ON STUDENT PRIVACY PROTECTIONS AT SCHOOL

We were reminded last week of the story about a man who wandered around his
New England community banging on a large pot. "Why are you making such a
racket?" his neighbor asked. "To keep the elephants away," the man
explained. "But there aren't any elephants within thousands of miles of
here," the neighbor said. To which the man replied, "See? It's working!"

Everyone agrees that the Tecumseh, Oklahoma, middle and high schools had no
drug problem in 1998, when the school board started requiring all students
involved in competitive extracurricular activities to take random drug
tests. Four years later, only a handful of drug-using students have been
found. So the policy has proven either very effective or ridiculously
unnecessary.

In either case, it is perfectly constitutional, according to a five- member
majority of the U.S. Supreme Court.

Last week, the court ruled that the Tecumseh drug tests do not constitute
an "unreasonable" search under the Fourth Amendment. Writing for the
majority, Justice Clarence Thomas admitted that the school didn't have a
drug problem to start with, but he cited a previous court ruling that "in
certain limited circumstances, the government's need to discover such
latent or hidden conditions, or to prevent their development, is
sufficiently compelling to justify the intrusion on privacy entailed by
conducting ... searches without any measure of individualized suspicion."

In the Tecumseh case, the "certain limited circumstances" involve a school
with no drug problem that might someday develop one. The school's desire to
discourage potential drug use justifies the abrogation of students' Fourth
Amendment rights.

As for the "intrusion on privacy," in Thomas's view it's no big deal.
"Under the policy," he explains, "a faculty monitor waits outside the
closed restroom stall for the student to produce a sample and must 'listen
for the normal sounds of urination in order to guard against tampered
specimens and to insure an accurate chain of custody.' "

Despite the "Law and Order" language of his ruling, Thomas did note that
the Tecumseh policy does not involve calling in the police. Yet the
decision is unclear as to whether involving the police would make drug
tests unconstitutional. And, although Thomas lists the extracurricular
groups to which the Tecumseh policy applies -- "Future Farmers of America,
Future Homemakers of America, band, choir, pom pon, cheerleading" etc. --
his ruling leaves open the question of whether schools could eventually
require that all students be tested for drugs.

The local implications of this decision are minimal. In Jaffrey, the Conant
High School drug-testing policy for student athletes, which was abandoned
in 1997, would now be okay by the U.S. Supreme Court. And it looks as if
Keene High School officials would run into no federal constitutional
problem if they decided to use Breathalyzers to test for alcohol at school
events, as Principal Victor Sokul has been considering.

But New Hampshire citizens enjoy a layer of protection against unreasonable
searches beyond the federal constitution. Part 1, Article 19 of the New
Hampshire Constitution requires individualized suspicion to justify
searches by public authorities. So in 1995, the New Hampshire Supreme Court
ruled that students can't be searched unless school authorities have
reasonable grounds to believe that the search will turn up evidence of
misbehavior. That would seem to rule out blanket or random drug-testing.
And this year the court ruled that schools "should be charged with abiding
by the constitutional protections required in criminal investigations" if
they conduct what amount to criminal investigations. That means school
Breathalyzer results probably can't be used by police for prosecution.

This is a complicated area of public policy, balancing individual rights
against societal well-being. But it's comforting to note that, while the
U.S. Supreme Court has now decided that the Fourth Amendment can be waived
to prevent conceivable but unlikely misconduct by pom- pon girls, New
Hampshire students are probably still "secure in their persons, houses,
papers and effects."