FURTHER CLARITY ON THE TECUMSEH CASE

THREE weeks after the U.S. Supreme Court upheld the constitutionality of a
drug testing policy established by the public schools of Tecumseh, some
degree of confusion remains about the ruling. There's no confusion in
Tecumseh, however, where the board of education Monday night voted
unanimously to re-establish the policy. It had been put on hold after the
10th U.S. Circuit Court of Appeals in Denver found it unconstitutional last
year. Other districts may now reasonably look to the Tecumseh program as a
constitutionally valid model for their own programs, so the details are
important.

The latest issue of Oklahoma School Board Journal, published by the state
school boards association, includes legal clerk Dawn Brockman's fine sketch
of central findings in Justice Clarence Thomas' majority opinion.

As noted in Brockman's summary, the court agreed with critics of the
Tecumseh policy that students have rights of privacy, and that the policy's
implementation might be a "search" under the Fourth Amendment to the
Constitution. But "central to the reasonableness of the search is the fact
that the subjects of the policy are children who have been committed to the
temporary custody of the state as schoolmaster." Concerns about
"discipline, health and safety" allow schools to put limits on privacy rights.

Youngsters who participate in extracurricular activities "already have less
expectation of privacy than the general population," Brockman reports. And,
"Regulation of the extracurricular activities by statewide entities further
diminished the expectation of privacy. The court found this to be
comparable to adults who choose to participate in a closely regulated
industry and come to expect intrusions on normal rights."

The test is carried out with respect for the personal privacy of students,
and there were "no academic consequences for positive results, nor were the
results turned over to law enforcement, nor were they used as a cause for
discipline." A positive test limits a student's access to extracurricular
programs and can lead to "substance abuse counseling."

The court found that Tecumseh's approach avoided unfair stereotyping of
certain groups, and amounted to "a reasonably effective means of addressing
the school district's legitimate concerns in preventing, deterring and
detecting drug use."

A final note of our own: While school districts can have such policies,
nothing in the decision requires them. In this respect, the ruling simply
respects local and state prerogatives. As the court stated, "Without first
establishing discipline and maintaining order, teachers cannot begin to
educate their students."

With the 5-4 decision, Thomas and his colleagues have given public school
districts strong options for tackling illegal drug abuse.