JUSTICES MAY FAVOR WIDER DRUG TESTING OF STUDENTS

Okla. School Case Rouses Intense Debate

WASHINGTON - Several Supreme Court justices embraced the idea of random
drug tests for students involved in after-school activities ranging from
band to chess club, a major step toward allowing drug testing for all students.

A lawyer for a rural Oklahoma school district argued Tuesday that random
drug tests for some students was a reasonable response to a general problem
of drug use among young people.

If the court agrees, it would allow far broader scrutiny of the majority of
the nation's 24 million high school students who participate in
extracurricular activities.

"Do you think any school in the United States does not have a drug
problem?" Justice Antonin Scalia asked rhetorically at one point.

"The danger is getting kids used to the drug culture," he said. "They're
forming their habits for the rest of their lives."

The court has already ruled that schools may test athletes for drugs. That
1995 ruling made an exception to the general rule that authorities must
have some specific reason to suspect wrongdoing before targeting someone
for search.

The court found that the school in the first 1995 case had a widespread
drug problem, and student athletes were among the users. Students who
routinely strip naked in a locker room have a lower expectation of privacy
than other students, the court reasoned then. Students who used drugs while
playing vigorous sports could also be a danger to themselves or others, the
court said.

Justice Stephen Breyer suggested the Oklahoma school district took the
logical next step in light of the earlier ruling. Breyer voted with the
majority to approve athlete testing, and he noted on Tuesday, "It's hard
for me to see if I came out one way (then) I'd come out different here."

The court's ruling in the current case, expected by summer, should fill in
a major question left from the 1995 ruling: whether the factors that made
drug testing acceptable for athletes apply to other after-school
activities, or even students at large.

Wider drug testing remains relatively rare among the nation's 15,500 public
school districts. Lower courts have reached differing conclusions about the
practice.

Some members of the Tecumseh, Okla., school board wanted to test all
students, but lawyers advised limiting tests to students involved in
competitive after-school activities on the theory that they, like athletes,
had opened themselves to greater scrutiny than had students at large.

The Bush administration is backing the school district, as is a long list
of organizations including the Drug-Free Schools Coalition and the National
School Boards Association.

"I think this is a deterrent," argued school district lawyer Linda Meoli.
"If they want to audition or go out for one of these competitive
activities, they know" drug testing is a requirement.

Having a test hanging over students' heads "is a way to say no," to peer
pressure, Meoli said.

Universal testing was clearly on the minds of many justices, and they
challenged all sides to say whether such a policy would be constitutional.
Meoli said probably not, and the American Civil Liberties Union lawyer
challenging the school said definitely not.

But in what may be the Bush administration's first such statement, Deputy
Solicitor General Paul Clement said universal testing would be constitutional.

Justices Sandra Day O'Connor and David H. Souter were the most vocal in
questioning the Tecumseh policy.

O'Connor noted that lower court testimony indicated students involved in
seemingly wholesome after-school activities were less likely than their
peers to get into trouble with drugs.

"It's just so odd," she said of the testing plan. "It's so
counterintuitive, isn't it?"

The Tecumseh testing program ran for part of two school years. It was
suspended after Lindsey Earls, captain of the school academic quiz team and
self-described "goodie two-shoes," sued over a 1998 drug test. She passed
the test.

"The constitutional rights of a lot of students are at stake here," Earls
said after Tuesday's oral argument session. "My biggest fear is there will
be students drug tested all over, students whose privacy is invaded," said
Earls, now a freshman at Dartmouth College.

The Tecumseh policy covered a range of voluntary clubs and sports,
including the Future Farmers of America club, cheerleading and football.
Students were tested at the beginning of the school year. Thereafter, tests
were random.

Overall, 505 high school students were tested for drug use. Three students,
all of them athletes, tested positive, Earls' lawyer said.