DRUG POLICY DEBATE SPILLS OUTSIDE COURT

WASHINGTON -- In a morning of tense arguments inside and outside the
Supreme Court, justices Tuesday wrestled with the question of whether the
government's interest in deterring and detecting drug use among teen- agers
outweighs the privacy concerns of public school students. Some justices
seemed to signal their approval of the Tecumseh, OK, School District's
decision to require drug tests of all students who want to participate in
competitive activities, even without specific suspicions.

Justice Antonin Scalia said the school "is trying to train and raise these
people to be responsible adults."

Justice Anthony M. Kennedy said a student offended by having to take a drug
test could simply decline to participate in extracurricular activities.

But Justice Sandra Day O'Connor said it was "counterintuitive" to drug-test
students who seemed less likely to use drugs than those students who didn't
participate in activities such as band and choir.

"The whole thing is absolutely odd," she said.

Outside the court, after oral arguments before the justices in the closely
watched case, a woman whose son died from a drug overdose confronted
Lindsay Earls, the former Tecumseh High School student who challenged the
drug-testing policy in court.

Ginger Katz of Norwalk, Conn., referred to her son, Ian, and told Earls:
"He was your age ... You would have liked him."

Katz, a member of a parents' group fighting drug use and endorsing school
drug testing, told Earls she could give up some of her privacy. Earls, a
freshman at Dartmouth College, stood expressionless as Katz addressed her
before a large media group. She didn't respond to Katz's comments.

However, in replying to reporters' questions about the parents promoting
testing, Earls said, "Maybe their children died, but there are other
American students who have a right to privacy."

Earls -- who was a member of Tecumseh's academic team, band and choir --
and two other students sued the Pottawatomie County school district in
1999, claiming the school's policy violated their Fourth Amendment
protection against unreasonable searches.

A federal judge in Oklahoma City upheld the school's policy, but the 10th
U.S. Circuit Court of Appeals in Denver ruled it unconstitutional. The U.S.
Supreme Court agreed to hear the school district's appeal; a decision is
expected before the court term ends this summer.

The U.S. Supreme Court ruled in a 1995 case that an Oregon school could
test all of its athletes for drug use after evidence of a drug epidemic was
linked to the football team.

The question before the court in the Oklahoma case is whether schools can
go beyond that decision and test students even if lacking evidence of a
drug crisis or concerns about physical danger involved in the
extracurricular activities.

At times on Tuesday, Scalia, Kennedy and Justice William H. Rehnquist
snapped at Graham Boyd, the American Civil Liberties Union attorney
representing Earls.

After Boyd said he applauded some steps taken to monitor students on school
grounds, Rehnquist asked him who cared what he applauded. When Boyd
suggested some nonathletes don't face the same physical danger, Scalia
asked, "You think life and death is not at issue in the fight against drugs?"

Justice Stephen Breyer, who may be a key vote in the case, said the
Oklahoma case was a "slight expansion" of the Oregon case involving
athletes but it was hard to see why he would vote against the Oklahoma
policy because he voted for the Oregon one.

The justices voted 6-3 in the Oregon case, with O'Connor writing a dissent
that was joined by Justices David Souter and John Paul Stevens.

Some justices focused on whether a logical extension of the Oklahoma policy
would be the testing of all students, whether there was any suspicion or not.

Linda Meoli, the lead attorney for the school district, said such a policy
might present problems if the consequence of failing a drug test was expulsion.

Paul Clement, arguing for the Bush administration, said testing all
students would pass constitutional muster.

Clement said the Supreme Court had upheld the testing of U.S. customs
officials because they're on the front line of the supply side of the drug
trade.

Students, he said, were on the front line of the demand side.

But Boyd argued the government would have to show a specific problem in a
targeted group to implement a "blanket intrusive search."

He said Tecumseh schools had failed to show a drug problem existed among
the students in competitive activities before implementing a policy of
testing all the students.

Kennedy said schools shouldn't have to wait for a crisis to develop. If
schools don't have a problem, he said, "maybe they're entitled to keep it
that way."