HIGH COURT TOLD DRUG TESTS REASONABLE FOR ALL STUDENTS

A top government lawyer yesterday backed an Oklahoma school district's drug
testing of high school pompom squads, chess teams and choirs by telling the
Supreme Court it would be constitutional to test all students for drug use.

That assertion -- carefully planned in case the question was asked -- went
far beyond the case before the justices and represented a vastly broadened
official view of "reasonableness" in searching high school students.

Deputy Solicitor General Paul D. Clement suggested the entire student body
could be tested if a problem is suspected -- not just athletes as current
rulings permit, or pupils in voluntary extracurricular programs as
Oklahoma's Pottawatomie County Board of Education requires.

"We're not saying this is constitutional because it's consensual," he said.

Recalling that urine testing was approved in 1989 for U.S. Customs agents
because they face extraordinary temptation on the drug war "front lines"
from the supply side, Mr. Clement said, "Children today are on the front
lines of the drug problem on the demand side."

The American Civil Liberties Union said Tecumseh High School's random drug
testing of students involved in extracurricular activities violates the
Constitution's guarantee against unreasonable searches or seizures. It is
backing two students who sued the school system.

The court appeared sharply divided over the relative importance of the drug
threat versus sacrificed civil liberties.

School board lawyer Linda M. Meoli said Tecumseh's program falls within
boundaries the court set in its landmark 1995 Vernonia decision, allowing
sports teams to be tested because of injury risks and discipline problems
with team members.

"I don't see how you don't lose," Justice David H. Souter told Miss Meoli
when he cited official reports before 1998 that found no such problems.

"Were they lying?" he asked, saying only three of 505 students tested
positive since then, all athletes.

"The existence of the policy might be expected to deter drug use," observed
Chief Justice William H. Rehnquist.

"We'll never know, will we?" Justice Souter responded.

Justice Ruth Bader Ginsburg was troubled by the logic of testing eager and
law-abiding students whose extracurricular activities include band and
Future Farmers of America -- "a group that is less of a problem than the
rest of the students who are idle."

Graham A. Boyd, an American Civil Liberties Union lawyer from New Haven,
Conn., said the line must be drawn at "individualized reasonable suspicion."

"There's nothing about the band or the choir that is dangerous," Mr. Boyd
said, recalling that the prospect of death figured in previous
drug-screening decisions, drawing a quick retort from Justice Antonin Scalia.

"You think life and death is not at issue in the fight against drugs? ...
How about death from an overdose?" Justice Scalia asked.

A congressman seated alone in the front row had no misgivings about
suggestions that all students be tested.

"It's the only thing that works. It's the only thing that worked in the
military," said John E. Peterson, Pennsylvania Republican and member of the
Speaker's Task Force for a Drug-Free America. The task force supports a
bill to let the government pay for drug tests.

Miss Meoli, of Oklahoma City, said one factor blocking wider testing is the
constitutional view that students must attend school so searching as a
condition of admission would be involuntary.

"If we could fashion a way to do it, I believe a majority of the school
boards would be behind it," she conceded.

In its written brief -- whose signers include Mr. Clement and Solicitor
General Theodore Olson -- the Bush administration asked the court to "leave
schools flexibility to adopt reasonable measures, like the policy in this
case, to prevent illicit drugs from gaining a stronger hold on their
communities, and protect school children from the life-altering perils of
drug use."

But it was learned that officials believe schoolwide testing would be
defensible before the Supreme Court.

Justice Anthony M. Kennedy argued for giving school boards more latitude in
deciding when drug testing is needed and not shutting down testing because
few positive results are found.