A PECULIAR POLICY ON STUDENT DRUG TESTING

Seven years ago, the Supreme Court upheld a school district's policy of
randomly testing student athletes for drug use. Last week, the court went a
step further, affirming that a school district may -- consistent with the
Fourth Amendment's ban on unreasonable searches -- require drug tests of
students who are involved in extracurricular activities other than sports.

The issue split the court by a 5-to-4 vote, but in light of the court's
prior ruling, any other holding would have made little sense.

If schools may require drug testing of students, it shouldn't matter
whether the students are football players or members of the band. The real
question is whether the court is on solid ground in affirming any testing
in the absence of individualized suspicion that a student may be using drugs.

Our sense is that the court is correct to give localities leeway in
addressing drug problems in schools.

As Justice Clarence Thomas noted for the court, the testing program is not
designed to punish students, and test results are not referred to law
enforcement. Rather, the program is meant to be therapeutic. Students who
flunk drug tests are encouraged to seek counseling. The only threat hanging
over students' heads is that their participation in extracurricular
activities may be suspended briefly after a second failed test or for the
rest of the school year after a third.

Whether such a program is a good idea is a subject of reasonable debate;
you'd hope no district would adopt it without careful thought, a pressing
need and a guarantee that it would not be applied in a discriminatory fashion.

But those do seem questions best left to local officials, not the Supreme
Court.

The real peculiarity of the policy the court affirmed -- which was adopted
by a school district in Tecumseh, Okla. -- is that it is limited to those
students who participate in extracurricular activities. Justice Stephen
Breyer, in a concurring opinion, implies that the policy is bolstered
constitutionally because it "avoids subjecting the entire school to
testing" and thus "preserves an option for a conscientious objector" --
that option being to decline the test and quit the extracurricular activity.

But this out also creates a perverse incentive structure under which
students who wish to avoid having their drug use detected merely drop out
of band or the chess club and become harder to reach.

Just as it makes no sense to distinguish between athletes and cheerleaders,
the logic of the court's opinion -- that a minimal privacy invasion for the
limited purpose of identifying children who need help -- raises the
question of why a school should focus only on those engaged in
extracurricular programs.