TESTING THE LIMITS

Justice Souter takes right stance on student drug testing. As the only
member of the U.S. Supreme Court whose license plate bears the motto "Live
Free or Die," Justice David Souter has better than average respect for
personal liberty. So when the court issues its ruling on the
constitutionality of drug testing for all public school students who
participate in any extracurricular activity, Souter is again likely to be
in the minority

In 1995, he joined Justices John Paul Stevens and Sandra Day O'Connor in
dissent in the Oregon case that found it constitutional to require student
athletes to submit to drug testing. We agreed with the court majority then,
though not without reservations, since the test would be required of people
who had shown absolutely no evidence of wrongdoing. Testing on suspicion in
most circumstances strikes us as an unreasonable search and seizure and
thus unconstitutional under the Fourth Amendment.

Children do enjoy weaker constitutional protections than adults, of course.
But the court made two distinctions in the Oregon case that do not apply in
the Oklahoma case now before it. The Oregon high school had a demonstrable
problem with drug use on campus and among athletes. The Oklahoma school was
relatively drug free. Of 505 students, only three tested positive for an
illicit substance.

In addition, athletes have a greater likelihood than most students of
injuring themselves or others while engaged in their sport. That makes
testing more reasonable in their case. It is a distinction we would apply
to some other activities, a drivers' education class, for example, or a
rock-climbing club. But band or the chess club?

We did urge that New Hampshire schools use great caution in deciding to
test blood or urine samples, and they have done so. About 5 percent of the
nation's 15,000 high schools are estimated to test students, yet only a
handful of New Hampshire schools experimented with the practice and none
currently test, according to the state Department of Education.

In a story in the Sunday Monitor, Hopkinton School Superintendent Richard
Ayers succinctly summed up a major flaw with widespread testing. "Drug
testing deals with an element of distrust," he said. Building a foundation
of trust is crucial both to develop young people as responsible citizens
and to prepare them for lives away from school and home.

We also agree with Souter, who pointed out that participation in
extracurricular activities is not voluntary for students who hope to go to
a competitive college.

In addition, studies show that students who do participate in
extracurricular activities are the least likely to do drugs. That means
it's common sense where testing is in effect that those who test positive
the first time should be required to undergo counseling if they want to
continue participation. Throwing them out of the chorus or theater group
would only leave them with time to spend with a less goal-oriented peer group.

The student in the Oregon case objected to the drug test because he had
given the school no reason to suspect he was taking drugs. In the
dissenting opinion in that case, Justice O'Connor wrote: "It is hard to
think of a manner of explanation that resonates more intensely in our
Fourth Amendment tradition than this."

O'Connor's words themselves resonate now, as the aftermath of Sept. 11
continues to demonstrate that the greatest threats to our constitutional
freedoms come during times of crisis.

There should be no rush to give up liberties, for ourselves or our
children. Broadly testing on suspicion alone violates both the trust placed
in most young people and their rights.