COURT TO WEIGH DRUG TESTING BY SCHOOLS

Justices to Decide if Choir, Club Members' Privacy, Like Athletes', May Be
Breached

Lindsey Earls remembers vividly the day in the fall of 1998 when a teacher
called her and several other students out of choir class at Tecumseh High
School in rural Oklahoma and told them it was time to take a drug test.

The girls went to a restroom and urinated in cups while teachers stood
outside the stalls listening for sounds of cheating. Afterward, the
teachers examined each cup to make sure it contained a liquid of the
requisite color and temperature.

"It was really awkward," Earls, now a first-year student at Dartmouth
College, said in an interview. "The potential that four or five kids may
use drugs is not a good enough reason to invade the privacy of all the
other kids."

Earls was found drug-free, but she felt the experience was so unpleasant
that she and her parents contacted the American Civil Liberties Union.
Aided by ACLU lawyers, they launched a federal lawsuit in 1999, saying the
Constitution prohibits the local school board's policy of requiring random
drug testing of all students who wish to participate in extracurricular
activities such as choir and Future Farmers of America.

On Tuesday, the Supreme Court will hear oral arguments in the case, which
has turned into a major battle about the degree to which the war on drugs
should take precedence over student privacy concerns.

The court's decision in the case will provide crucial guidance to public
school systems across the country contemplating whether to implement
policies like Tecumseh's. Given the importance of extracurricular
activities to students' college applications, the implications are
potentially significant to many American families.

School officials in Tecumseh, supported by friend-of-the-court briefs from
a wide array of anti-drug organizations, school boards and the Bush
administration, say the policy is a minor intrusion on student privacy
intended to deter drug use, not punish it. They say the program is
justified by the threat to health and safety posed by illegal drugs.

"This school district developed its policy out of care and concern for its
students," said William H. Bleakley, a lawyer for the Tecumseh school district.

But opponents of the policy, including not only the ACLU, but also such
groups as the American Academy of Pediatrics and the libertarian Cato
Institute, which have filed friend-of-the-court briefs on Earls's behalf,
say that students in choir and the like are already drug-free, and that, if
anything, the prospect of a drug test actually might drive some students
away from supervised after-school activities that help them resist drugs.

"The single best way to prevent drug use is to get students into choir and
band and the rest," said Graham A. Boyd, the ACLU-affiliated attorney who
will argue Earls's case before the court. "The last thing you want to do is
set up barriers to that."

At the heart of the legal issues in the case is a 1995 Supreme Court ruling
that authorized public high schools to require student-athletes to take
random drug tests as a condition of playing on teams.

The court reasoned that there was substantial evidence of a major drug
problem in the school in question -- to which football players and others
were contributing heavily. Also, the court held that athletes have less
expectation of privacy because they already consent to disrobing in locker
rooms and showering together.

As a result, the court held, there could be an exception to the usual
constitutional requirement for a search warrant.

In the Lindsay Earls case, a federal district court agreed with the school
district that the 1995 Supreme Court ruling could apply to nonathletic
activities. But a year ago, the Denver-based U.S. Court of Appeals for the
10th Circuit reversed the district court 2 to 1. School authorities had not
shown enough evidence that drug use by participants in nonathletic
activities was a major problem, the court held.

The 10th Circuit's divided ruling added to a conflict among lower courts,
and the Supreme Court agreed to sort it out by hearing the school
district's appeal.

Tecumseh school authorities point to the fact that students who participate
in extracurricular activities also voluntarily surrender much of their
privacy, for instance, when they travel to out-of-town singing competitions
and must sleep in crowded dormitory rooms.

The school authorities argue in their brief that even Future Farmers of
America could be put at risk by drugs if the students use them during
animal shows where they have to keep control over animals weighing hundreds
of pounds.

School authorities note that police are never notified of positive test
results.

The ACLU counters that the health risks are not nearly comparable to those
that drug use adds to contact sports such as football.

Indeed, the ACLU vigorously disputes the school district's portrayal of
Tecumseh as a community where parents and teachers report that marijuana
use has grown despite the measures -- including surveillance cameras and
drug-sniffing dogs -- that are already in place at the schools.

"The kind of unsubstantiated anecdotal evidence of drug use that the
district puts forth in support of a special need for drug testing could be
conjured from the halls of every high school in America," the ACLU says in
its brief.

In its friend-of-the court brief supporting the school district, the
National School Boards Association says that "many" of the nation's 14,700
school systems adopted drug testing in some form after the 1995 Supreme
Court case.

Testing has not become the norm, however, partly because of the lingering
legal uncertainty over how far that rule applies, the association said.

"When the court signs off on a form of drug-testing, it plants a seed in
school boards that might have not otherwise considered it," said Boyd, the
ACLU-affiliated lawyer.