BUSH ADMINISTRATION BACKS TECUMSEH DRUG TESTING

WASHINGTON -- The Bush administration says the drug testing program used by
Tecumseh High School is constitutional and that the U.S. Supreme Court
should allow tests of students in activities such as band and FFA. "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 late
last month in the Oklahoma case.

The solicitor general, the administration's advocate before the Supreme
Court, also has asked for time to make its case during oral arguments,
which are set for March 19.

The administration and the Tecumseh School District are urging the court to
reverse a decision by the 10th U.S. Circuit Court of Appeals that struck
down the drug testing as unconstitutional.

The appeals court ruled the Tecumseh policy didn't meet the standards laid
out in a previous Supreme Court decision that upheld the testing of high
school athletes in a school with severe drug problems.

The Tecumseh school policy, instituted in 1998, requires the testing of all
students who want to participate in athletics, cheerleading, pompon squad,
choir, band, FFA, FHA and academic teams. Random tests and tests of
students suspected of drug use also are part of the policy.

In 1999, two Tecumseh students challenged the legality of the tests in
federal court in Oklahoma City. U.S. District Judge David Russell upheld
the drug-testing policy. It then was overturned by the appeals court, and
the Tecumseh district appealed to the Supreme Court.

The high court's ruling, expected sometime before the court adjourns this
summer, is expected to give school districts across the country more
guidance about when they can test students who aren't necessarily suspected
of using drugs.

American Civil Liberties Union attorney Graham Boyd, who throughout the
case has represented the students who challenged the policy, said Thursday
the Bush administration's arguments vary little from the school district's
or other supporters of the policy.

"The fact of the solicitor general's filing does carry some weight in and
of itself," Boyd said.

It might carry even more weight, he said, if the administration were
fighting for a federal interest rather than a local one.

"What's most important is that the solicitor general has experienced,
talented lawyers," Boyd said. "I'm not sure that makes any difference in
this case because I don't think the school policy is defensible, no matter
how talented their lawyers are. At the end of the day, the justices are
going to look at the merits."

The Bush administration, like the school district, is arguing the Tecumseh
policy is constitutional because its intent is similar enough to the policy
upheld for athletes in the 1995 case, Vernonia School District v. Acton.
Boyd's position is the Tecumseh case is vastly different from the Vernonia
case.

In its recent brief, the solicitor general's office argues, "To be sure,
the linebacker faces a greater risk of serious injury if he takes the field
under the influence of drugs than the drummer in the halftime band.

"But at the same time, the risk of injury to a student who is under the
influence of drugs while playing golf, cross country or volleyball (sports
covered by the policy in Vernonia) is scarcely any greater than the risk of
injury to a student who is drug-impaired while building a 15-foot-high
human pyramid (as cheerleaders do), handling a 1,500-pound steer (as FFA
members do) or working with cutlery or sharp instruments (as FHA members do).

"Moreover, students who participate in extracurricular activities, athletic
or not, risk harm from drug use not just when they are competing, but at
any time during the trips or overnight stays that they often take in
connection with events."

Boyd said the problem in Vernonia was that there was a serious drug problem
centered around star athletes whom other students looked up to, and that
the athletic activities could be even more dangerous for students using drugs.

In Tecumseh, he said, there was no evidence presented of widespread drug
use. In Boyd's brief, he stated that of 505 students tested, only three
tested positive and all three were athletes.

The Bush administration argues in its brief that school drug-testing
policies shouldn't turn on "finely-drawn distinctions over the state of the
record of drug use at that particular school, or among a particular class
of students, or whether a destructive problem is already out of control.

"There is no reason to invite such fact-intensive litigation in every case,
or to demand a school-specific inquiry into what is clearly a pervasive
national problem. The Court should leave school administrators with
flexibility to adopt common-sense, drug- deterrence measures like the
policy at issue in this case."