DIVIDED HIGH COURT WEIGHS RANDOM STUDENT DRUG TESTS

A sharply divided Supreme Court appeared yesterday 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 began in a rural Oklahoma school district, has
attracted attention because it may clarify the rules on drug testing
for 14,700 public school systems nationwide -- with potential
consequences both for schools' anti-drug efforts and for students who
hope to list extracurricular activities on college applications.

Federal funding is available for public school drug-testing, which is
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 to 3 vote 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 issue yesterday was whether the logic of that 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
extracurricular activities for the rest of the school year, but do
not 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 G. 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 H. 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.

"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.

Justice Anthony M. 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.

A decision in the case, Board of Education of Independent School
District No. 92 of Pottawatomie County v. Earls, is likely by July.