SCHOOL DRUG TESTS ON TRIAL

Supreme Court Hints It Will Uphold Policy

WASHINGTON - With drug use on the rise again, the Supreme Court justices
strongly hinted Tuesday they are likely to uphold mandatory drug testing
for most or all high school students.

During a sharp back-and-forth argument, several conservative justices said
they, like most parents, want to keep "the druggies" out of their local
schools.

Apparently agreeing, Justice Stephen Breyer compared drug testing to metal
detectors at school doors, a new but necessary means of keeping schools safe.

"If there's a (drug) problem of a serious sort, why can't they do this?"
Breyer asked a lawyer for the American Civil Liberties Union.

Because of the Fourth Amendment and its ban on "unreasonable searches and
seizures" by the government, said the lawyer, Graham Boyd of New Haven, Conn.

He is representing a sophomore choir singer at a rural Oklahoma high school
who objected to the mandatory urine tests that came with participation in
extracurricular activities.

The "core constitutional principle" is that officials must have
"individualized suspicion" before they search someone, Boyd said as he
opened his argument. The government cannot search everyone in hopes of
catching someone, he said.

Within seconds, Breyer cut him off. What about metal detectors? What about
throat swabs, the justice asked in a scornful tone.

In 1995, the court upheld an Oregon school board's policy of testing all
its athletes for drugs. The requirement of "individualized suspicion" is a
figment of the past, Breyer suggested, especially when police are not involved.

The attorney stopped, then continued in a soft voice, as if the wind had
been knocked out of him and his argument.

It is not reasonable to test all the students in extracurricular
activities, Boyd argued, since there is no evidence of a serious drug
problem in rural Tecumseh, Okla. "Why should I trust your assessment over
the local citizens who elect the school board?" said Justice Antonin
Scalia. If parents do not like the policy, they can ask the school board to
change it, he said.

Boyd pointed out some parents in the community oppose the drug-testing
policy and support the lawsuit.

"Are you saying that if a minority of the parents object, it's
unconstitutional?" said Chief Justice William Rehnquist.

Justice Anthony Kennedy, who earlier voiced his contempt for the "drug
culture," leaned toward his microphone.

Suppose parents had a choice of schools in the community, he offered. They
could choose to send their child to a "druggie school." Or they could
choose one that was drug-free, a policy enforced by mandatory drug testing.

"No parent would send their child to the druggie school - other than
perhaps your client," Kennedy said.

Taken aback, Boyd objected. His client, Lindsay Earls, is now a student at
Dartmouth College, and she was never a drug user, he said.

The sharp exchange amplified the court's more conservative approach to
issues of students' rights.

During the Vietnam War, the Supreme Court upheld a student's right to wear
a black arm band, saying high school students "do not shed their
constitutional rights at the schoolhouse door," an often-quoted line.

These days, most of the justices voice a different view.

Scalia said Tuesday school officials make the rules at school, and he
derided the notion students have privacy rights.

"You are dealing with minors here. You can keep them in prison in effect,
and say, 'You have to stay after school because you haven't done your
homework,'" he said. "There's a world of difference between minors and adults."

Scalia wrote the 1995 opinion that upheld drug testing of student athletes
for a 6-3 majority. Since then, it has been unclear whether schools could
test all students or athletes only.

Lower courts split on the question.

The Tecumseh school board chose a midpoint, requiring routine and random
tests for all students who participate in after-school activities,
including the band, cheerleaders and the Future Farmers of America.

Only three students tested positive for drugs in the first year, requiring
a school meeting with the parents and their child.

But the ACLU sued on behalf of Earls, and the U.S. Court of Appeals in
Denver struck down the policy, 2-1.

Surveys show drug use among students rose in the 1990s, the National School
Boards Association said in a brief filed with the court. Last year, 41
percent of high school seniors said they had used illegal drugs, according
to one survey.