WEST SIDE STORY: TAKING THE DRUG WAR INTO THE BATHROOM

The last week of June, the Supreme Court handed down a decision that should
have parents and students outraged. In a 5-4 decision, the high court ruled
that students involved in competitive extracurricular activities, such as
choir, band, cheerleading or chess club, could be randomly tested for
drugs. The court said that the school's interest in preventing students
from using drugs outweighs their right to privacy.

This ruling should make us very afraid, and with good reason.

The case was brought before the Supreme Court on behalf of student Lindsay
Earls, a member of the National Honor Society, Academic Team, show choir
and marching band who describes herself as a "goody two- shoes." Lindsay
was tested for drug use under the school's policy because she took part in
those extracurricular activities. The outcome was negative and there was no
reason to believe she was using drugs in the first place. She took the
Pottawatomie County, Okla., school district to court, maintaining that, not
only was the testing humiliating and accusatory, but unconstitutional and
an invasion of privacy.

The Supreme Court based much of its decision on a prior opinion, Vernonia
School District v. Acton in which it upheld the suspicionless testing of
athletes. In that decision, the court cited the district's history of drug
abuse starting in 1970 and added, "It can scarcely be disputed that the
drug problem among the student body is effectively addressed by making sure
that the large number of students participating in competitive
extracurricular activities do not use drugs."

Also in the Vernonia decision, the court outlined the testing process,
noting that urination is a "function traditionally shielded by great
privacy," but that the degree of intrusion on one's privacy depended on the
manner in which the urine sample was taken.

District policy called for a faculty member to stand outside the closed
restroom stall and listen for "normal sounds of urination" while the
student produced the sample. Ironically, after the student urinated into
the bottle, he or she must sign a consent form. (The court does not say
what happens if the student refuses to sign but, presumably, he or she is
banned from participating in extracurricular activities.) This method of
collection, the court says, constitutes a "negligible intrusion" and
concludes that the invasion of a student's privacy is "not significant."

Justice Kennedy's slam at Earls during the hearing should also raise a flag
and make people question the clarity and objectivity of the justice's
thought process. The justice told Earls' lawyer that he envisioned a
district with two types of schools, one that tests for drugs and the other
a "druggie school," a school that no parent would send their child to,
"except maybe your client." Considering Earls' record as an outstanding and
involved student and the fact that results of her drug test were negative,
his remark is so bizarre as to be irrational.

Even putting Kennedy's diatribe aside, the thinking behind the opinion is
so illogical, so wrongheaded, it's hard to know where to start refuting it.

First of all, Earls was the type of student least likely to engage in
drugs. Justice Ruth Bader Ginsburg, who sounded the voice of reason and
with whom justices O'Connor, Stevens and Souter sided, in her dissenting
opinion says "Nationwide, students who participate in extracurricular
activities are significantly less likely to develop substance abuse
problems than their less-involved peers." In fact, she says, the policy
invades the privacy of students who need deterrence least, and risks
steering kids who might be at risk away from activities that may prevent
them from using drugs.

Not only is Ginsburg correct, but studies also show that drug testing does
not prevent drug use. Instead, students faced with the chance of drug
testing at school change their drug-taking habits. So instead of using
marijuana, generally considered a less harmful drug but which stays longer
in the body, students instead turn to cocaine or other drugs known to be
eliminated faster from the body, or alcohol, which is also eliminated by
the end of a weekend.

Random drug testing of students is against the key tenet of American
justice. Testing students in such a random and capricious manner sends the
message that they are guilty until proven innocent.

The court is also wrong about its stance that drug-testing is "negligible
intrusion" on privacy. If an adult were in a public bathroom and another
person stood outside the door listening, would the person in the stall
consider the intrusion "negligible"? Actually, it's considered perverse.

If anything, teens are more sensitive than adults about their bodies and
bodily functions.

And that doesn't even delve into the idea of how teachers feel about having
to stand outside the stall listening to "normal sounds of urination" from
an honor society student or band or choir member. Teachers are already
expected to act as fund-raisers, bus monitors, nurses, nannies, and, oh
yeah, by the way, teach. Now they're being asked to listen outside the door
while a student pees.

Perhaps the biggest irony of the court's opinion is that it acknowledges
that testing has not decreased the use of drugs. In its opinion, the court
says, "The drug abuse problem among our Nation's youth has hardly abated
since Vernonia was decided in 1995. In fact, evidence suggests that it has
only grown worse." In essence, they admit the Vernonia ruling that allows
suspicionless testing of athletes doesn't work. It is illogical then to
extend the Vernonia ruling to incorporate non-athletes.

What's next? Testing all students? As Earls' attorney Graham Boyd points
out in a Salon interview: "When the Supreme Court rules, it often remains
precedent for a generation at least. And they've now set the bar very low
for intrusions on student privacy in the name of the war on drugs."

Drug abuse is a problem, there is no doubt. But shoving aside the right to
privacy and inflicting a humiliating procedure randomly upon innocent
students will never prevent drug abuse. Instead, random drug testing
fosters secrecy and mistrust of school and authority figures.

Boyd also noted, "For every student who is drug-tested, for every student
who has to prove her innocence by passing a drug test, you'll have one more
student that questions the drug war."

As a parent of a high school student, I see the ruling as a gross invasion
of privacy with no benefits.

In fact, it is obscene.