RANDOM INDIGNITIES

Drug Testing For Everybody!

In 1989 the U.S. Supreme Court upheld a drug-test requirement for anyone
seeking a Customs Service position in which he would have to carry a gun,
handle classified material or participate in drug interdiction. Justice
Antonin Scalia dissented, calling the testing program an "immolation of
privacy and human dignity in symbolic opposition to drug use."

Scalia noted that the Customs Service policy required people to perform "an
excretory function traditionally shielded by great privacy" while a monitor
stood by, listening for "the normal sounds," after which "the excretion so
produced (would) be turned over to the Government for chemical analysis."
He deemed this "a type of search particularly destructive of privacy and
offensive to personal dignity."

Six years later, Scalia considered a case involving much the same
procedure, this time imposed on randomly selected public school athletes.
Writing for the majority, he said "the privacy interests compromised by the
process of obtaining the urine sample are in our view negligible."

Not surprisingly, given its estimate of the stakes involved, the Court
found that random drug testing of student athletes did not violate the
Fourth Amendment's prohibition of "unreasonable searches and seizures." Now
it seems poised to allow random testing of students who participate in any
sort of competitive extracurricular activity, including debate, band,
choir, cooking and Future Farmers of America.

The drug-testing program at Oklahoma's Tecumseh High School, which a
federal appeals court overturned last year, treats those activities the
same as football, basketball and wrestling. And under the logic the Court
has been urged to accept in this case, public schools could force all
students to demonstrate the purity of their bodily fluids by peeing into
cups on demand.

"If your argument is good for this case," Justice David Souter told the
Tecumseh Public School District's lawyer during oral arguments the other
day, "then your argument is a fortiori good for testing everyone in
school." Siding with the school district on behalf of the Bush
administration, Deputy Solicitor General Paul Clement agreed, arguing that
random testing of all students would be constitutional.

Scalia, who considered a much more limited testing program at the Customs
Service an affront to privacy and human dignity, did not seem troubled by
that suggestion. "What I miss in your argument," Scalia told an attorney
challenging Tecumseh's drug tests, "is any recognition that you're dealing
with minors."

It's unlikely that Scalia thinks the average teenager is less easily
embarrassed than the average customs agent. Rather, he was referring to the
authority that schools traditionally have over students. The school
district, he said, "is trying to train and raise these young people to be
responsible adults."

While teenagers in school are properly subject to special restrictions,
that does not mean they have no rights, and it's hard to see how
suspicionless searches prepare them to be responsible adults (or
self-respecting citizens). In any case, it is emphatically not the job of
government to "raise these young people." That is the job of parents, many
of whom, like the parents who are challenging Tecumseh's policy, object to
the seizure of their children and the search of their urine.

The violation of privacy and the usurpation of parental authority are
especially troubling because there is scant evidence of a serious drug
problem at Tecumseh High School. Before drug testing began in 1998, there
were little more than a few scattered suspicions. Since then, less than 1
percent of the students subject to urinalysis have tested positive. Even if
drug abuse were rampant at Tecumseh, there is no reason to believe that
testing chess players and cheerleaders would be an effective response.

The Bush administration argues that a school should not have to demonstrate
a problem before implementing random testing. "The government has a
compelling interest in preventing the spread of this 'pervasive social
problem,' " says Solicitor General Theodore Olson.

But the abuse of illegal drugs can be considered "pervasive" only if it's
defined very loosely. Half of high school seniors have tried marijuana, for
instance, but only a small percentage of them get into serious trouble as a
result.

This is not because there are no hazards involved but because most
teenagers who smoke pot (by far the most popular illegal drug) do so
experimentally or occasionally. The unremarkable consequences of such
limited use are apparent from the fact that schools generally cannot
identify drug users without looking at their urine.