HIGH COURT WEIGHS STUDENT DRUG TESTS

WASHINGTON - A sharply divided Supreme Court appeared Tuesday to lean
toward approving mandatory random drug testing for public school students
who take part in certain extracurricular activities, as the justices heard
arguments in a case that pits a student's privacy concerns against a school
system's tough anti-drug policy.

The case, which originated in a rural Oklahoma school district, has
attracted attention because it may clarify the rules on drug testing for
some 14,700 public school systems around the country.

It comes at a time when a similar case, involving an Oakridge student
athlete, is pending before the Oregon Court of Appeals.

Federal funding is currently available for public school drug-testing,
which has proved popular among parents. But so far the Supreme Court has
specifically approved of testing only in the context of athletics - holding
in 1995 by a 6-3 vote, in another Oregon case, that student athletes may be
required to submit to random tests because of the safety risks of engaging
in sports while on drugs and the already lessened privacy of locker rooms.

The 1995 case involved a student athlete in the Vernonia School District in
northwestern Oregon.

In the current Oregon case, the Oregon Court of Appeals heard arguments
Monday in the case of 17-year-old multisport athlete Ginelle Weber, who has
challenged the Oakridge School District's random drug-testing policy. She
was denied a spot on the volleyball team as a sophomore after refusing to
consent to random drug testing, and has since been banned from other sports
unless she agrees to sign a consent form.

The issue before the U.S. Supreme Court on Tuesday was whether the logic of
the 1995 ruling, which was written by Justice Antonin Scalia, could be
extended to such other competitive extracurricular activities as clubs or
bands.

School authorities in Tecumseh, Okla., announced such a new drug-testing
policy in 1998. Under the policy, students who refuse to take the test, or
test positive more than twice, may be barred from extracurriculars for the
rest of the school year, but don't face prosecution or expulsion.

For the most part, the same justices who voted in the majority in the 1995
case seemed willing to apply it to this one.

Graham Boyd, an American Civil Liberties Union attorney representing
Lindsey Earls, a former Tecumseh high school choir member who sued in
federal court after she was made to provide a urine specimen to teachers,
told the court that the school had no "individualized suspicion" that she
was using drugs.

At that point, Justice Stephen Breyer, who voted in the majority in 1995,
noted that schools plagued by guns have employed metal detectors. "There's
no individualized suspicion there," he said.

Breyer likened drug tests designed to stop drug abuse to "throat swabs" a
school might use to test for contagious disease.

Later, Boyd remarked that it made sense for the court to permit drug
testing for football and other potentially dangerous sports, whereas "here,
you've got choir." Scalia took him to task for seeming to minimize the threat.

"Do you think life and death are not involved in the fight against drugs?"
he asked. Scalia emphasized to Boyd that students are minors, and schools
therefore have special latitude in limiting students' freedom for their own
benefit.

Of those justices who voted for drug testing in 1995, only Justice Ruth
Bader Ginsburg postulated a distinction between this case and that one.

Ginsburg, who wrote a short separate opinion in 1995 indicating that she
voted with the majority on the understanding that the ruling was limited to
athletics, noted that, while athletes are subject to testing right up to
the Olympic level, "everyday people are not."

Justice David Souter, a dissenter in 1995, voiced concern that the school
system's arguments about the need to test students in extracurricular
activities could easily "apply to every child in every school in the United
States."

He pressed a lawyer for the Tecumseh school authorities about the fact that
the school system itself had documented only a minor drug problem in
reports to the federal government - and had only turned up three positive
results after the tests started.

"Your evidentiary problem is that up to the eve of the policy, the reports
are saying everything is fine," Souter told attorney Linda Maria Meoli.

Meoli replied that there were so few positive tests in part because the
testing was interrupted by Earls' lawsuit.

The Bush administration supports the school district. Meoli was joined in
the argument by Deputy Solicitor General Paul Clement, who said drug
testing "still might be appropriate" even if students in extracurricular
activities were less likely to be taking drugs.

But Justice Sandra Day O'Connor called that view "counterintuitive" and
said of the Oklahoma school system's policy "the whole thing is absolutely
odd."

Justice Anthony Kennedy caused a murmur in the courtroom when he posed a
hypothetical case in which a school system maintained one school with drug
testing and another without.

When Boyd said that "presupposes that one (school) would be inferior,"
Kennedy said that no one would prefer "the druggie school" - "except,
perhaps, your client."

Lindsey Earls, now 19 and a student at Dartmouth College, tested negative
for drugs while at Tecumseh.

A decision in the case is likely by July.