DRUG TESTING POLICY IN MIAMI'S SCHOOLS IS BROAD IN SCOPE BUT PURELY VOLUNTARY

MIAMI -- When the afternoon bell rings at Coral Park High School, 3,760
kids flood the hallways with a day's worth of pent-up energy, opening and
slamming locker doors before they squeeze out of the crowded building.

How many of them are using drugs or alcohol?

In a couple of months, Dade County Public Schools will have in place a
pilot program for random drug testing that may provide some answers for
their parents, and to a lesser degree, the school district.

Other schools around the country are watching closely as Dade County, the
fourth-largest district in the country, attempts this controversial,
voluntary drug testing policy. Miami parents must grant permission for
their children to be tested, and students still will have the right to
refuse.

School officials also are watching a small district in Rushville, Ind.,
where the high school is screening the majority of its population by
requiring drug testing for students participating in any extracurricular
activities.

"This is still an evolving area so a lot of different programs have to be
tested in the courts until we can be sure what is allowed," explained M.
David Gelfand, professor of constitutional law at Tulane Law School.

Drug testing is becoming more common in private schools, where parents
often seek out a program with stricter discipline and fewer liberties than
public school. A parochial high school in Louisiana made headlines in
recent months with its decision to test students for drug use through hair
analysis rather than the more typical and less costly urinalysis.

In public schools, though, the legal question becomes whether a student,
who is there by right rather than choice, can be compelled to allow the
search that is inherent in random drug testing. The Fourth Amendment to the
Constitution protects the individual against unreasonable searches and
seizures.

The Supreme Court's last word on the subject was a 1995 ruling which
allowed a school district to force student athletes to submit to random
drug testing before they are allowed to participate in sports. The Indiana
school district's policy already has been approved by the 7th U.S. Circuit
Court of Appeals, although the American Civil Liberties Union has requested
a rehearing and the case may ultimately be headed for Supreme Court review.

In New Orleans, District Attorney Harry Connick is so enamored of school
drug testing that his office is hosting a conference in April to pitch its
merits to both public and private school administrators. Mandatory drug
testing is "not an unreasonable search under the circumstances," Connick
says.

Proponents like Connick often cite the pursuit of safety and a healthy
learning environment for all students as legal justification for testing
public school students. Airport metal detectors are a similar example of
searches made reasonable by circumstance, Connick said.

The 7th Circuit's decision to uphold the Rushville school district appears
to expand the boundaries set by the Supreme Court in 1995, Connick said,
and he calls it a step in the right direction. He thinks the Miami policy
may be overly broad to pass constitutional muster, an opinion shared by
other legal analysts, but he agrees with what they're trying to do.

Chosen at random

Miami-Dade parents who want their teen-agers tested will have to sign up
ninth through 12th-grade children for what amounts to a drug testing
lottery. And when the student's number is chosen and he or she is
instructed to report for testing within 24 hours, the student still will
have the right to refuse the test. The parents are notified of the refusal
and in the case of testing, must accompany the child to the off-campus
testing site.

The results of the individual tests will be made known only to the parents,
though the school district will be notified how many students out of the
total tested positive.

How many parents will sign up their children and how many students will
then agree to be tested is anybody's guess. And since individual results
will be private there will be no disciplinary action by the district
against students who test positive.

"I see a flaw in their plan in that if you want to be tested you can
volunteer, but if you don't, there's no ramifications," Connick said.
"That's not, to me, going to be very effective."

"Hopefully they can work it out. I support it," Connick said. "Drug testing
is a cornerstone of solving the drug problem."

"When you see what got adopted (in Miami) the phrase comes to mind that a
camel is a horse that was created by committee," observed Howard Simon,
executive director of the Florida ACLU. The ACLU was threatening to take
the district to court over the original policy proposed by 26-year-old
school board member Renier Diaz de la Portilla until the board incorporated
the student's right to refuse the tests.

Diaz del la Portilla concedes that the policy, scheduled for board
ratification this week, is not as strong as he wanted, but he thinks it can
be a tool to open communication between parents and children.

"My response is, great idea! But why go through this sham of a policy?"
Simon said. "You want to initiate communication between parents and their
children? Tell teachers to call parents when they think their children are
behaving erratically and may be using drugs."

