INDIANA COURT STRIKES DOWN RANDOM DRUG TESTING IN SCHOOLS

Appeals Panel Sets Precedent In Its Decision On Kokomo Case.

INDIANAPOLIS -- In a decision that could force schools across the state to
abandon random drug testing policies for athletes and other students, the
Indiana Court of Appeals on Monday declared a Howard County school
district's testing policy unconstitutional.

The three-judge panel's unanimous ruling found that a random drug testing
policy adopted early last year by the Northwestern School Corp. near Kokomo
infringed on the rights of students by violating state constitutional
protections against unreasonable searches and seizures.

Although the decision strikes down the use of random drug testing, schools
still retain the authority to test students if there is a reasonable
suspicion of drug use.

David Emmert, general counsel for the Indiana School Boards Association,
said if the ruling is allowed to stand, or a stay isn't granted by the
Indiana Supreme Court, his group will have little choice but to advise
schools statewide to end random drug testing programs.

"This is not what we wanted," he admitted. "This will be upsetting to many
Indiana school districts who will now have to stop the practice. If this
isn't appealed, it becomes the law of the land, at least in Indiana."

Emmert estimates that over the last 16 years, nearly one-third of Indiana's
290 school districts have adopted some type of random drug testing policy.

The sweeping ruling comes despite several recent decisions handed down by
the U.S. Supreme Court and a variety of federal appellate courts upholding
the constitutionality of random drug testing in schools. At least three of
those federal rulings involved policies adopted by Indiana schools.

In reaching its decision, however, the Indiana appeals court ruled that the
state constitution offers even broader protections than the Fourth
Amendment of federal constitution -- although the language in each document
is identical -- in shielding citizens, including students, against
unwarranted searches and seizures.

As a basis for its ruling, the appeals court cited an Indiana Supreme Court
decision that said the state's constitutional prohibition against
unreasonable and illegal searches should be given a more "liberal
construction" than its federal counterpart.

"We may part company with the interpretation of the Supreme Court of the
United States or any other court based on the test, history, and the
decisional law elaborating the Indiana constitutional right," Judge Patrick
D. Sullivan wrote for the court.

"The framers of the Indiana Constitution intended to protect the people
from abuses of police power. We see no reason to depart from requiring
individualized suspicion to protect against the abuses associated with
blanket suspicionless searches of school children," said Sullivan, who was
joined in the opinion by judges Nancy Vaidik and Mark Bailey.

"The Indiana test regarding searches and seizures has always been one of
reasonableness," the court added. "When focusing upon the reasonableness of
the official behavior in the instant cases, we hold that NSC's policy of
conducting suspicionless drug testing of students participating in
athletics, extracurricular or co-curricular activity, or those who drive to
school, is unconstitutional."

Another concern, the court pointed out, is that while various federal
courts have ruled on the constitutionality of drug testing policies, the
courts themselves can't seem to agree on a single or absolute basis for
instituting a policy.

While acknowledging that the district may have been well-intentioned in
adopting a drug testing policy, the court nonetheless concluded that the
decision went too far.

"The school does not propose a direct correlation between drug use and its
need to randomly test the majority of the students for drugs. Rather, NSC
admits that its goal is to prevent future tragedies. This is an
unmistakable move toward randomly testing all students," the court said.

The district's random drug testing policy, adopted in January 1999, applied
not only to student athletes, but included seventh to 12th graders who
drive to school or take part in certain extracurricular and co-curricular
activities like drama, National Honor Society, choir, band, student
government, Future Farmers of America and Students Against Drunk Driving.

The policy was crafted by a group of parents and school officials after two
students died from drug overdoses and a recent graduate was killed in a car
accident involving the use of inhalants.

In all, the drug testing policy covered more than 400 of Northwestern High
School's 550 students and 250 out of the 300 students at Northwestern
Middle School.

One month after the policy was instituted, Rosa Linke, then a junior at
Northwestern High School, and her sister, Reena Linke, a freshman, along
with their parents, filed a lawsuit against the district, claiming that the
policy violated their privacy and constitutional rights. The family was
represented by the Indiana Civil Liberties Union.

ICLU attorney Kenneth Falk, who argued the case before the appeals court,
said Monday's ruling was a resounding victory.

"I think the court found that, absent some clear linkage between current
(drug) problems and the need for drug testing, the court is saying all
those policies are unconstitutional. After today, every school lawyer in
Indiana will know that if their schools go ahead and (randomly) test,
they're subject to lawsuits," he said.

The decision, he added, clearly balances the rights of schools against the
rights of students not to be subjected to unwarranted drug testing.

In the case of random testing, "you end up balancing away people's
constitutional rights. The fact that student 'A' may be using drugs,
doesn't give grounds to test student 'B', " he said.

Noreen Linke called the verdict a vindication for her daughters.

"They're good girls who don't do drugs and they were appalled to be forced
into signing on to this policy or risk being forced to quit (school
activities). This whole policy was impractical and offensive," she said.

"The general assumption in this country is that you're innocent until
proven guilty. We don't expect to be grabbed off the street and told we're
going to be drug tested because it's in the best interest of the community,
but we expect our kids to submit to that and be happy about it," she said.

Emmert, however, has a decidedly different opinion, claiming the ruling
"will encourage kids to us alcohol and drugs because they know they're not
going to be tested."

"I think parents are going to be disappointed because drug testing policies
give their children a reason to say no," he said. "I guess the fact that
kids are using drugs was an insufficient reason (for the court to allow
testing). I'm somewhat baffled."