COURT TO RULE ON DRUG TESTS FOR SCHOOL GROUPS

WASHINGTON, Nov. 8 — The Supreme Court agreed today to decide whether
public schools may require students to pass drug tests as a condition of
participating in extracurricular activities.

The decision, due before the current term ends early next summer, should
clarify the court's 1995 ruling that upheld drug testing for student
athletes but that left school districts uncertain about whether they could
apply drug testing programs to other groups, or perhaps even to all
students, as a way to deter drug use.

The continuing legal uncertainty has limited the adoption of drug testing
programs, which remain the exception rather than the rule in the country's
15,500 public school systems. Lower courts around the country have reached
different conclusions on whether various drug testing programs, none of
which require suspicion of individual wrongdoing, amount to unreasonable
searches in violation of the Fourth Amendment.

The case the justices accepted today is an appeal by the school board of a
rural district in Tecumseh, Okla., 40 miles southeast of Oklahoma City,
which adopted a drug testing program in 1998 for middle school and high
school students engaged in athletics and in other activities involving
interscholastic competition. These included most extracurricular
activities, among them the chorus, the band, the Future Farmers and Future
Homemakers of America, the cheerleading squad and the academic team.

Under the policy, students were to be tested, by urinalysis, at the
beginning of the school year and then randomly throughout the year, with
names drawn every month. Those who refused to be tested were to be barred
from participating in their activities at the regional, state or national
level. Those who failed the test could continue in their activity if they
agreed to participate in drug counseling and stopped using drugs.

Two families with children in the high school sued to have the program
declared unconstitutional because it went beyond the testing of athletes
that the Supreme Court had upheld. The two original student plaintiffs have
graduated, but Lacey Earls, the younger sister of one plaintiff, now a high
school sophomore, was permitted to enter the case to prevent it from
becoming moot.

The plaintiffs lost in Federal District Court in Oklahoma City but won a
2-1 decision last March from the United States Court of Appeals for the
10th Circuit that the Tecumseh program was unconstitutional.

The drug testing policy was instituted for the 1998-99 school year and was
voluntarily suspended when the suit was filed. Of 505 high school students
tested, only three, all athletes, showed evidence of drug use.

The appeals court majority said that Tecumseh had not demonstrated that
there was "an actual drug abuse problem among those subject to the policy"
and that therefore the balancing test the Supreme Court adopted when it
upheld the testing of student athletes in Vernonia, Ore., tipped against
the school district in Tecumseh. School officials in Vernonia had shown
that the student athletes there were at the center of a drug culture and
were negative role models for other students.

In explaining why the Supreme Court's decision in the Vernonia case did not
require upholding the Tecumseh program, the 10th Circuit emphasized that it
was not requiring evidence of a drug abuse epidemic. But a school district
had to show that it had a problem for which the particular drug testing
program was the solution, the appeals court said.

"Any district seeking to impose a random suspicionless drug testing policy
as a condition to participation in a school activity must demonstrate that
there is some identifiable drug abuse problem among a sufficient number of
those subject to the testing, such that testing that group of students will
actually redress its drug problem," the appeals court, which sits in
Denver, held in an opinion by Judge Stephen H. Anderson, joined by Judge
Wade Brorby. Judge David M. Ebel dissented.

Graham Boyd, director of the American Civil Liberties Union's drug policy
litigation project, which represented the plaintiffs, said in an interview
today that programs such as Tecumseh's were counterproductive because
studies have shown that students involved in extracurricular activities are
less likely to use drugs.

"You're setting up barriers to participation in the very programs that can
save kids from drugs," he said.

In its appeal, Board of Education v. Earls, No. 01-332, the school district
argues that the 10th Circuit's approach "will eliminate a vital tool" for
deterring drug use and force school officials "to point an accusatory
finger at individual students." That would `'transform the process into a
badge of shame," the school board's brief said.

In the appeals court, the school district was supported by the National
School Boards Association. In an interview today, Edwin Darden, deputy
general counsel, said the national organization saw drug testing programs
like Tecumseh's as an option that local boards should be free to adopt as
one means of creating a safe learning environment.

The Supreme Court's eventual view of the case is not necessarily
predictable. The vote to uphold the testing of athletes was 6 to 3, with a
spirited dissenting opinion by Justice Sandra Day O'Connor. In 1997, the
court ruled 8 to 1 that a Georgia law requiring political candidates to
submit to drug tests to appear on the ballot was unconstitutional.