TECUMSEH SCHOOLS' CASE HEADS TO SUPREME COURT

WASHINGTON -- Three years ago, Lindsay Earls was embarrassed to hear a
faculty monitor joking about "potty training" while she provided a urine
sample in a rest room stall at Tecumseh High School. Earls, a junior in
1999, was providing the sample for drug testing, a condition all Tecumseh
High students participating in competitive activities had to meet. Earls
was a member of the school's academic team, its band and choirs.

For Earls, it wasn't just the awkward moments in the rest room but the
principle that led her to challenge the school district's drug-testing policy.

Earls, a freshman at Dartmouth College, is planning to be in the U.S.
Supreme Court's chambers Tuesday as lawyers argue over whether the drug
test was an invasion of her privacy.

The Pottowatomie County case is also being watched closely by groups across
the country with an interest in public schools, teen drug abuse and civil
liberties.

A decision in the case is expected before the court ends its term this
summer. It should determine whether public schools can require drug tests
of all students in competitive activities even if they're not suspected of
drug use.

The question is whether the schools' interests in protecting students and
eradicating drug use override students' privacy interests.

Earls, her sister Lacey, and former student Daniel James sued the school
district in 1999, claiming the suspicionless testing violated their Fourth
Amendment protection against unreasonable searches.

U.S. District Judge David Russell upheld the drug testing policy, but he
was overturned by the 10th Circuit Court of Appeals in Denver. The school
district appealed to the U.S. Supreme Court, and the Bush administration
has entered the case on the district's side.

The key precedent is a 1995 case from Vernonia, Ore., where a drug testing
program for athletes was instituted after local school board officials
determined some football players were the leaders of a rebellious drug
culture with influence over other students who saw the athletes as role models.

In a 6-3 decision, the U.S. Supreme Court said the Vernonia drug-testing
plan was constitutional.

The court said public school students, particularly athletes, already have
lesser privacy expectations than adults. It also said the urine test was a
minor invasion because the conditions were almost identical to those of a
public rest room.

Also, the court said the nature and immediacy of the problem made the tests
reasonable.

"The importance of deterring drug use by all this Nation's schoolchildren
cannot be doubted," the court said. "Moreover, the policy is directed more
narrowly to drug use by athletes, where the risk of physical harm to the
user and other players is high."

Rob DeKoven, a professor at California Western School of Law in San Diego,
said many schools across the nation interpreted the Vernonia decision to
mean nonathletes could also be tested. The 7th Circuit Court of Appeals
upheld a school policy in Indiana, DeKoven said, that required the testing
of students who drove cars to school.

DeKoven, who specializes in education law, said the Supreme Court probably
took the Oklahoma case to resolve the split between the 7th and 10th
Circuit Courts.

Persuading a majority of the Supreme Court to sanction suspicionless
searches beyond the limits of the Oregon case may prove to be a big
challenge, DeKoven said.

In the Oregon case, two of President Clinton's appointees, Justices Ruth
Bader Ginsburg and Stephen Breyer, joined the majority in allowing the
testing of athletes; three Republican appointees, Justices Sandra Day
O'Connor, John Paul Stevens and David H. Souter filed a strong dissent.

O'Connor wrote, "Having reviewed the record here, I cannot avoid the
conclusion that the (school) District's suspicionless policy of testing all
student athletes sweeps too broadly, and too imprecisely, to be reasonable
under the Fourth Amendment."

Ginsburg wrote a separate opinion upholding the policy but within the
limits of the Oregon case.

DeKoven said he expects Ginsburg to side with Earls in the Oklahoma case
and that Breyer or Justice Anthony Kennedy, or both, may also vote against
the school district.

The American Civil Liberties Union, which has represented Earls from the
case's beginning, is arguing Tecumseh doesn't have the demonstrated drug
problem that prompted the Vernonia testing program; the ACLU says students
in such activities as FFA and band don't face the same physical risks as
football players.

But the Tecumseh district and the solicitor general, President Bush's
advocate before the Supreme Court, say the court doesn't have to compare
the record of drug use in Tecumseh with that in Vernonia to uphold the drug
testing of students in extracurricular activities.

"The compelling nature of the government interest in deterring drug use in
schools is alone sufficient to justify a drug-testing policy like the one
at issue here," the solicitor general's office argued in a brief filed in
the case.

ACLU attorney Graham Boyd rejects that position, saying it would leave "no
principled limitation to prevent drug testing all 23.7 million students in
junior and senior high schools throughout the nation, about 10 percent of
all United States residents.

"Never has any court ruling endorsed a suspicionless search of such a
significant segment of the population."

Attorneys in the case have argued over the level of drug use at Tecumseh
High School when the testing policy was implemented in 1998.

Boyd, with the ACLU, said the high school had reported to the federal
government that drug use was continuously low and decreasing among its
students.

But the Tecumseh School Board's attorney, Linda Maria Meoli with the Center
for Education Law, said the drug testing program was intended to address
"the long-standing drug problem in Tecumseh."

In a brief, Meoli said the school board, "who are all parents or
grandparents of Tecumseh students and are acutely and intimately aware of
the conditions within the school district, determined that the drug abuse
that existed in the district was more severe than it should be."

The National School Boards Association and state school board associations
from Oklahoma and other states filed a friend-of-the-court brief siding
with Tecumseh.

The Drug Free Schools Coalition has also sided with the school district. A
brief for the district's position was also filed by the Washington Legal
Foundation on behalf of Gov. Frank Keating, U.S. Sen. Don Nickles, R-Ponca
City, U.S. Rep. Wes Watkins, R-Stillwater, state Rep. Fred Morgan,
R-Oklahoma City, and 30 Pottawatomie County residents.

Among those siding with Earls are the American Academy of Pediatrics, the
National Education Association, the American Public Health Association, the
Juvenile Law Center and the Children and Family Law Center.