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Independents Face A Legal Minefield In Drug-Testing Students

INDEPENDENT schools proposing to conduct drug tests must be mindful of
inevitable legal challenges. Drug-testing cannot be viewed as a punitive
measure. It also should not be seen in any way as a primary means of
dealing with a problem, but only as part of an overall supportive regime.
It should be the last option.

Careful thought must be given to the processes to be followed. It would be
prudent for schools proposing drug testing: to have a full and detailed
policy in place that must be. If approved by the school council: to avoid
random drug tests; to use drug testing. only as agreed, as part of a,
program of rehabilitation and counselling entered into voluntarily by the
student and their parents or guardians: the policy be meticulous. and every
school must ensure that there is procedural fairness; documentation needs
to be completed and maintained: confidentiality must be rigidly enforced.

Potential legal and practical issues a school will need to consider in
implementing a voluntary 'second chance' drug-testing policy such as that
proposed by Melbourne Grammar School include: Who conducts the testing and
at what venue are the samples taken? Is there any medical supervision of
the taking of samples and the testing? Who, on behalf of the school,
monitors and records test results? How regularly are the tests conducted,
what type of testing is undertaken and what drugs are being screened for?
Who pays for the ongoing cost of testing? Is there an acceptable level of
positive test results or not? Can the results be influenced by second -
hand exposure? Has the school meticulously compiled with its own stringent
written policy in terms of the procedures followed?

Another potential area of legal dispute concerns discrimination on the
basis of a student suffering from a medical condition. The school, should
find out about potential medical problems before taking any action that
could prove detrimental to a student.

THERE are no reported legal cases in Australia dealing with privacy,
liberty or discrimination pertaining to drug-testing in schools.

The overseas experience has been that school drug-testing programs
under-report drug use. Many Internet sites are specifically designed to
share information on how to beat drug tests.

Many drug-related issues that schools experience have legal consequences.
Students may tell a teacher that they use an illicit drug. Apart from the
limited mandatory reporting responsibilities of schools, there is no breach
of the criminal law if the school falls to notify parents or police. Should
the teacher do anything further?

Many schools have implemented procedures so that the principal becomes
aware of illicit drug use at school. Most schools have in place protocols
whereby the principal can obtain assistance and advice from the police -
for example, on how to deal with use, possession or distribution of drugs
by a student.

More complex problems arise when, as part of counselling treatment, a
student confides in the school's psychologist that they are taking illicit
drugs. The complexity arises because registered psychologists need to
comply with their professional codes of behaviour and practice regarding
privacy and confidentiality.

Some schools have tried to address the issue of drug taking by installing
surveillance cameras. But many states have laws that prohibit certain types
of surveillance.

Teachers often receive information that leads them to strongly suspect
students may have illegal substances in their locker. School lockers are
the property of the school and can be searched if the teacher believes that
to be necessary. That is normally spelled out in documents provided to
pupils and parents.

The same principle does not apply to a student's bag, which is the
student's property. Schools normally manage this by way of discipline
within the student code of conduct.

To ensure that no one in school can successfully pursue a defamation claim,
great care must be exercised when schools document, publish or distribute
any material that might concern a student's alleged drug use.

When schools take disciplinary action against students for their
involvement in illicit drugs, the school must ensure there is strict
compliance with the internal documentation governing school discipline.