JUSTICES ALLOW SCHOOLS WIDER USE OF RANDOM DRUG TESTS FOR PUPILS

WASHINGTON, June 27 - The Supreme Court today upheld the widespread use of
random drug testing of public school students in a significant expansion of
an earlier ruling that endorsed drug testing for student athletes.

The 5-to-4 decision upheld a program in a rural Oklahoma district that
required students engaged in "competitive" extracurricular activities, a
category that includes the future homemakers' club, the cheerleading squad
and the choir, to submit to random drug testing.

In emphasizing the "custodial responsibilities" of a public school system
toward its students, rather than the details of how the program was
organized, the majority opinion by Justice Clarence Thomas appeared to
encompass random drug testing of an entire student population.

But one member of the majority, Justice Stephen G. Breyer, who wrote a
concurring opinion while also signing Justice Thomas's, said it was
significant that the program in the Tecumseh, Okla., school district
"preserves an option for a conscientious objector" by limiting the scope to
students in extracurricular activities. A student "can refuse testing while
paying a price (nonparticipation) that is serious, but less severe than
expulsion," Justice Breyer said.

Students who are found to be using drugs at Tecumseh High School are barred
from their activities and referred for counseling, but are not otherwise
disciplined or reported to the police. The policy was challenged by Lindsay
Earls, an honor student active in several activities who is now attending
Dartmouth College.

Ms. Earls lost her case in federal district court in Oklahoma City but won
last year in the United States Court of Appeals for the 10th Circuit, in
Denver. That court examined the Supreme Court's 1995 ruling in Vernonia
School District v. Acton and said that the athletes-only precedent did not
validate the broader Tecumseh policy. The Tecumseh program violated the
Fourth Amendment's prohibition against unreasonable searches, the appeals
court ruled.

In his opinion overturning that decision today, Justice Thomas said the
Tecumseh program was "entirely reasonable" in light of the "nationwide
epidemic of drug use" among school-age children. While the Tecumseh
district did not now appear to have a serious problem, he said, "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."

The decision, Board of Education v. Earls, No. 01-332, was joined by Chief
Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M.
Kennedy as well as Justice Breyer. The dissenters were Justices Sandra Day
O'Connor, John Paul Stevens, and David H. Souter, all of whom were in the
minority in the court's athletes-only ruling in 1995, and Ruth Bader
Ginsburg, who had concurred in the earlier decision. In a dissenting
opinion today, which the other three dissenters joined, Justice Ginsburg
said the two cases were significantly different.

In the first, she said, the court "concluded that a public school district
facing a disruptive and explosive drug abuse problem sparked by members of
its athletic teams had 'special needs' that justified suspicionless testing
of district athletes as a condition of their athletic participation." But
she said the 1995 opinion "cannot be read to endorse invasive and
suspicionless drug testing of all students."

Had the court in the Vernonia case "agreed that public school attendance,
in and of itself, permitted the state to test each student's blood or urine
for drugs," she continued, "the opinion in Vernonia could have saved many
words."

Justice Thomas said in the majority opinion that the differences in the two
cases were "not essential." The earlier decision did not depend on the
program's details but on "the school's custodial responsibility and
authority," he said.

Justice Thomas added that it would not necessarily be less intrusive to
require that drug testing be based on suspicions of particular students.
That approach "might unfairly target members of unpopular groups" and place
added burdens, including fear of lawsuits, on teachers and administrators,
he said.

In another decision on the final day of its term, the court ruled that
prison guards in Alabama were not entitled to immunity in a suit brought by
an inmate whom they had handcuffed to a hitching post in the hot sun as
punishment for disruptive conduct.

The incident occurred in 1995, by which time Alabama was the only state
that used this method of restraint for prisoners. The United States Court
of Appeals for the 11th Circuit, in Atlanta, ruled that the prisoner's
treatment amounted to cruel and unusual punishment, in violation of the
Eighth Amendment.

But the appeals court said the guards were immune from liability because in
1995, no cases dealing with "materially similar facts" had made clear the
unconstitutionality of the treatment. The question for the court today in
Hope v. Pelzer, No. 01-309, was whether this was the correct approach to
what is known as qualified immunity.

By a 6-to-3 vote, the court overturned the appeals court and said it had
used too narrow a standard. Justice Stevens said for the majority that the
correct question was whether the "state of the law in 1995" gave "fair
warning" to prison guards that they could not treat a prisoner in this
manner. Based on the "obvious cruelty inherent," Justice Stevens said, the
answer was yes.

Justice Thomas filed a dissenting opinion, joined by Chief Justice
Rehnquist and Justice Scalia. The dissenters said reasonable prison guards
in 1995 would not have been on notice that their conduct was unconstitutional.

In a web-exclusive column, Linda Greenhouse answers readers' questions on
Supreme Court rules and procedure. E-mail Ms. Greenhouse a question at
scotuswb@nytimes.com. Please include your name, address and daytime
telephone number; upon request names may be withheld.