Pubdate: Tue, 22 Aug 2000
Source: Munster Times (IN)
Copyright: 2000 The Munster Times
Contact:  The Times, 601 45th Ave., Munster, IN 46321
Fax: (219) 933-3249
Website: http://www.thetimesonline.com/
Author: Terry Burns

INDIANA COURT STRIKES DOWN RANDOM DRUG TESTING IN SCHOOLS

Appeals Panel Sets Precedent In Its Decision On Kokomo Case.

INDIANAPOLIS -- In a decision that could force schools across the state to 
abandon random drug testing policies for athletes and other students, the 
Indiana Court of Appeals on Monday declared a Howard County school 
district's testing policy unconstitutional.

The three-judge panel's unanimous ruling found that a random drug testing 
policy adopted early last year by the Northwestern School Corp. near Kokomo 
infringed on the rights of students by violating state constitutional 
protections against unreasonable searches and seizures.

Although the decision strikes down the use of random drug testing, schools 
still retain the authority to test students if there is a reasonable 
suspicion of drug use.

David Emmert, general counsel for the Indiana School Boards Association, 
said if the ruling is allowed to stand, or a stay isn't granted by the 
Indiana Supreme Court, his group will have little choice but to advise 
schools statewide to end random drug testing programs.

"This is not what we wanted," he admitted. "This will be upsetting to many 
Indiana school districts who will now have to stop the practice. If this 
isn't appealed, it becomes the law of the land, at least in Indiana."

Emmert estimates that over the last 16 years, nearly one-third of Indiana's 
290 school districts have adopted some type of random drug testing policy.

The sweeping ruling comes despite several recent decisions handed down by 
the U.S. Supreme Court and a variety of federal appellate courts upholding 
the constitutionality of random drug testing in schools. At least three of 
those federal rulings involved policies adopted by Indiana schools.

In reaching its decision, however, the Indiana appeals court ruled that the 
state constitution offers even broader protections than the Fourth 
Amendment of federal constitution -- although the language in each document 
is identical -- in shielding citizens, including students, against 
unwarranted searches and seizures.

As a basis for its ruling, the appeals court cited an Indiana Supreme Court 
decision that said the state's constitutional prohibition against 
unreasonable and illegal searches should be given a more "liberal 
construction" than its federal counterpart.

"We may part company with the interpretation of the Supreme Court of the 
United States or any other court based on the test, history, and the 
decisional law elaborating the Indiana constitutional right," Judge Patrick 
D. Sullivan wrote for the court.

"The framers of the Indiana Constitution intended to protect the people 
from abuses of police power. We see no reason to depart from requiring 
individualized suspicion to protect against the abuses associated with 
blanket suspicionless searches of school children," said Sullivan, who was 
joined in the opinion by judges Nancy Vaidik and Mark Bailey.

"The Indiana test regarding searches and seizures has always been one of 
reasonableness," the court added. "When focusing upon the reasonableness of 
the official behavior in the instant cases, we hold that NSC's policy of 
conducting suspicionless drug testing of students participating in 
athletics, extracurricular or co-curricular activity, or those who drive to 
school, is unconstitutional."

Another concern, the court pointed out, is that while various federal 
courts have ruled on the constitutionality of drug testing policies, the 
courts themselves can't seem to agree on a single or absolute basis for 
instituting a policy.

While acknowledging that the district may have been well-intentioned in 
adopting a drug testing policy, the court nonetheless concluded that the 
decision went too far.

"The school does not propose a direct correlation between drug use and its 
need to randomly test the majority of the students for drugs. Rather, NSC 
admits that its goal is to prevent future tragedies. This is an 
unmistakable move toward randomly testing all students," the court said.

The district's random drug testing policy, adopted in January 1999, applied 
not only to student athletes, but included seventh to 12th graders who 
drive to school or take part in certain extracurricular and co-curricular 
activities like drama, National Honor Society, choir, band, student 
government, Future Farmers of America and Students Against Drunk Driving.

The policy was crafted by a group of parents and school officials after two 
students died from drug overdoses and a recent graduate was killed in a car 
accident involving the use of inhalants.

In all, the drug testing policy covered more than 400 of Northwestern High 
School's 550 students and 250 out of the 300 students at Northwestern 
Middle School.

One month after the policy was instituted, Rosa Linke, then a junior at 
Northwestern High School, and her sister, Reena Linke, a freshman, along 
with their parents, filed a lawsuit against the district, claiming that the 
policy violated their privacy and constitutional rights. The family was 
represented by the Indiana Civil Liberties Union.

ICLU attorney Kenneth Falk, who argued the case before the appeals court, 
said Monday's ruling was a resounding victory.

"I think the court found that, absent some clear linkage between current 
(drug) problems and the need for drug testing, the court is saying all 
those policies are unconstitutional. After today, every school lawyer in 
Indiana will know that if their schools go ahead and (randomly) test, 
they're subject to lawsuits," he said.

The decision, he added, clearly balances the rights of schools against the 
rights of students not to be subjected to unwarranted drug testing.

In the case of random testing, "you end up balancing away people's 
constitutional rights. The fact that student 'A' may be using drugs, 
doesn't give grounds to test student 'B', " he said.

Noreen Linke called the verdict a vindication for her daughters.

"They're good girls who don't do drugs and they were appalled to be forced 
into signing on to this policy or risk being forced to quit (school 
activities). This whole policy was impractical and offensive," she said.

"The general assumption in this country is that you're innocent until 
proven guilty. We don't expect to be grabbed off the street and told we're 
going to be drug tested because it's in the best interest of the community, 
but we expect our kids to submit to that and be happy about it," she said.

Emmert, however, has a decidedly different opinion, claiming the ruling 
"will encourage kids to us alcohol and drugs because they know they're not 
going to be tested."

"I think parents are going to be disappointed because drug testing policies 
give their children a reason to say no," he said. "I guess the fact that 
kids are using drugs was an insufficient reason (for the court to allow 
testing). I'm somewhat baffled."
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