JUSTICES ON RIGHT DRUG-TESTING COURSE

WASHINGTON -- The inevitable battle over the next nominee to the Supreme
Court, which is increasingly politicized and tilting to the right on
fundamental national issues, may well be the most significant development
of the decade.

None of the justices has yet indicated a willingness to step aside, but
three of the nine are older than 70 and some have had serious illnesses.
Retirement rumors circulate regularly. The recent Senate defeat of
conservative U.S. District Court Judge Charles Pickering of Mississippi for
elevation to a federal appeals court was meant to signal the White House
that a divisive right-winger would have trouble getting confirmed if picked
for the high bench.

Meanwhile, the Supreme Court limps along with narrow, 5-4 decisions aimed
at restoring the sense of judicial balance that the court lost when the
justices inserted themselves into the 2000 election. On the basis of
dubious legal reasoning, they handed the presidency to George W. Bush, who
had lost the popular vote.

So it was a surprise to learn that the justices heard a case last week in
which a comfortable majority seemed in agreement, based on their unusually
frank comments from the bench.

It was the kind of civil liberties case that traditionally sharply
separates the liberals from the conservatives. The question was whether
random drug testing of high school students involved in extracurricular
activities violates their constitutional guarantee against unreasonable
searches and seizures.

But the justices appeared to be more concerned about the potential spread
of "druggie" schools than the loss of individual privacy by students
embarrassed at urinating in a cup while a teacher listens. The teacher has
to listen, of course, to prevent drugged students from submitting urine
switched with others.

The Supreme Court has already ruled that such testing is constitutional for
athletes who take part in competitive sports. If indeed the court agrees to
expand the definition of reasonable student urine testing, it would reflect
more common sense than we sometimes see from this contentious,
ideology-driven court. The privacy issue comes at a time when the federal
anti-terrorist fervor threatens to trample individual rights in serious
ways. But urine testing in schools to fight drug abuse is a trivial
irritation compared with secret prison detentions and vaguely defined
military tribunals.

At issue was a program in a rural Oklahoma school district that requires
middle and high school students to pass drug tests as a condition for
participating in any activity involving interscholastic competition,
including cheerleading, debate, chorus, band and Future Homemakers of America.

A majority of the justices were clearly willing to give schools a broad
legal helping hand to keep drug abuse at bay. The American Civil Liberties
Union, which represented the student who sued in federal court to stop the
testing, found little sympathy from most of the court. Only Sandra Day
O'Connor and David Souter complained that students not likely to be on
drugs might feel they were being unfairly "penalized."

Justice Antonin Scalia wrote the 1995 opinion holding that drug-testing for
athletes was constitutional because of the safety risk of engaging in
sports while on drugs and the little expectation of privacy in locker
rooms. He seldom defends civil liberties, and now he appears ready to
extend a constitutional protection to the testing of all students, not just
those involved in sports or special activities. "You think life and death
is not an issue in the fight against drugs?" he said, dismissing the
concern about privacy.

The ACLU noted that drug use was not widespread in the Oklahoma school. The
student, Lindsay Earls, who filed the lawsuit, was not part of any drug
culture. But several justices pointed out that the testing was meant to be
a deterrent to help students resist peer pressure to experiment in the
first place. And they felt a school with few drug abusers had a right to
keep it that way.

The ACLU tried to make a distinction between the lack of personal contact
in sedentary activities like choir and the risk of physical harm from
drug-induced errors in rough-and-tumble sports. But students in
extracurricular activities represent their school, sometimes take overnight
trips and often drive to and from their activity after classes. They too
need to have self-control and to know that their companions do as well.

The justices are on the right track here. The nation's 14,700 public
schools need clarification about the limits of permissible student drug
testing. Justice Anthony Kennedy envisioned a school system in which one
school had drug testing and the other did not. He sensibly opined that no
serious student would prefer to attend "the druggie school." The case will
be decided before the court's summer adjournment.

The name of the next Supreme Court nominee, however, will probably not be.