STRANGE THINKING

THE NEED for public schools to keep drugs off their campuses trumps the
privacy rights of students in the drama club, or so the U.S. Supreme Court
has ruled. The justices, 5 to 4, decided that drug tests were permissible
as a condition for participating in any extracurricular activities that
involve interscholastic competition. That's things like band, chorus,
debate teams, theater, the Future Homemakers of America and so forth.
Student athletes were already subject to such tests because of an earlier
court ruling. However, in this decision the justices have apparently kept
intact the privacy rights of students who don't participate in anything or
at least nothing involving any competitive aspects. That's actually a
pretty weird decision and even weirder result. Perhaps half the student
body will be liable to be tested at any time while to do the same to the
other half would remain unconstitutional.

IT GETS ODDER still, for two of the justices in the majority actually
avoided passing judgment on the Pottawatomie County, Okla., school policy
that triggered this case. That school, by the way, tested 505 students and
had only three positive results (all involving athletes). Justice Clarence
Thomas, who wrote the majority opinion, and Justice Stephen Breyer, in a
concurring opinion, both limited their reasoning to the motive involved -
schools keeping bad things from happening - and not to the actual policy.
It is a policy that Justice Ruth Bader Ginsburg, in dissent, branded "not
reasonable ... capricious, even perverse" while noting the school district
could not even show it had a drug problem on campus. She also made the
rather obvious point that school officials were thus going after the
students actually least likely to be using drugs. This is a case where the
court may have stumbled by seeking to address a social condition instead of
the law. If the court had said any student could be tested it would
probably have won more popular support, even though there are some very
troublesome legal niceties involved in that approach. The concept that just
by sending a child to school a parent has granted tacit approval for that
child to be tested for drugs is a tough one to defend, particularly in a
society that has laws putting parents in a heap of hurt if they don't send
their children to school.

THAT'S WHY the majority came up with thinking that "testing students who
participate in extracurricular activities is a reasonably effective means
of addressing the school district's legitimate concerns in preventing,
deterring and detecting drug use." In other words, only students who want
something more from school than an education, who want the privilege of
participating in something extra, open themselves up to mandatory drug
testing. This slides past the element of coercion because students now
would willingly opt for drug testing by signing up for band. No doubt other
school districts will now imitate this Oklahoma practice. If they do, one
predictable result will be that the drug problems, if any, will remain
largely untouched and undetected. At the same time, as Justice Ginsberg
warned, by using a quotation directly from a 1943 Supreme Court decision,
there is a need for "scrupulous protection of constitutional freedoms of
the individual if we are not to strangle the free mind at its source and
teach youth to discount important principles of our government as mere
platitudes."

THE PENDING PLATITUDE to which she refers is the Fourth Amendment to the
Constitution that bars any citizen from being subject to an unreasonable
search and seizure. It is a real stretch of the legal imagination to equate
the desire to play a trumpet or sing in the chorus as being a "reasonable"
cause for a citizen to be seized and have their bodily fluids searched.