DRUG TESTS BACKED FOR BROADER POOL OF STUDENTS

Justices Approve Monitoring Of Participants In All Extracurricular
Activities, Not Just Athletics

The Supreme Court gave its approval yesterday to the random drug testing of
public high school students in extracurricular activities, a ruling that
increases the tools available to some 14,700 public school systems to fight
illegal drug use.

By a vote of 5 to 4, the court ruled that local school officials'
responsibility for the health and safety of their students can outweigh
those students' concerns about privacy. Therefore, mandatory drug testing
of students in activities such as band, Future Farmers of America and chess
does not violate the constitutional prohibition on "unreasonable" searches,
the court said.

The court had already authorized mandatory random drug testing for
student-athletes in a 1995 case that noted the special safety risks and
lower expectation of privacy inherent in sports, as well as the fact that
athletes are role models for other students.

But, writing for the majority yesterday, Justice Clarence Thomas made clear
the court had a much broader rationale in mind -- the schools'
quasi-parental role with regard to their young charges.

"A student's privacy interest is limited in a public school environment
where the state is responsible for maintaining discipline, health and
safety," Thomas wrote. "Schoolchildren are routinely required to submit to
physical examinations and vaccinations against disease. Securing order in
the school environment sometimes requires that students be subjected to
greater controls than those appropriate for adults."

Given that, under the Tecumseh, Okla., policy at issue yesterday, students
can neither be prosecuted nor expelled from school, Thomas wrote, the
privacy invasion is "not significant," whereas "the nationwide drug
epidemic makes the war against drugs a pressing concern in every school."

Thomas was joined by Chief Justice William H. Rehnquist and Justices
Antonin Scalia, Anthony M. Kennedy and Stephen G. Breyer.

The decision could encourage more school districts to try policies similar
to the one in rural Tecumseh, which school authorities instituted in 1998.
Under that policy, students who refuse to take the test, or test positive
more than twice, face banishment from extracurricular activities for the
rest of the school year.

Lindsey Earls, a former student at Tecumseh High School who is now an
undergraduate at Dartmouth College, had challenged the policy in federal
court, saying that her constitutional rights were violated when, as a
condition of participating in a competitive singing group, teachers
required her to urinate into a cup while they listened nearby to prevent
cheating.

A federal judge in Oklahoma sided with the school authorities, but the
Denver-based U.S. Court of Appeals for the 10th Circuit agreed with Earls,
who was aided in the case by lawyers from the American Civil Liberties Union.

Testing students for drug use is popular among parents in many school
districts, and, under legislation signed by President Bush last year, $472
million in federal funding is available to pay for it.

A leading congressional proponent of school drug testing predicted that
school districts will see the court's ruling as a "green light."

"Until today, the ACLU has been able to hold out the threat of a lawsuit
and scare school boards out of implementing drug testing," Rep. John E.
Peterson (R-Pa.) said. "With this Supreme Court decision, and with funding
now available to schools, . . . school boards across the country can begin
to make our schools safer for every child."

"We need to see positive results from increased testing and then move
forward on it," he added.

But others suggested the impact could be limited, noting that only a few
school districts have taken advantage of the authority they already have to
test athletes and that federal support can only partially offset the high
cost of testing.

"The authority is now there to go beyond simply athletes and extend testing
to all students in extracurriculars," said Edwin Darden, senior staff
attorney for the National School Boards Association, which supported the
Tecumseh school board. "The likelihood is that some will use it. But it's
not going to be a huge shift."

In dissent, Justice Ruth Bader Ginsburg, joined by Justices John Paul
Stevens, Sandra Day O'Connor and David H. Souter, wrote that "the
particular testing program upheld today is not reasonable, it is
capricious, even perverse: [It] targets for testing a student population
least likely to be at risk for illicit drugs and their damaging effects."

Ginsburg had joined the court's 1995 decision allowing drug testing of
athletes, but she wrote yesterday that she viewed the earlier case as
premised on its special circumstances, such as the danger of playing sports
under the influence of drugs and the pervasiveness of the drug problem in a
specific school.

In the Tecumseh school, by contrast, Ginsburg wrote, officials had reported
to the federal government that their drug problem was "not . . . major" and
the extracurricular activities were not especially risky, "notwithstanding
nightmarish images of out-of-control flatware, livestock run amok, and
colliding tubas."

Indeed, she wrote, wholesome extracurricular activities help keep students
off drugs, yet the testing policy could deter students from participating
in them. That observation echoed a point made in a friend-of-the-court
brief by the American Academy of Pediatrics.

The case is Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls, No. 01-332.