PERVERSE DRUG TESTING

High school choirs and chess clubs aren't exactly hotbeds of teen-age junkies.

Nonetheless, Tecumseh High School in Pottawatomie County, Oklahoma
established a policy that students who wanted to participate in
extracurricular activities such as choir must submit to a drug test.

Student Lindsay Earls was forced to take such a test; she found it
accusatory and humiliating even though her test proved negative. She sued
the school board, arguing that the policy intruded on her privacy rights
and amounted under the Fourth Amendment to an unreasonable search. The
nation's high court Thursday ruled that Tecumseh High's policy was
constitutional, a decision that unwisely permits arbitrary and capricious
drug testing.

The issue in this case is not drug testing per se. It's unfortunate but
necessary that drug testing is widely recognized as serving the public's
interest, and that interest outweighs any claim to the right of privacy.

Writing for the five justices in the majority, Clarence Thomas said testing
was an effective means of "addressing the school district's legitimate
concerns in preventing, deterring and detecting drug use."

It is telling that while the district employed testing - the practice was
halted until the disposition of Earls' case - that only three of 505
students tested positive. It's also telling that those three students were
athletes. The court previously ruled that testing student athletes was
constitutional, so knuckle-scrapping jocks aren't the issue here.

Thomas also argued that students "who participate in competitive
extracurricular activities voluntarily subject themselves to many of the
same intrusions on their privacy as do athletes."

But it doesn't necessarily follow that a voluntary intrusion must include a
drug test. If a student acts in a strange manner, has diluted pupils and
slurs his or her words, then school supervisors have good reason to require
a drug test.

But to make the test a condition of participation is, as Justice Ruth Bader
Ginsburg said, "not reasonable, it is capricious, even perverse:
Petitioner's policy targets for testing a student population least likely
to be at risk from illicit drugs and their damaging effects."

The federal 10th Circuit Court of Appeals found in favor of Earls because
the district failed to show that the school had a drug problem for which
testing was the solution. Indeed, the school district could not prove
Tecumseh had even an itty-bitty problem, given its record of three positive
tests among 505 students. That school board isn't just cautious about
drugs; it's paranoiac.

And about half stupid. The district argued that safety was its paramount
interest in requiring the tests. After all, the district said,
extracurricular activities entail dangerous hazards. Future homemakers have
to handle sharp utensils. Future farmers have to mess with large critters.
And band members have to march with heavy tubas. To this argument, Ginsburg
responded:

"Notwithstanding nightmarish images of out-of-control flatware, livestock
run amok, and colliding tubas disturbing the peace and quiet of Tecumseh,
the great majority of students the School District seeks to test in truth
are engaged in activities that are not safety sensitive to an unusual degree."

We live in a time, it seems, of extremes. Greed is so extreme on Wall
Street that we can doubt that we'll ever see the end of it. We have fire,
drought and global warming as rarely, if ever, before. To that, thanks to
the Supreme Court, we now can add state-sanctioned caprice.