Pubdate: Mon, 08 Jul 2002
Source: Washington Times (DC)
Copyright: 2002 News World Communications, Inc.
Contact:  http://www.washingtontimes.com/
Details: http://www.mapinc.org/media/492
Author: Bruce Fein
Note: Bruce Fein is general counsel for the Center for Law and 
Accountability, a public interest law group headquartered in Virginia.

A STUDENT DRUG TESTING DRAGNET?

Line drawing is the art of Fourth Amendment construction. It speaks in 
chiaroscuro, not in prime colors. "Unreasonable searches and seizuress" are 
prohibited; but no specific clues are provided to demarcate the reasonable 
from the unreasonable. It is all a matter of degree. To be weighed are the 
urgency of the government's search or seizure justification, its purpose, 
and the stigma, humiliation or intrusion on personal intimacies suffered by 
the target.

On that score, the Supreme Court's 5-to-4 decision in Board of Education of 
Independent School District No. 92 of Pottawtomie County vs. Earls (June 
27, 2002) sustaining confidential drug testing of students participating in 
extracurricular activities seems unworrisome.

Student drug abuse is widespread. According to the Department of Health and 
Human Services, the percentage of high school seniors using any illicit 
drug climbed from 48.4 percent in 1995 to 53.9 percent in 2001 and 41.7 
percent to 49 percent for marijuana alone. Rural communities evocative of 
Norman Rockwell have not escaped the drug- abuse epidemic.

In 1998, the school district responsible for administering Tecumseh, Okla., 
public schools fashioned a student activities drug-testing policy. It 
requires consent from middle- and high-school students to testing for 
illegal drugs as a condition to participation in any extracurricular 
activity. The policy did not promise a miraculous ending or vertical fall 
in drug abuse among adolescents. It did, however, aim to dent the problem 
by deterring some who craved extracurricular excitements and by cuing 
students that drug use was more to be deplored than imitated. Any lessening 
of an evil is laudatory, even if greater success would be coveted.

The drug testing policy in Tecumseh was no dragnet for dispatching students 
to prison or even school discipline. Access to the test results are denied 
law enforcement authorities. The tests occasion no school penalties or 
academic demerit. They are separated from a student's educational records 
and shared with school personnel only on a case-by-case "need to know" basis.

The stigma or embarrassment risked by a drug-test failure is generally 
insubstantial, but not chimerical. For example, if an Ursa Major star 
football quarterback suddenly vanished from the roster like the Cheshire 
cat, drug use would be the self-evident explanation even to the dullest of 
the dull. In the ordinary case, however, the sole loss for testing positive 
is nonparticipation in extracurricular endeavors.

And even imposition of that disadvantage bespeaks mildness and 
understanding of teen-age rebelliousness.

Under the policy, after an initial positive test, the school arranges a 
meeting with a student's parent or guardian. Student extracurricular 
participation may continue if within five days of the meeting drug 
counseling is undertaken and a second specimen is provided within two 
weeks. Even after a second positive, the student receives but a 14-day 
suspension from extracurricular programs, plus four hours of drug- abuse 
counseling and monthly drug testing.

Only after a third strike do extracurricular privileges cease for the 
remainder of the school year or 88 school days, whichever is longer.

The drug testing is minimally intrusive or embarrassing. Urine samples are 
routine in normal private doctor health checkups. No obloquy or suspected 
depravity is awakened. Under the policy at Tecumseh, a faculty monitor 
stands outside a closed restroom stall while the student produces a sample. 
The monitor is necessary to prevent tampered specimens and to establish an 
accurate chain of custody. The sample is poured into two bottles, sealed, 
and placed in a mailing pouch. The entire process from beginning to end 
should be untraumatic for the typical student, occasioning no more anxiety 
or stress than passing through safety detectors at public buildings or 
airports.

Drug abuse endangers a student's personal health and may menace fellow 
classmates. Public school authorities are surrogate parents during the 
school day, and testing for drugs among extracurricular participants seems 
a reasonable exercise of their "in loco parentis" obligations. They might 
be civilly liable for negligence for failing to test if a student drug 
abuser caused injury to himself or others during athletic competitions or 
otherwise.

Detractors of the Earls precedent fret that it creates a slippery slope to 
testing all students for illegal drugs in cahoots with state and local 
police. A long trail of teen-agers marching to bleak prisons filled with 
hardened inmates is portended. But to paraphrase Sam Johnson, slippery 
slope arguments are the last refuge of lawyers on the wrong side. They are 
as unpersuasive as embracing anarchy because any scheme of government might 
descend into Stalinist totalitarianism.

But the chief distinction between civilization and barbarism is knowing 
when to stop. The exact point in each case will be tolerably inexact, like 
the demarcation between day and night. The small area remaining for dispute 
should make any solution reasonably acceptable to the mainstream. Justice 
Oliver Wendell Holmes crafted the answer to those who would denounce Earls 
as a harbinger of a public school Gestapo in Panhandle Oil Co. vs. Knox (in 
1928): "not while this court sits."
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