SCHOOL DRUG TEST DEBATE SHARPENS

Lawsuit: A Texas District's Requirement For All Students Has Provoked A
Constitutional Fight With Far-Reaching Implications.

Perhaps it was inevitable. As worry over the drug problem in schools
deepened, someone was sure to suggest sooner or later: Why not require all
students to take and pass a drug test?

That is happening in a little Texas town -- Lockney, not far from the
panhandle city of Plainview -- where the school board has put into effect
the nation's most rigorous testing program for public school students.

Lockney's public school population in grades six through 12 is included in
the testing pool, and parents must sign a consent form to allow a test. In
the program's initial phase, every student must be tested. Afterward, it
goes to a monthly random test of 10 percent of students.

A refusal to give consent counts as a positive drug test, with disciplinary
action following.

Predictably, a constitutional fight is under way in the federal courthouse
down the road in Lubbock. Judges and lawyers have seen it coming, as the
trend toward drug and alcohol testing has spread through school life:
starting with student athletes, then widening to others.

In 1995, the Supreme Court, in its only full-scale decision on student drug
testing, upheld urine screening for students who try out for sports teams.
The decision came in a case involving the school district in Vernonia, Ore.

That ruling, the National School Boards Association said at the time, gave
school officials "a policy discretion that had been problematic before."

A Popular Policy

Drug testing of student athletes had been gaining as a policy idea since the
1986 death from a cocaine overdose of Len Bias, a University of Maryland
basketball star. But it was unclear, until the court ruled, whether student
testing would be found to be constitutional under the Fourth Amendment,
which bans "unreasonable" searches and seizures. The court said that testing
- -- at least in some circumstances -- could be done constitutionally.

The Fourth Amendment limits the search authority only of public schools and
colleges -- and drug tests are considered a search -- because the
Constitution applies only to acts of government agencies or officials.
Private schools remain free to adopt drug-testing policies to their liking.

When the court ruled in 1995, few public school districts around the nation
were doing testing, according to the School Boards Association. But
afterward, schools -- and then courts -- began taking the Vernonia ruling as
a signal of constitutional permission.

Relying on that ruling, a federal appeals court in Chicago broadened the
judicial tolerance for testing. It upheld mandatory drug tests of all
students at Rushville High School in Indiana who wanted to take part in
extracurricular activities -- everything from the Future Farmers of America
to the band to foreign language clubs.

Dissenting judges made a prediction: The decision "takes us a long way
toward condoning drug testing in the general school population."

That was in March 1998. Later that year, the Supreme Court refused to review
the Rushville case. Last year, the justices declined to hear a challenge in
another Indiana case to a mandatory test of public school students who had
been in a fight at school.

A Milestone

The next milestone has been reached in Lockney, a community of about 2,200
in the cattle-feeding and meat-packing country of the northern Texas plains.

Thursday night its school board upheld the first disciplinary decision under
the policy -- the case of Brady Eugene Tannahill, 12, a sixth-grader at
Lockney Junior High.

School officials ruled that Brady had to be punished because his parents
refused to permit him to be tested. Brady was the only one among 400
students covered by the program whose parents would not permit testing.

His father, Larry E. Tannahill, could not be reached to comment. But he told
Reuters this month: "One of my arguments has been [that] if you think you've
got a problem with one of my boys, call me. I'll take care of it. The good
Lord gave them to us, not to the school district."

Tannahills File Suit

Brady and his father have sued the school district, the school board and
Superintendent Raymond Lusk. The lawsuit says Brady "has not used any drugs"
and that the school district has no reason to believe that he does.

The school board has agreed to hold off punishment until after the case
ends. If the school board wins, Brady faces escalating levels of punishment,
beginning with a 21-day suspension from school activities, and reaching
transfer to another school and a ban on participation in extracurricular
activities for the rest of junior high.

By upholding the superintendent's decision that Brady has violated the
policy, the board has signaled "they want to resolve this through
litigation," says Graham A. Boyd of New Haven, Conn., one of the Tannahills'
lawyers. Boyd is head of the American Civil Liberties Union Foundation's
project on drug policy lawsuits.

In announcing the policy in February, Lockney school officials said, "It has
been determined that there is a significant drug and alcohol use (and
possibly abuse in some instances) among students, to a point that warrants
implementation of a drug-testing program."

The statement gives no details of the problem but says the view is based on
"input from staff, students, community members, parents and law-enforcement
officials."

Rusk declined to discuss the policy, saying the school district's lawyers
could respond. They were not available, but one of them said earlier this
month, "The district believes it has a policy that is defensible."

The testing program in Lockney, the ACLU's Boyd says, "is at the very
cutting edge of this issue. This district is the first in the country to
enact such a policy."

Around the nation, Boyd says, most public schools do not impose drug
testing. Of those that do, most confine it to athletes, and "a handful of
others" are testing students in extracurricular activities.

"Most people understand the line to be drawn at athletics," he says.

The Tannahills' lawsuit claims that the program violates Brady's
constitutional right of privacy. A key issue will be whether the school has
enough evidence of a drug problem to make the testing universal.

When the appeals court in Chicago upheld testing for every student in
extracurricular activities, it said: "Certainly successful extracurricular
activities require healthy students."

The dissenters replied that the requirement of healthy students "is as true
for scholastic matters as it is for extracurricular activities." If that is
a sufficient basis for testing, then everyone could be tested, the
dissenters complained.

And that is what Lockney school officials concluded, setting in motion a
controversy reaching well beyond the Texas plains -- perhaps to the Supreme
Court.