SUPREME COURT OPEN TO STUDENT DRUG TESTS

WASHINGTON -- Several Supreme Court justices appeared ready Tuesday to
uphold drug testing for high school students who join the band, debate team
or other any competitive extracurricular activity.

During a fierce session of arguments over an Oklahoma school district's
testing policy, the justices expressed concern about drug use and appeared
open to a policy of testing the urine of students who have no record of
drug problems and who are in activities other than athletics. The court has
backed such testing for athletes.

"You think life and death is not an issue in the fight against drugs?"
Justice Antonin Scalia asked, challenging an American Civil Liberties Union
attorney representing students who protested the Oklahoma district's policy
as an invasion of privacy rights.

The justices' questioning of attorney Graham Boyd was unusually
antagonistic. At one point, Justice Anthony Kennedy posed a scenario
involving two schools: one that required drug tests and whose students were
clean and the other, a "druggie school." He told Boyd that most people
would choose the first school, except, perhaps, "your client."

Boyd countered that his client, Lindsay Earls, now a freshman at Dartmouth
College, had tested negative for drugs in high school. Earls said she
challenged the testing because she believed it violated her privacy and she
found it humiliating to urinate in a bathroom stall with a teacher waiting
outside.

During the hour-long session, the frustration of the two justices who most
obviously objected to the policy as a privacy infringement, Sandra Day
O'Connor and David Souter, was palpable. "It seems so odd to try to
penalize those students" who join activities such as choir and are less
likely to be on drugs than many others, O'Connor said. Souter said that if
the school district wins, it might lead to testing of all public school
students, regardless of their after-school activities.

Tuesday's case, which tests the breadth of Fourth Amendment protections
against unreasonable searches, will determine how far schools can go to try
to keep students off drugs. A ruling will affect the legitimacy of testing
programs that have spread across the country since 1995.

That year, the court allowed such tests for student athletes, citing the
safety concerns involved in sports and noting that athletes usually undress
together and have lower expectations of privacy.

In 1998, schools in Pottawatomie County, about 40 miles southeast of
Oklahoma City, began requiring students in all interscholastic
extracurricular activities to undergo random urinalysis.

A U.S. appeals court ruled against the program. It distinguished athletics
from other extracurricular activities and said the district had not
sufficiently identified a drug-abuse problem among the students to be screened.

Linda Meoli, lawyer for the school district, told the justices that the
district's program is a natural extension of testing athletes. She said the
program helps students resist peer pressure, because they can claim that if
they succumb to drugs they will flunk the urinalysis and not be able to
participate in chosen activities.

"What we really want to do is help students," Meoli said. She noted that
the court has given officials considerable latitude to regulate students in
the school setting.

Siding with the Oklahoma district, U.S. Deputy Solicitor General Paul
Clement told the justices, "Children today are on the front lines of the
drug problem."

Boyd countered that schools should not be able to force students to give
urine samples unless there is evidence of drug use or a question of safety,
as arose in the 1995 case from Vernonia, Ore.

That case was decided by a 6-3 vote; Justices O'Connor, Souter and John
Paul Stevens dissented. Justice Ruth Bader Ginsburg, who then was in the
majority that supported testing athletes, suggested by her questions
Tuesday that she might find testing non-athletes unconstitutional.