COURT TO CLARIFY DRUG TESTING LAW FOR PUBLIC SCHOOLS

Oklahoma Urinalysis Case At Issue

Washington -- The Supreme Court agreed yesterday 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 school year ends next spring, should clarify
the court's 1995 ruling that upheld drug testing for student athletes but
left school districts uncertain about whether they could apply drug testing
programs to other groups of students, 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 have reached different
conclusions on whether 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 yesterday 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, including 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 at random 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
to 1 decision last March from the 10th U.S. Circuit Court of Appeals in
Denver 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 serving as negative role models for other students who looked up to them.

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.

In its appeal, 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."

The case is Board of Education vs. Earls, No. 01-332