DRUG TESTING IN SCHOOL FACES POSSIBLE PITFALLS

The Issue - Mid-Pacific Institute Is Considering Mandatory Drug Testing Of
Its Students Because Of The Prevalence Of Drug Use Among Hawaii's Young
People.

MID-PACIFIC Institute is considering subjecting all its students to drug
testing, which, as a private school, is its prerogative. If parents object,
they can send their children to a public school or another private school.
Similar mandatory drug testing of all students in public schools would
certainly result in lawsuits alleging invasion of privacy and probably would
be struck down as unconstitutional.

The increased use of crystal methamphetamine among Hawaii's young people has
created understandable concern. Increased efforts are needed to inform
students about the dangers of drugs. Suspicionless random testing without
parental permission is legally impermissible.

City Prosecutor Peter Carlisle has proposed a program modeled after policy
in place at several Louisiana public schools, which test hair samples of
student athletes and students whose parents have requested the testing. The
Food and Drug Administration has approved testing of hair follicles for
drugs, and it is used by courts, police forces and other law-enforcement
agencies. That program probably would conform with constitutional
requirements, but one question is whether it would stigmatize students whose
parents refuse permission.

The U.S. Supreme Court ruled in 1995 that public schools could conduct
random drug tests of student athletes and expanded the ruling last year to
include students in other extracurricular activities. While upheld, those
policies are likely to discourage many students from participating in
activities that expose them to anti-drug peer pressure.

A federal judge in Texas struck down a school district's mandatory drug
testing of all public school students two years ago. District Judge Sam R.
Cummings pointed out that numerous cases in the Supreme Court and appellate
courts "made it clear that general concerns about maintaining drug-free
schools or desires to detect illegal conduct are insufficient as a matter of
law."

Last week, a federal appeals court in Cincinnati struck down a Michigan law
that required drug testing for parents who apply for or receive welfare
benefits. The rationale for the law was the need to protect children and to
encourage welfare recipients to seek work. District Judge Victoria A.
Roberts ruled that the testing violated "the closely guarded category of
constitutionally permissible suspicionless testing," which generally
requires a threat to public safety. The Supreme Court has ruled that random
searching of railroad employees, for example, is constitutional.

Senate President Robert Bunda has proposed a "pilot program" of universal
random drug testing in Hawaii's schools. Legislators have rightly balked
because of concerns about privacy rights and instead plan to form a task
force to study the issue. The legal issues are clear; the only issue is
whether to begin a drug testing program that conforms with constitutional
restrictions without creating other problems.