
one is arrested," said Justice Stephen Breyer. "It's counseling."

The only exception to this near-unanimity appeared to be Lindsay Earls and
her family, who brought the suit when she was a Tecumseh student. She's now
a freshman at Dartmouth.

Lindsay Earls seems to have understood more about constitutional privacy
rights than the illustrious judges or the Justice Department lawyer, who
saw nothing wrong with mandatory random drug testing, even if it involved
all students. As Justice Antonin Scalia told her lawyer, the "school
district was trying to train and raise these young people to be responsible
adults." It's certainly an original way to teach citizenship.

The high court hasn't yet rendered its decision but from the questions and
from its decision in another drug case last week -- that one from Oakland
- -- it's pretty clear which way the court is going to go.

In the Oakland case, the court, reversing an appellate court ruling, held
8-0 that federal law allowed the eviction of any tenant from public housing
for drug use by any household member or any guest, even if that drug use
took place without the tenant's knowledge and in some place removed from
the premises.

The case was brought by four elderly Oakland Housing Authority residents,
among them Herman Walker, a partially paralyzed 79-year-old whose caretaker
possessed cocaine, and Pearlie Rucker, whose mentally disabled daughter was
arrested on cocaine charges three blocks from their home. The other two had
teenage grandsons who were arrested smoking marijuana in the project's
parking lot.

But the fact that the tenants had no apparent knowledge -- or, in the case
of Walker, who is totally dependent on help, little control of his
caretaker -- did not trouble the justices. The law, said Chief Justice
William Rehnquist, drawing himself to his full Pecksniffian heights, is the
law.

But in fact the inflexibility of the drug-eviction process seems never to
have been intended by Congress. The law, the U.S. Court of Appeals for the
9th Circuit held, was ambiguous and, judging by the text of a 1991 Senate
report, assumed precisely this kind of exception.

Although Congress never wrote an innocent tenant exception into the housing
statute, the Senate report accompanying revisions declared, "Eviction would
not be the appropriate course if the tenant had no knowledge of the
criminal activities of his/her guests or had taken reasonable steps under
the circumstance to prevent the activity."

In its original regulations, the Department of Housing and Urban
Development seemed to allow for precisely that flexibility, giving local
housing authorities "discretion to consider all of the circumstances of the
case, including the seriousness of the offense, the extent of participation
by family members, and the effects that the eviction would have on family
members not involved in the proscribed activity. In appropriate cases, the
PHA may permit continued occupancy by remaining family members."

But in 1996, the Clinton administration imposed a zero-tolerance policy,
which, in the words of the lower court, "ties federal funding to increased
crime-related evictions."

The attempt to protect public housing tenants from the crime and nuisance
associated with neighbors' drug use and drug dealing -- a major problem in
some projects -- is totally understandable. It's also understandable that
the people of Pottawatomie County don't want to send their children to what
Justice Anthony Kennedy, once a Sacramento liquor lobbyist, called a
"druggie school."

But there was a time not long ago when infringements on privacy and
property rights had to be balanced against the evils that any infringement
on those rights is supposed to reduce. And needless to say, the FFA kids
and choristers are the least likely to be involved in drugs.

Justice Scalia once rejected the drug testing of customs agents as
requiring "an excretory function traditionally shielded by great privacy"
and thus "a search particularly offensive to personal dignity."

But these, of course, are only kids and poor old people, and they're not
entitled to any such things.