JUDGE: DRUG TESTING BY P-H-M NOT RIGHT

SOUTH BEND -- In one of his last decisions as a St. Joseph Superior Court
Judge, George N. Beamer told Penn-Harris-Madison school officials Friday to
stay out of the bathroom.

"There are few activities in American society more personal and private
than the passing of urine," Beamer wrote in overturning the district's
random drug-testing policy.

The policy called for random testing of all high school and middle school
students who were involved in extracurricular activities or who had parking
passes to drive to school.

A group of Penn students and parents challenged the policy in court.

In May, the U.S. 7th Circuit Court of Appeals ruled that nicotine testing
for those students with permits to park cars at Penn is unconstitutional,
and that part of the policy was dropped. However, the federal court upheld
the rest of the policy.

But Indiana courts have given the state Constitution's search and seizure
provisions a more expansive reading than the parallel federal provision,
Beamer wrote.

In fact, the Indiana Court of Appeals struck down in August a similar
policy instituted by Northwestern School Corporation in Kokomo.

In that ruling, the court did not explicitly ban drug testing where school
officials had probable cause to suspect drug use in a student.

The P-H-M policy has been suspended since the issuing of that ruling.

It will remain suspended pending a decision on whether to appeal Beamer's
ruling, said Dave Risner, director of pupil services at P-H-M.

"Obviously, we're very disappointed by the ruling," Risner said.

"I have not yet consulted with our corporation attorney (Jim Olson, of
Mishawaka) to determine where we go from here."

Attorney David R. Hoffman, who handled the case for the plaintiffs, could
not be reached Friday for comment.

Hoffman filed the lawsuit in October 1998 on behalf of Marci Stephens,
Tianna Joy and Candace Petill, then Penn High School students; Tiffany
Petill, who was a student in a lower grade in P-H-M; and parents Linda
Petill and Steven Ward.

Linda Petill could not be more pleased.

"God bless (Judge Beamer)," she said. "Thank God he understands what it
means to be an American and what it means to have our rights threatened."

If the strength of the wording in Beamer's opinion is any indication, an
appeal by P-H-M will likely not fare well in a court that has already
struck down the Kokomo policy.

The P-H-M policy "is indistinguishable in any legally significant way from
the policy condemned by the Indiana Court of Appeals," Beamer wrote.

"P-H-M recognized that fact by suspending . . . testing when that opinion
was handed down."

Beamer said the policy failed constitutional muster on several grounds.

For one, the policy applies to a substantial percentage of students,
including all participants in extra-curricular activities or driving to school.

He said P-H-M's policy differs from one in Vernonia School District that
was upheld by a federal court because in that school district, officials
discovered that student athletes were leading the drug culture.

"Indeed, we know almost intuitively that Penn students involved in
extracurricular activities are not the ones who have 'tuned in, turned off
and dropped out,' " Beamer wrote.

"A student's decision to join her school's volleyball team, French Club and
Bible Study program can hardly be seen as an indication that she is
abusing, or more likely to abuse, illicit drugs."

Beamer, like the appeals court in the Kokomo case, acknowledged the right
of school officials to search students they suspect of behavior against the
law or school rules.

But the school must have reasonable suspicions to uncover evidence of
violations, he said.

"It is no argument to claim that widespread random suspicionless testing
will be more effective," Beamer continued.

"It would be 'more effective' to test teachers, school administrators, the
superintendent, the school board, parents of students and visitors to the
schools in addition to all students."

An apparent strategy by the district to eventually randomly test all
students is another concern raised by both Beamer and the appeals court.

Beamer directly quoted from the appeals court decision, which stated that
"the danger of the slippery slope continues to haunt our jurisprudence."

Beamer, who has a granddaughter in her senior year at Penn High School,
admonished that such a policy teaches children only that it is permissible
to take away the rights of the powerless in our society.

"It is really true, as my Constitutional law professor used to say
facetiously, that would clearly be unconstitutional, unless we were doing
it to someone we didn't like," wrote Beamer, comparing the merits of the
case to the internment of American citizens of Japanese descent.

Former Chief Justice of the Supreme Court Earl Warren once told Beamer that
his involvement with that case was the greatest regret of his career,
Beamer said.

"It was not necessary and it was not right," he quoted Warren.

"So also here," he said.