THE SUPREME COURT VS. TEENS

Hard-line Judges Are About To Give A Thumbs-Up To Drug Tests In Schools
Across The Nation.

After twenty years of prayer and hard lobbying, drug warriors are on the
verge of succeeding in their effort to institute random drug testing of
high school students. Sometime in June, the Supreme Court is expected to
issue a decision in favor of an Oklahoma school with an aggressive
anti-drug program. The ruling will loosen the standard for acceptable drug
testing of students: About 500 schools currently test kids, most of them
athletes, but soon any students involved in other school activities might
be subject to the involuntary tests, and students and parents will have not
higher authority to whom they can protest.

"I think saying that this ruling applies to the 27 million kids in grades
six to twelve is not an exaggeration, even if the court doesn't go so far
as to say it literally does," say Graham Boyd, the American civil Liberties
Union lawyer who brought the case against Tecumseh High, a tiny school of
600 that conducts random tests on students who participate in clubs. The
ACLU and a school choir member named Lindsay Earls challenged the school's
authority to invade Earls' privacy after she was forced to pee in a cup
while teachers listened outside the bathroom stall.

"Thanks be to almighty God, who has guided us, protected us and comforted
us in this effort," says DeForest Rathbone of the Supreme Court hearing,
which occurred in March. By "us", Rathbone means his group, the National
Institute of Citizen Anti-Drug Policy, and those it is aligned
with including the Drug Free America Foundation, Drug Free Kids, and the
Alcohol and Drug Testing Industry Association which organized the legal
briefs and now have even secured funding to push testing to the front of
the Drug War.

Last year, Rathbone and his allies sneaked a clause into President Bush's
education bill authorizing the government to pay for testing at public
schools. As a result, billions in block grants will soon be available to
schools that want to test. According to Julie Underwood, counsel for the
National School Boards Association, many of her members are just waiting for
the court to give its constitutional green light. Says Rathbone, "People
don't realize how far along we are with this thing. It's a done deal."

None of this would have been conceivable four or five years ago, when
student drug testing was a marginal issue in Washington. But legal and
financial backing has transformed a loser into a political winner.

In the early Eighties, soldiers were the only people in America who were
tested. Gradually, anti-drug groups pushed testing beyond the military and
into civilian and corporate life. In 1987, twenty percent of businesses in
the American Management Association tested their employees, but now, after
a steady campaign supported by the federal government, testing is the norm
in seventy-one percent of its members. Many expect this pattern to repeat
in schools.

If the court's majority holds up Tecumseh as a model, then going to high
school in America will soon be an experience straight out of Orwell's 1984.
At Tecumseh, urine testing is only part of a larger control paradigm that
includes cops at the front door, cameras in the hallways, drug-sniffing
dogs performing locker checks and teachers who are trained to interrogate
suspicious-looking students. Bottom line: 2002 may go down as the year when
the right wing opened a new front in the Drug war.

The irony here is that it was the ACLU that enabled this giant new
opportunity for drug testing. Seven years ago, after the ACLU lost a
Supreme Court case permitting testing of student athletes, the ACLU's Boyd
decided to prepare for the next schools that would push further. "I knew
inevitably this was going to crop up around the courts and end up in the
Supreme Court," he says. "I made a plan, back in '99, to try and bring this
forward and present it in a way that would be favorable to the ACLU."

Eventually he found his "ideal plaintiff," as he puts it, in Lindsay Earls.
She was a choir girl, and a folk singer, pretty in overalls, and Ivy League
material. She didn't do drugs, ever, and was humiliated by the test. When
Boyd met her the first time, she said she was willing to go the long haul
up the court system.

So the ACLU and the school squared off. The ACLU triumphed in appeals
court, but at the Supreme Court hearing in March, several judges openly
mocked Boyd. Glowering down from the bench, Justice Antonin Scalia at one
point chastised him, "What I seem to miss in your argument is any
recognition of the fact that we are dealing with minors," as if Boyd didn't
know his own client's age. Then Scalia demanded, "Do you think life and
death is really not involved the fight against drugs?"

"It absolutely is," Boyd stammered, "and where there's "

"Let's not minimize that," Scalia said, sharply cutting him off.

Boyd recovered and moved on, but the damage was already done. In fact, it
had been done a long time ago, when organizers of the campaign to moderate
harsh drug laws ceded the moral high ground of helping kids. "When you have
kids involved, that's a battlefield that's going to favor conservative,
parent-type groups," says William D. McColl, director of national affairs
for the nation's leading reform group, the Drug Policy Alliance. "We do
much better with adult liberties, where there are infringements with
racially tinged outcomes."

Ultimately, the right wing outwitted the left on this issue by stealing the
left's rhetoric. For years, drug-law reformers have said drugs ought to be
considered a health problem, not a criminal-justice matter. Now the right
is arguing that the constitutionality of testing students turns on whether
drugs are, indeed, conceived of as a health epidemic.

