SUPREME COURT SEEMS READY TO EXTEND SCHOOL DRUG TESTS

WASHINGTON, March 19 — The Supreme Court appeared ready today to authorize
a substantial expansion in drug testing of public school students beyond
the category of student athletes, for whom the court has already found
random drug testing to be constitutional.

In an hour of spirited, intense and sometimes downright nasty argument, the
justices examined the implications of upholding a program in a rural
Oklahoma school district that requires middle school and high school
students to pass drug tests as a condition for participating in any
extracurricular activity that involves interscholastic competition,
including the chorus, the band and the Future Homemakers of America.

"If your argument is good for this case, then your argument is a fortiori
good for testing everyone in school," Justice David H. Souter told Linda M.
Meoli, the lawyer representing Independent School District No. 92 of
Pottawatomie County, Okla. "Every child in every school district in the
United States" would fall within the district's rationale of the need to
deter drug use, he said.

Ms. Meoli said that was not necessarily so, and that a distinction could be
drawn between testing all students and just those who want to take part in
extracurricular activities. Students have to be in school, she said, while
they could choose not to take part in activities.

Paul D. Clement, a deputy solicitor general presenting the Bush
administration's view of the case, was more categorical. A schoolwide drug
testing program would be constitutional, Mr. Clement said in answer to a
question from Justice John Paul Stevens.

But limiting the testing to students who participate in activities was
easier to defend, Mr. Clement said, because students know the rules and
implicitly agree to be tested when they sign up for the activities.

"These are avoidable programs," he said.

Justice Souter disagreed that students could be said to be accepting the
drug testing condition voluntarily.

"They are under tremendous pressure to agree to it," he said. "They know
perfectly well that they won't get into a competitive college" if they do
not participate in extracurricular activities.

By the end of the argument, the debate over tying drug testing to
extracurricular activities seemed almost beside the point, because a
majority of the court appeared untroubled by the prospect of a broader
testing policy.

"What I miss in your argument is any recognition that you're dealing with
minors," Justice Antonin Scalia said to Graham A. Boyd, an American Civil
Liberties Union lawyer representing the family who challenged the Oklahoma
district's policy.

The school district was "trying to train and raise these young people to be
responsible adults," Justice Scalia said.

When Mr. Boyd said that the Pottawatomie district adopted the policy in the
absence of any demonstrable disciplinary problem, Justice Scalia said: "So
long as you have a bunch of druggies who are orderly in class, the school
can take no action. That's what you want us to rule?"

To Mr. Boyd's assertion that the district had no serious drug problem,
Justice Anthony M. Kennedy told him: "It seems to me that if a school
district is better than other districts, with less drug use, they're
entitled to keep it that way. You seem to be saying that there has to be a
great crisis, where we lose a few years to drugs."

In a previous ruling, a 1995 decision that upheld the testing of athletes
in the small town of Vernonia, Ore., the 6-to-3 majority put great weight
on two factors: that there was a substantial drug problem and that athletes
were evidently at the center of it.

Earlier Supreme Court decisions had established that in constitutional
terms a drug test conducted by a government agency is a search within the
meaning of the Fourth Amendment, which prohibits unreasonable searches. The
question is whether any particular drug-testing program is reasonable.

The United States Court of Appeals for the 10th Circuit, in Denver, ruled
last year that the broader program the Oklahoma district adopted in 1998
was not reasonable because unlike Vernonia, Pottawatomie had not shown that
there was a specific problem for which drug testing was a solution.

It was that ruling that the Pottawatomie district was challenging today and
that Mr. Boyd, director of the civil liberties union's drug policy
litigation project, was defending on behalf of the Earls family.

Lindsay Earls graduated from the district's Tecumseh High School last June
and her sister Lacey is still a student there. By the time the Earlses
brought their lawsuit, the policy had been in place for nearly two years;
of more than 500 students tested, three or four showed evidence of drug use.

The dissenters in the Vernonia case were Justices Souter, Stevens, and
Sandra Day O'Connor. To prevail in the new case, Board of Education v.
Earls, No. 01-332, Mr. Boyd therefore had to peel two other justices away
from the Vernonia majority. The only two likely candidates were Justice
Ruth Bader Ginsburg, who wrote a qualified concurring opinion in the
Vernonia case, and Justice Stephen G. Breyer.

Justice Ginsburg appeared possibly amenable. She told Ms. Meoli, the school
district's lawyer, that she found it illogical to tie drug testing to
extracurricular activities because testimony in the lower court indicated
that students involved in activities posed less of a drug problem "than
students who don't do anything after school."

Justice Breyer seemed favorably disposed to the Pottawatomie program. "No
one is arrested," he told Mr. Boyd. "It's counseling. It's an effort to
deal with the demand side of drugs."

Referring to the Vernonia case, he told the lawyer: "You might be able to
drive a millimeter of light" between the two cases. "Go ahead and try," he
added.

But before Mr. Boyd could get very far, Justice Breyer said: "Undoubtedly,
you're right. This is a slight expansion of Vernonia. But it's hard for me
to see how if I came out one way in Vernonia, I should come out differently
here."

The justices appeared unusually snappish. When Justice Souter was invoking
the small number of positive drug tests to question the district's need for
drug testing, Chief Justice William H. Rehnquist offered a helping hand to
Ms. Meoli. "The existence of the policy might be expected to deter drug
use, wouldn't it?" he asked the district's lawyer.

"Then we'll never know, will we," Justice Souter said with some asperity.

"Let her answer the question," the chief justice said sharply.

But most surprising was Justice Kennedy's implied slur on the plaintiffs in
the case. He had posed to Mr. Boyd the hypothetical question of whether a
district could have two schools, one a "druggie school" and one with drug
testing. As for the first, Justice Kennedy said, "no parent would send a
child to that school, except maybe your client."

In fact, Lindsay Earls passed her drug test, which she challenged as an
invasion of her right to privacy. She is now a freshman at Dartmouth
College and was in the audience today.

Linda Greenhouse, winner of the Pulitzer Prize for beat reporting, answers
readers' questions on Supreme Court rules and procedure in this column,
available exclusively on NYTimes.com. Email Ms. Greenhouse a question at
scotuswb@nytimes.com with "Supreme Court Q&A" in the subject line and your
name and town in the message. Questions will be answered only in the column
and only when they are of general interest.