"This program is a foot in the door," Diaz de la Portilla said. "What we
have to look at in this first year is the level of satisfaction in the
community. There's a deterrent aspect. There's no way to measure how many
students will be dissuaded from using drugs by this policy."

Alex Annunziato, president of districtwide student government, says the
most common reaction from students about the drug policy is, "Why, what's
the point? His proposal does not deter drug use."

"Mr. Diaz de la Portilla would have you believe (the policy) fosters
communication, but it fosters confrontation," Annunziato said. The only
students he knows who say they will agree to be tested are those who are
afraid they'll be labeled "druggies" if they don't, he said.

The cost of testing

If it costs $200,000 to test 5,000 students over about three months in this
pilot program, Annunziato asked, how much will it cost to test students for
a year? "We don't even have enough textbooks."

"I think it's an invasion of privacy," said 18-year-old Louis Flores, a
junior at Coral Park High School. "You're old enough to know if it's good
or bad for you. I have friends who use drugs. As a matter of fact, I have
friends who sell drugs. But that's their business."

Esperanza Cuevas, a 17-year-old senior at Coral Park, wonders what the
point of drug testing is if the school system is not going to do anything
about those students who test positive. "It's a waste of money," she said.

Elizabeth Rodriguez, an 18-year-old senior and editor of the yearbook said
she doesn't think parents should learn about their children's drug use
through the school. "It should be through their relationships with their
kids," she said.

A significant number of students are under the influence of drugs during
the school day, she concedes, adding that it's disruptive in some
classrooms. It is not uncommon for kids to go off campus to do drugs during
their lunch break, she said.

Still, she said, Coral Park is one of the district's better high schools.
"There are few fights. It's quiet."

Diaz de la Portillo agrees that the open campus policy at many high schools
make it easy for children to do drugs. But the schools are too large to
attempt to feed all the students in the cafeterias, he said. Coral Park is
not the largest high school in the district -- another campus has more than
5,000 students.

The school district spends about $4.6 million on drug education programs.
Diaz de la Portilla would like to see students who refuse to take the drug
tests be forced to enroll in a special, intensive drug education program.

And he also wants the board to eventually approve random drug testing for
student athletes, something the school district's attorneys have advised
against. Tulane University's Gelfand advises that the "quasi-consensual"
policy may be legally problematic as written since a student's refusal to
take the test would be perceived as an admission of guilt by the parents
and perhaps the school district.

"We can't be fearful of lawsuits," Diaz de la Portilla said. "We've got to
do the right thing. In public education you're always getting threatened
with lawsuits."

ACLU attorney Simon warns that trying to broaden the drug testing policy
could get very costly for the district.

"If he does that, then all the money that should be spent on drug education
will probably be spent stupidly on lawyers and court costs. That would be
the real tragedy in all this," Simon said.

2,000 students tested

The random drug testing policy in Rushville, Ind. has been in place since
September 1996 and approximately 2,000 students in the district's only high
school have been tested. Attorney Rodney Taylor, who represented the school
board before the 7th Circuit Court of Appeals, says the district is keeping
confidential the number of students who have tested positive for drug use,
but says that there has been no noticeable drop in participation in
extracurricular activities in an attempt to avoid drug testing.

"It's totally nonpunitive," Taylor said. Once a student who tests positive
for drug use is retested and determined to be drug-free, he or she is
allowed to rejoin extracurricular activities, he said.

"One of the things we've learned is it provides a peer pressure excuse,"
Taylor said. "The kids can say I don't want to try this because I want to
be on student council, my number could come up. It provides a built-in
excuse for these kids."

Tulane's Gelfand says he's not as skeptical about the constitutionality of
Rushville's policy as he is about Miami- Dade's because it's not as
broad-based. A student could avoid the whole drug testing question by
avoiding extracurricular activities, he said.

"It's still a bit of a step to say being on the chess team is like playing
football," Gelfand said, referring to the Supreme Court's acceptance of
drug testing athletes. A person who does drugs and plays football may be a
danger to himself and others, Gelfand said, adding, "But it's possible the
court may find that acceptable."

"But this seems like a strange way to go about it, because the person whose
extracurricular activity is doing drugs is going to be chased out of other
extracurricular activities," Gelfand said. "I'm not sure that as a policy
matter it makes good sense."

Copyright 1998 Houston Chronicle