The Drug Free America Foundation, a group that helped underwrite an amicus
brief for Tecumseh, peddles this argument extremely well. Calvina Fay, the
group's executive director, says, "We had an outbreak of head lice in my
daughter's school, and they did a search they didn't ask for my
permission. You were sent home if you had it, and you couldn't come back
until you'd been treated for head lice. I didn't hear any parents screaming
then about privacy rights, and head lice is nowhere the deadly situation
that drugs are."

Indeed, the more drug-law reformers fight student drug testing, the more
they're seen as dopeheads who want to help kids get stoned. So they are
letting the issue slide, rather than waste political capital. "Fighting
school drug testing is like Pickett's charge," says McColl. "You are
standing in withering fire and have to cross a field two miles long." Plus,
he says, "It's not an issue we have activists going out on the street for."

But conceding this battle has left a power vacuum in Washington, which the
anti-drug movement is only too happy to fill: It has already secured
federal funding to cover the expense of testing students. Testing promoters
asked Indiana Republican Rep. Mark Souder to insert a two-line "stealth"
clause in the 700 pages of the president's education bill. The clause, a
darling of drug warriors for nearly ten years, permits schools to tap giant
block grants to pay for their testing programs. It was months before
anybody in the drug reform movement noticed it was there. "We snuck it by
those druggie liberals!" gloats Rathbone.

The next step is testing every student across the board, and President Bush
appears ready to help make it happen. His deputy solicitor general, Paul D.
Clement, who argued a brief on behalf of Tecumseh, said that a school-wide
testing program "would be constitutional." The White House was also willing
to go on the record about its approval of drug testing. "The Bush
administration believes in empowering states and school districts with
flexibility," says spokeswoman Mercy Viana. "[Drug testing] is one of the
several tools available to districts to help make schools safe and drug-free."

With a president willing to support and pay for drug testing in local
schools, and a five-to-four Supreme Court decision in favor of Tecumseh a
near certainty, everybody sees the spread of testing to many of the
nation's 15,000 junior and senior high schools as inevitable.

The only question is how far the Supreme Court will open the door to
mandatory testing for all students. But Rathbone and the other drug
warriors are already looking ahead to the next case. "There's a school down
in Lockney, Texas, that tests every student," Rathbone says. "We have our
eye on it."

[sidebar 1:] DOES TESTING ACTUALLY REDUCE DRUG USE?

In the politically charged debate over drug testing, once fact gets
continually cited to show that testing deters casual drug users, help
addicts and saves everyone else from temptation and peer pressure: After
corporations started drug-testing employees in the mid-Eighties, the number
of positive tests fell. True enough in 1988, when testing was relatively
new, one out of ten workers who were tested turned out to be positive. By
2001, it was one out of twenty workers. The factoid pops up in various
forms in the briefs, Web sties and policy papers of the Drug War, where
it's repeated like a mantra: Testing works. Testing works.

It's a compelling argument but it's wrong. The reason that the number of
positives has declined is that companies changed the way they administered
their tests. Instead of only testing people suspected of drug use, as they
did in the Eighties, firms in the Nineties started testing all employees,
thus expanding the pool of people tested. That diluted the chance of
catching a drug user and automatically lowered the percentage of positives.

Indeed, researchers at the American Management Association studied this
dynamic and reached the same conclusion in an industry report: "As more
workers are tested for reasons other than suspicion, the test-positive
ration falls."

The most authoritative study of testing's efficacy was conducted by the
National Academy of Sciences, the country's leading scientific body. A
panel of NAS scientists examined every piece of known evidence about drug
testing. Their findings, published in 1994, concluded, "There is as yet no
conclusive scientific evidence from properly controlled studies that
employment drug-testing programs widely discourage drug use or encourage
rehabilitation."

[sidebar 2]

HOW TO BEAT THE TEST

Drug-testing companies see the Tecumseh case as opening the door to a
potential windfall of millions of dollars as thousands of schools become
new customers but the tests are surprisingly unreliable: They have a high
false-positive rate, and they can often be outwitted by the test-taker.

Anyone who wants to beat the common urine test has an entire industry ready
to help. Kits with brand names such as Detox, NuKlear Urine Additive and
Zydot Ultimate Blend are sold online. Then there are the dozens of
off-brand herbal formulas, self-test kits, chewable tablets, teas and
ready-to-drink mixes on the market. Finally, the time-tested business of
selling other people's urine continues to thrive, though it's been updated
with the small, concealable Urinator (offered by Cleartest), a
battery-powered device that warms "clean," synthetically created urine.

According to Kevin Zeese, president of Common Sense for Drug Policy, these
products are not necessary to beat the urine test. "What works best is not
giving your first urine of the day," he says. "Second, when you give a
urine sample, do so with a full bladder, after drinking a variety of
fluids. That decreases the percentage of drug metabolites in the urine."
Zeese adds that the dilution method works most of the time for marijuana,
traces of which can remain in the body for weeks and sometimes months,
depending on body-fat levels. Other drugs such as cocaine, Ecstasy and
methamphetamine disappear from the urine twenty-four to forty-eight hours
after consumption.

As for the coming generation of hair tests, which can detect drug
metabolites for months or even a year, Zeese has an even more basic
recommendation: Call a lawyer.