WAHKIAKUM DRUG-TESTING POLICY GOES TO STATE'S HIGH COURT

OLYMPIA --- A lawyer challenging Wahkiakum School District's random
drug testing of student athletes still hadn't finished making his
first point when Supreme Court justices started firing questions at
him Tuesday afternoon.

"How does this random drug testing work?" Chief Justice Gerry
Alexander asked attorney Eric Martin, representing the American Civil
Liberties Union.

What about requiring student athletes to take physical exams? Is that
an invasion of privacy? Was Martin also opposed to drug testing
athletes suspected of using illicit drugs?

"I was a little surprised," Martin said following the hearing.

Justices' jump into questioning "bodes well," added Martin, who also
represents to Wahkiakum High School families to challenged the
drug-testing policy. "It sounds like they may be struggling a little
bit with the issues."

Neither did the justices didn't spare Wahkiakum School District's
attorney, retired county prosecutor Fred Johnson, from rapid
questioning. After all, the state's highest court has yet to decide a
case about randomly drug-testing students, several public schools
across the state have adopted such policies, lawyers for both sides
said Tuesday.

At issue in the case is whether the school district's interest in
combating drug use overrides privacy protections in the Washington
Constitution. It usually takes weeks or months for the Supreme Court
to hand down decisions, and there is no timetable. Since the Supreme
Court agreed to hear the case in February, a handful of groups have
weighed in by submitting briefs to the Court. In one brief, state
Attorney General Robert McKenna said he supports the district's
drug-testing policy because it's in the public interest to protect
student athletes.

"Drug use by high school and college athletes poses a unique and
significant problem," McKenna wrote. Athletes use drugs to enhance
performance, prevent fatigue, mask pain and cope with stress --
causing them to hurt themselves and other athletes, he added.

The Washington Education Association (the statewide teachers' union)
and the Drug Policy Alliance submitted a joint brief in support of
the ACLU. They contend that random drug testing could cause students
to rebel or keep troubled teens out of sports when they need to be
involved the most.

"There's a lot of concern it could actually do more harm than good,"
Jennifer Kern, a research associate for the Drug Policy Alliance,
said in an interview after oral arguments concluded Tuesday. "It
could inflame adolescent rebellion."

The district adopted the policy in October 1999, saying attempts to
curb widespread drug use through other intervention programs wasn't
working. Two Wahkiakum families with students in public school teamed
up with the American Civil Liberties Union to sue the district.

Officials resumed randomly testing athletes last fall following the
Wahkiakum Superior Court ruling in favor of the district last summer.
Weekly, district officials draw the names of one middle school and
two high school athletes, who are driven to the county's health
department. There, they must urinate in close proximity to a health
department official.

The health employee either waits outside the bathroom while the
student urinates or stands in the doorway, but the health employee
never enters the student's bathroom stall, Johnson told the Supreme
Court during his 20-minute presentation.

Besides demanding details about the urine tests, justices focused
questions around how much privacy student athletes should have and
whether they should he held to a higher standard. "Washington courts
have long held bodily functions to be an arena of privacy," Martin argued.

"The district never sees the act of urination or the urine," Johnson
responded, adding that there is a lesser expectation of privacy with
student athletes.

Through the Washington Interscholastic Activities Association they
are subject to a number of regulations, and even students who don't
participate in extracurricular activities undergo scoliosis testing
and immunization, Johnson added.

Historically, Washington courts have granted its citizens more
privacy rights than federal courts, and Martin worried that
supporting Wahkiakum School District's drug-testing policy would change that.

"What the district is asking you to do is develop an exception," he said.

Listening intently from the public gallery, Cle Elum resident Jock
Young said he attended the hearing because his 17-year-old daughter
undergoes suspicionless drug testing at her Cle Elum high school to
play on the tennis team.

"We don't want our daughter to be forced to take the test," Young
said after arguments concluded. "She didn't want to abandon the
tennis team. ... There was no suspicion at all that she was using drugs."

Young is also being represented by the ACLU in a suit against his
daughter's school district.

Because the issue is on the minds of a number of school officials
across the state, Johnson said he is proud the small Wahkiakum
district stuck with the case.

"I think the district should be commended for bringing this this
far," Johnson said. "This is where it should be, the state Supreme Court."

Hans York, one of the Wahkiakum parents represented by the ACLU in
the case, acknowledged that there is a drug problem in the Wahkiakum
School District, but he said there are drug problems in every school.

"What about the coaches and the administrators?" he asked. "The job
of the school is to teach the kids values, not police them."