JUDGE TOSSES SCHOOL DRUG TEST SUIT

Maggio Blames Missed Deadline For Dismissal With Prejudice

A lawsuit filed by parents against drug testing in the Conway School
District has been dismissed, but the plaintiffs' attorney plans to file a
motion asking the judge to reconsider.

Circuit Judge Michael Maggio dismissed the lawsuit Thursday with prejudice,
which means it cannot be refiled.

A motion for summary judgment was filed in November and the plaintiffs had
21 days to answer the motion. Maggio said he gave the plaintiffs more time,
but their attorney, Lynn Plemmons of Conway, still missed the deadline.

However, Plemmons said he did file the response to the motion for summary
judgment, but he didn't file all of the affidavits (sworn statements) that
went with his response.

"I'm filing a motion to reconsider. The order is in error for a number of
different reasons," Plemmons maintained. "The fat lady hasn't sung."

Plemmons said Maggio didn't look at the file but was depending on what
school district attorney Bill Brazil told him. Maggio confirmed that he
didn't have the file in front of him but was told by Brazil that there was
no response filed nor had Plemmons responded to Brazil's repeated telephone
calls.

Maggio said he later looked at the file. "He (Plemmons) filed a bare-bones
response on Jan. 10 - that was way after the deadline. He still did not
respond procedurally."

The judge said he even held the request from Brazil for a summary judgment
for another 20 days before he signed it "as a courtesy."

Brazil said Plemmons "got copies of the motion I've filed. He didn't
respond in time."

Plemmons was surprised when told Thursday that Maggio dismissed the lawsuit.

"He did? That's news to me," Plemmons said. The attorney said he had filed
a response in the lawsuit, "but we're still working on the affidavits."

Maggio also said that usually when a response is filed in a lawsuit, it
comes across his desk, not to take any action on, but just for
informational purposes. He said he had not seen anything on the Conway
drug-testing case.

Maggio said lawyers are always welcome to file motions to reconsider. If
Plemmons files such a motion, "we may or may not set it for a hearing."

Dr. Terry Fiddler, president of the Conway school board, said he was not
surprised the motion was dismissed, and he also wasn't surprised it was now
in limbo.

"This is lawyerese. I just want it to get to a resolved state. Whatever it
is the judge feels like he needs to do, whether he's going to hear the case
or not, the judge needs to do. I'm not upset about it," Fiddler said.

The board voted 4-3 in August to approve random drug testing of students in
grades 7 through 12 who are involved in extracurricular activities. Fiddler
voted against it but has said since that "it's backed by all the board
members" now that it is policy.

Plaintiff Michael Conine, who has two daughters in the Conway School
District, wasn't surprised at the news, either. "That figures. When you
live in a small-minded place, small-minded things happen."

Conine said he is vehemently opposed to drug testing students because it
violates their freedoms, and then other freedoms are in danger.

He added that the "lack of support from the newspaper has been appalling."

Conine said he finally "buckled" and signed the form allowing his children
to be drug tested so they could participate in an orchestra concert.
"Everybody was taken out of class (for the concert). They didn't have a
choice. My kids would still have had to go during school hours, which is
not extracurricular, but they would have had to sit in the audience," had
Conine not signed the drug-testing form.

He told school officials that "the very thing you are trying to teach our
kids to fight - peer pressure - is the very thing that's making me sign this."

Conine responded to comments by police officers who were quoted in the
district's lawsuit response that students have admitted to them they take
drugs. "Then do your job and arrest them. Don't use it as an excuse to
violate my kids."

Conine said he and his wife have been supportive and involved in the school
district and his daughters make A's and B's. "We have decided if the school
system is as bad as they said, and if their rights are going to continually
be violated, we're going to take them out and put them in private school."

Conine said the irony is that to afford private school he most likely will
have to take another part-time, minimum-wage job "and be drug tested."

Conway Superintendent James Simmons said he believes drug testing gives
students "an option to say no and a reason to say no to peer pressure and
their friends who say, here, smoke a little of this."

He also cited the recent drug-testing pilot study in Oregon, which showed
that a school that used drug testing on its student-athletes "had fewer
drug problems in the schools."

However, Bruce Plopper, one of the parents who filed the lawsuit, said the
study showed that many of those students turned to alcohol instead, because
it wouldn't show up on the drug test.

The other parents bringing the lawsuit were Henry Zimmerebner and Maureen
L. Zimmerebner.

The parents maintained in the lawsuit that the students' privacy is being
violated and that the "suspicionless" drug testing violates the Arkansas
Constitution, Arkansas common law and the spirit of statutory law in general.