DRUG TESTS, KIDS' RIGHTS ARE WEIGHED BY JUSTICES

Oklahoma School Policy Could Set A Precedent

WASHINGTON -- To fight drug abuse among children, a school should be allowed
to perform random narcotics tests on students in extracurricular activities,
a lawyer for an Oklahoma school district told the Supreme Court on Tuesday.

Several of the justices expressed strong sympathies for expanded urine
screening of students -- suggesting the court will open the door for blanket
drug tests for virtually all 24 million public secondary-school students
nationwide. A decision striking down the policy could help strengthen the
privacy rights of public school students.

Linda Meoli, representing the Tecumseh, Okla., school board, called its
policy requiring the tests for all 7th- through 12th-graders seeking to join
extracurricular activities a reasonable response to the drug use problem
among the nation's youth.

Meoli said the policy makes students "think twice about using drugs and
gives them a way to say, 'No,' when other students pressure them to use
drugs."

But Graham Boyd of New Haven, Conn., representing a student who challenged
the policy, said the drug testing unfairly targets students participating in
extracurricular activities. Boyd, an American Civil Liberties Union lawyer,
said even school officials acknowledge that such youngsters are unlikely to
use illegal narcotics.

"If there was some evidence that drug use among these students posed a
danger to themselves or others, I could maybe see this policy, but in this
case, you're talking about the choir," he said.

Justice Sandra Day O'Connor agreed, saying the policy seemed to penalize
students in extracurricular activities. Calling it "absolutely odd," she
said the program is "structured in a way that does little good."

However, Justice Antonin Scalia sarcastically asked Boyd whether he
considered a drug overdose a danger to a student who dies.

"Of course, your honor," Boyd replied. "But these students are the least
likely to use drugs. So there is almost no chance of that happening."

Tecumseh school officials estimate that about 5 percent of their students
use drugs and said that the vast majority of those using narcotics do not go
into extracurricular activities.

But Justice Anthony Kennedy asked why a school should wait until drug use
rises to dangerous levels before trying to fight the problem. He told Boyd,
"You're saying there must be a great crisis -- they should lose a few years
of students before acting?"

Kennedy dismissed objections to drug testing by suggesting that mandatory
urine screening was little different from requiring students to wear a
school uniform.

Justice Stephen Breyer noted that the Supreme Court ruled in 1995 that a
school can impose testing on athletes as a response not just to local
problems but to nationwide drug use.

The court found that the school in the 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, and students who used drugs while playing
vigorous sports could also be a danger to themselves or others.

Breyer, who voted with the 6-3 majority in the 1995 case, suggested the
Oklahoma school district took the logical next step. "It's hard for me to
see. . . . I'd come out different here," he noted Tuesday.

In a friend-of-the-court brief, Solicitor General Theodore Olson outlined
the Bush administration's backing for the Tecumseh policy. Olson noted that
a 2000 government survey showed 54 percent of high school seniors reported
some illegal drug use in their lifetime. Nearly 25 percent said they had
used drugs within the previous month.

"Schoolchildren are not only more vulnerable to drug use than adults, but
such abuse is much more likely to devastate their lives," Olson wrote.

Student Speaks Out

The Tecumseh policy, implemented in 1998, requires students taking part in
extracurricular activities to agree to random drug tests throughout the
year. The school offers such activities as sports, band, chorus, Future
Homemakers of America, Future Farmers of America, cheerleading and academic
teams that compete against similar teams at other schools.

Students who tested positive were allowed to continue in the activities as
long as they agreed to drug counseling and follow-up tests. Students who
tested positive a second time within one school year were suspended from
their activities for 14 days but allowed to return after agreeing to four
hours of substance-abuse education and follow-up testing.

Students who tested positive three times within a school year were suspended
from the activities for the rest of the school year.

Records of students' drug tests were kept in a separate file from their
usual school records and could be seen only by the students, their parents,
the principal, the athletic director and academic coaches.

During the first year, 505 high school students were tested for drug use.
Three students, all of them athletes, tested positive, according to court
documents.

In 1999, the policy was challenged by Lindsay Earls, who wanted to sing in
the school choir, march in the school band and compete on her school's
academic team. Earls, now a freshman at Dartmouth College in New Hampshire,
argued that the policy violated the Fourth Amendment's prohibition against
unreasonable searches.

"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."

Wider Testing Is Rare

In 1999, a federal judge in Oklahoma City upheld the Tecumseh policy, but a
panel of the U.S. 10th Circuit Court of Appeals in Denver struck it down by
a 2-1 vote. The appeals court said the possible deterrent effect of the
tests wasn't enough to justify their use as a condition to participation in
extracurricular activities.

Wider drug testing remains relatively rare among the nation's 15,500 public
school districts. Lower courts have disagreed on the issue. State courts in
Colorado, Indiana and Pennsylvania have struck down random drug tests for
those in extracurricular activities. However, two federal appeals courts --
the 7th Circuit in Chicago and the 8th Circuit in St. Louis -- have upheld
similar programs.

Besides its 1995 decision, the Supreme Court has upheld random drug tests
for railroad employees involved in accidents and for U.S. Customs Service
agents working in drug law enforcement.

But the high court has also struck down a Georgia law that required
candidates for certain offices to submit to drug tests.

A final ruling on the latest case is expected by early summer.