TEST POLICY TESTED - SCHOOLS SHOULD BE FREE TO SCREEN FOR DRUGS

It is not unreasonable for schools in Dublin -- or anywhere else, for
that matter -- to require athletes to be tested for drug use.

After all, representing one's school in athletic competition is a
privilege, not a right. In many school districts, athletes are held
to higher standards than other students are for off-the-field conduct
and academic achievement, so it makes sense to hold them to a higher
standard for being drug-free. Many athletes and their parents
probably would agree.

Any debate on this issue centers on what is a reasonable method for
enforcing a reasonable standard.

Routine and random drug-testing of school athletes is accepted by
many people as a rational way to monitor drug use and address
problems before they become an epidemic. In approving its own
drug-testing policy for athletes last year, the Dublin Board of
Education recognized drug use as a general problem in schools.

But drug-testing, especially when ordered by a government body, does
raise an invasion-of-privacy issue. When government is involved, the
question becomes whether drug-testing violates the Fourth Amendment's
guarantee against unreasonable search and seizure.

Dublin's policy is being challenged by the American Civil Liberties
Union. The ACLU has filed suit in federal court seeking to have the
policy declared unconstitutional under the Fourth Amendment.

The ACLU argues that Dublin's policy falls short of the U.S. Supreme
Court's standard that the validity of a "random, suspicionless
drug-testing policy'' in schools hinges on whether the policy was
enacted in response to a "demonstrated problem.''

What makes a demonstrated problem is also open to debate.

Sixteen months ago, when the Dublin board approved its policy,
then-Superintendent Stephen Anderson called drugs "a major issue in
our schools.'' The policy requires all students who participate in
interscholastic sports at Scioto and Dublin Coffman high schools to
take a drug test at the start of each sports season and be subject to
random testing every week.

The tests screen for up to 13 substances, including alcohol and
nicotine. A positive test result can lead to discipline up to and
including expulsion from a team. Parents are billed $26 for each
initial test.

The Supreme Court has held that because schools have a legitimate
need to enforce discipline, students have a lesser protection against
government intrusions on constitutional rights. In a 1995 case from
Oregon that is the benchmark on school drug-testing, the court ruled
that schools may impose tests on athletes without probable cause or
even a suspicion that a student is using drugs.

To overcome Fourth Amendment problems with drug-testing in general,
government entities must show a "special need'' to order testing. For
example, the government can require that members of train crews
involved in accidents be tested for drugs, because the government has
a strong interest in ensuring rail safety.

Special need is fairly easy to establish. The only time the Supreme
Court has invalidated a drug-testing policy for lack of special need
occurred in 1997, when it struck down a Georgia law that required
political candidates to take drug tests. The law failed to pass
muster partly because the state had not shown that there was a drug
problem among political candidates.

In schools, the special-need threshold is even lower: Mass
drug-testing is allowed if a district has a "documented drug-abuse
problem.'' In the Oregon case, testimony revealed that the school
district, indeed, had a problem: The district showed a threefold
increase in classroom disruptions and disciplinary reports and a
large segment of the student body "in a state of rebellion,'' along
with drug use that was especially widespread on athletic teams.

The ACLU argues that the Dublin district falls short of meeting the
special-need threshold: This fall, for example, 1,231 tests produced
only four positive results, two of them from the same student.

What might happen with the ACLU's suit against Dublin schools is hard
to predict in light of the Supreme Court's decision last month to
hear an Oklahoma case that could change the landscape on school
drug-testing. In it, the 10th U.S. Circuit Court of Appeals struck
down a policy similar to Dublin's on grounds that the school district
had not demonstrated a drug problem.

"Unless a district is required to demonstrate such a problem,'' the
court noted, "there is no limit on what students a school may
randomly and without suspicion test. Without any limitation, schools
could test all of their students simply as a condition of attending
school.''

Although the court found that being required to submit a urine sample
was not a significant invasion of student privacy, it also declared,
"We do not believe that voluntary participation in an activity . . .
should reduce a student's expectation of privacy in his or her own
body.''

If the Supreme Court affirms the rejection of the Oklahoma school
drug policy, Dublin could argue that its policy does not violate the
Fourth Amendment because its policy affects only sports, where
injury- prevention is a concern. The Oklahoma district's policy went
well beyond athletics to reach such activities as choir, where the
most serious complaint had been that a student had once brought
alcohol concealed in a cough-syrup bottle.

The Dublin policy was passed on a 4-1 vote of the board, over the
objections of several parents who spoke against it. Parents are free
to lobby the school board if they object to a policy, but there are
probably plenty of reasonable people in Dublin who support the
drug-testing policy and who hope the courts see things their way.