APPLAUDING TECUMSEH BOARD'S COURAGE, ANTI-DRUG POLICY

In the historic case sketched as School District 92 of Pottawatomie County
vs. Earls, the majority opinion of U.S. Supreme Court Justice Clarence
Thomas serves as a four-square endorsement of sensible local policies to
combat the scourge of illegal drug use among young people.

While in no way a mandate for any particular policy or program, the opinion
makes it clear that a majority of the present Supreme Court will allow
boards of education to craft policies to prevent widespread drug usage
among youngsters who are involved in school-sponsored activities. Previous
news reports sketched the guts of the high court's analysis.

A reading of his opinion brings out the underlying constitutional and
precedential basis for the result.

Thomas insisted that "Because this policy reasonably serves the school
district's important interest in detecting and preventing drug use among
its students, we hold that it is constitutional."

The policy does not apply to all students, but only to those wanting to
participate in groups such as "the Academic Team, Future Farmers of
America, Future Homemakers of America, band, choir, pom pon, cheerleading
and athletics." Such "students are required to take a drug test before
participating in an extracurricular activity, must submit to random drug
testing while participating in that activity, and must agree to be tested
at any time upon reasonable suspicion."

Opponents, as Thomas summarized, had alleged that Tecumseh's practice
"violates the Fourth Amendment as incorporated by the 14th Amendment." In a
practical and humane examination, however, Thomas argued in ways that might
be taken as a modest, if indirect, affirmation of the 10th Amendment's
protection of the power of states and localities to run their own affairs.

The 10th U.S. Circuit Court of Appeals in Denver had, in reversing trial
Judge David Russell's original affirmation of the policy of the district
based in Tecumseh contended that before establishing a drug testing
program, a school would have to show that "some identifiable drug abuse
problem" already existed.

Thomas slapped down that "wait until there's a crisis" reasoning.

He said, "The need to prevent and deter the substantial harm of childhood
drug use provides the necessary immediacy for a school testing policy.
Indeed, it would make little sense to require a school district to wait for
a substantial portion of its students to begin using drugs before it was
allowed to institute a drug testing program designed to deter drug use.

"Given the nationwide epidemic of drug use, and the evidence of increased
drug use in Tecumseh schools, it was entirely reasonable for the school
district to enact this particular drug testing policy.

We reject the court of appeals' novel test that 'any district seeking to
impose a random suspicionless drug testing policy as a condition to
participation in a school activity must demonstrate that there is some
identifiable drug abuse problem among a sufficient number of those subject
to the testing, such that testing that group of students will actually
redress its drug problem.' ... Among other problems, it would be difficult
to administer such a test. As we cannot articulate a threshold level of
drug use that would suffice to justify a drug testing program for
schoolchildren, we refuse to fashion what would in effect be a
constitutional quantum of drug use necessary to show a 'drug problem.' "

Tecumseh's approach, with its focus on students desiring to participate in
special activities, was also general enough to avoid unreasonable impact on
unpopular individuals or groups.

As Thomas wrote, past precedents "did not require the school to test the
group of students most likely to use drugs, but rather considered the
constitutionality of the program in the context of the public school's
custodial responsibilities." In upholding this policy, "we express no
opinion as to its wisdom.

Rather, we hold only that Tecumseh's policy is a reasonable means of
preventing and deterring drug use among its schoolchildren."

In reaching a majority of the closely divided court, Oklahoma City attorney
Linda Meoli of the Center for Education Law deftly anticipated the possible
defection of one of the court's conservative justices (Sandra Day
O'Connor). Meoli's legal brief for the school district obviously persuaded
Justice Stephen Breyer, usually on the liberal end of the spectrum, to join
Thomas and Justices Antonin Scalia and Anthony Kennedy -- as well as Chief
Justice William Rehnquist -- to form 5-4 support of the policy's
constitutionality.

Breyer wrote a separate concurring opinion that defended the policy on less
lofty but still laudable grounds: "It offers the adolescent a
nonthreatening reason to decline his friend's drug-use invitations, namely,
that he intends to play baseball, participate in debate, join the band, or
engage in any one of half a dozen useful, interesting, and important
activities." Breyer said, "I cannot know whether the ... program will work.
But, in my view, the Constitution does not prohibit the effort."

Thus, the Tecumseh Board of Education's courageous and difficult decision
to fight for its prerogatives all the way to the nation's highest court
brought constitutional support for direct and meaningful efforts to combat
illegal drugs.

Given the sometimes silly pronouncements of America's contemporary federal
judiciary, this laudable outcome should be widely applauded.