THE DRUG-SCHOOL QUESTION

Thursday, March 21, 2002 - The U. S. Supreme Court rarely signals what it
will do in a given case, but the high court came very close Tuesday to
suggesting it will uphold a school district's right to randomly drug test
students who take part in school-sponsored extracurricular activities.

The court has previously held that high school athletes may be tested for
drug use on the theory that such tests are a legitimate condition to
participation in sports programs.

The issue now before the court arises from a testing program imposed in
Tecumseh, Okla. District officials there decided to randomly test among all
students enrolled in a variety of extracurricular activities that include
high school bands and Future Farmers of America.

Two families challenged the policy and are represented by the American
Civil Liberties Union.

Judging from comments by the justices during oral arguments this week, the
ACLU is in an uphill fight. The decision in the earlier school athletics
case was 6 to 3 and at least four members of that majority made it clear
that they didn't think there is a dime's worth of difference between the
two cases.

In fact, Justice Stephen G. Breyer told the ACLU attorney, "It's hard for
me to see how if I came out one way in Vernonia [the earlier case], I
should come out differently here."

Two other circuit courts, it should be noted, also have previously held
that drug testing similar to that in Tecumseh is constitutional.

Two factors figure heavily in the court's thinking. The first is that
students are minors and thus not entitled to the full panoply of privacy
rights accorded adults. The second is that schools have historically be
able to act in the interest of students and that specific programs may
address specific health threats.

The ACLU has argued vigorously that the actual drug threat doesn't justify
such a broad testing program and points out that testing has located only a
handful of violators. Unfortunately for the ACLU, the court rejected
similar arguments in the earlier case and several justices seemed to reject
them anew Tuesday.

Chief Justice William Rehnquist helpfully asked the school attorney, "The
existence of the policy might be expected to deter drug use, wouldn't it?"
(While positive test results may lead to school sanctions, they do not lead
to the filing of criminal charges.)

Assuming a ruling favorable to the Oklahoma district in the existing case,
a big question is still unanswered. Would the threat of student drug use
justify the imposition of a general student drug testing program? We think
it only a matter of time before that issue is squarely before the nation's
highest court.