A STUDENT DRUG TESTING DRAGNET?

Line drawing is the art of Fourth Amendment construction. It speaks in
chiaroscuro, not in prime colors. "Unreasonable searches and seizuress" are
prohibited; but no specific clues are provided to demarcate the reasonable
from the unreasonable. It is all a matter of degree. To be weighed are the
urgency of the government's search or seizure justification, its purpose,
and the stigma, humiliation or intrusion on personal intimacies suffered by
the target.

On that score, the Supreme Court's 5-to-4 decision in Board of Education of
Independent School District No. 92 of Pottawtomie County vs. Earls (June
27, 2002) sustaining confidential drug testing of students participating in
extracurricular activities seems unworrisome.

Student drug abuse is widespread. According to the Department of Health and
Human Services, the percentage of high school seniors using any illicit
drug climbed from 48.4 percent in 1995 to 53.9 percent in 2001 and 41.7
percent to 49 percent for marijuana alone. Rural communities evocative of
Norman Rockwell have not escaped the drug- abuse epidemic.

In 1998, the school district responsible for administering Tecumseh, Okla.,
public schools fashioned a student activities drug-testing policy. It
requires consent from middle- and high-school students to testing for
illegal drugs as a condition to participation in any extracurricular
activity. The policy did not promise a miraculous ending or vertical fall
in drug abuse among adolescents. It did, however, aim to dent the problem
by deterring some who craved extracurricular excitements and by cuing
students that drug use was more to be deplored than imitated. Any lessening
of an evil is laudatory, even if greater success would be coveted.

The drug testing policy in Tecumseh was no dragnet for dispatching students
to prison or even school discipline. Access to the test results are denied
law enforcement authorities. The tests occasion no school penalties or
academic demerit. They are separated from a student's educational records
and shared with school personnel only on a case-by-case "need to know" basis.

The stigma or embarrassment risked by a drug-test failure is generally
insubstantial, but not chimerical. For example, if an Ursa Major star
football quarterback suddenly vanished from the roster like the Cheshire
cat, drug use would be the self-evident explanation even to the dullest of
the dull. In the ordinary case, however, the sole loss for testing positive
is nonparticipation in extracurricular endeavors.

And even imposition of that disadvantage bespeaks mildness and
understanding of teen-age rebelliousness.

Under the policy, after an initial positive test, the school arranges a
meeting with a student's parent or guardian. Student extracurricular
participation may continue if within five days of the meeting drug
counseling is undertaken and a second specimen is provided within two
weeks. Even after a second positive, the student receives but a 14-day
suspension from extracurricular programs, plus four hours of drug- abuse
counseling and monthly drug testing.

Only after a third strike do extracurricular privileges cease for the
remainder of the school year or 88 school days, whichever is longer.

The drug testing is minimally intrusive or embarrassing. Urine samples are
routine in normal private doctor health checkups. No obloquy or suspected
depravity is awakened. Under the policy at Tecumseh, a faculty monitor
stands outside a closed restroom stall while the student produces a sample.
The monitor is necessary to prevent tampered specimens and to establish an
accurate chain of custody. The sample is poured into two bottles, sealed,
and placed in a mailing pouch. The entire process from beginning to end
should be untraumatic for the typical student, occasioning no more anxiety
or stress than passing through safety detectors at public buildings or
airports.

Drug abuse endangers a student's personal health and may menace fellow
classmates. Public school authorities are surrogate parents during the
school day, and testing for drugs among extracurricular participants seems
a reasonable exercise of their "in loco parentis" obligations. They might
be civilly liable for negligence for failing to test if a student drug
abuser caused injury to himself or others during athletic competitions or
otherwise.

Detractors of the Earls precedent fret that it creates a slippery slope to
testing all students for illegal drugs in cahoots with state and local
police. A long trail of teen-agers marching to bleak prisons filled with
hardened inmates is portended. But to paraphrase Sam Johnson, slippery
slope arguments are the last refuge of lawyers on the wrong side. They are
as unpersuasive as embracing anarchy because any scheme of government might
descend into Stalinist totalitarianism.

But the chief distinction between civilization and barbarism is knowing
when to stop. The exact point in each case will be tolerably inexact, like
the demarcation between day and night. The small area remaining for dispute
should make any solution reasonably acceptable to the mainstream. Justice
Oliver Wendell Holmes crafted the answer to those who would denounce Earls
as a harbinger of a public school Gestapo in Panhandle Oil Co. vs. Knox (in
1928): "not while this court sits."