Pubdate: Sun, 14 Jul 2002
Source: Rome News-Tribune (GA)
Copyright: 2002 Rome News-Tribune
Contact:  http://www.romenews-tribune.com/
Details: http://www.mapinc.org/media/1716
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

STRANGE THINKING

THE NEED for public schools to keep drugs off their campuses trumps the 
privacy rights of students in the drama club, or so the U.S. Supreme Court 
has ruled. The justices, 5 to 4, decided that drug tests were permissible 
as a condition for participating in any extracurricular activities that 
involve interscholastic competition. That's things like band, chorus, 
debate teams, theater, the Future Homemakers of America and so forth. 
Student athletes were already subject to such tests because of an earlier 
court ruling. However, in this decision the justices have apparently kept 
intact the privacy rights of students who don't participate in anything or 
at least nothing involving any competitive aspects. That's actually a 
pretty weird decision and even weirder result. Perhaps half the student 
body will be liable to be tested at any time while to do the same to the 
other half would remain unconstitutional.

IT GETS ODDER still, for two of the justices in the majority actually 
avoided passing judgment on the Pottawatomie County, Okla., school policy 
that triggered this case. That school, by the way, tested 505 students and 
had only three positive results (all involving athletes). Justice Clarence 
Thomas, who wrote the majority opinion, and Justice Stephen Breyer, in a 
concurring opinion, both limited their reasoning to the motive involved - 
schools keeping bad things from happening - and not to the actual policy. 
It is a policy that Justice Ruth Bader Ginsburg, in dissent, branded "not 
reasonable ... capricious, even perverse" while noting the school district 
could not even show it had a drug problem on campus. She also made the 
rather obvious point that school officials were thus going after the 
students actually least likely to be using drugs. This is a case where the 
court may have stumbled by seeking to address a social condition instead of 
the law. If the court had said any student could be tested it would 
probably have won more popular support, even though there are some very 
troublesome legal niceties involved in that approach. The concept that just 
by sending a child to school a parent has granted tacit approval for that 
child to be tested for drugs is a tough one to defend, particularly in a 
society that has laws putting parents in a heap of hurt if they don't send 
their children to school.

THAT'S WHY the majority came up with thinking that "testing students who 
participate in extracurricular activities is a reasonably effective means 
of addressing the school district's legitimate concerns in preventing, 
deterring and detecting drug use." In other words, only students who want 
something more from school than an education, who want the privilege of 
participating in something extra, open themselves up to mandatory drug 
testing. This slides past the element of coercion because students now 
would willingly opt for drug testing by signing up for band. No doubt other 
school districts will now imitate this Oklahoma practice. If they do, one 
predictable result will be that the drug problems, if any, will remain 
largely untouched and undetected. At the same time, as Justice Ginsberg 
warned, by using a quotation directly from a 1943 Supreme Court decision, 
there is a need for "scrupulous protection of constitutional freedoms of 
the individual if we are not to strangle the free mind at its source and 
teach youth to discount important principles of our government as mere 
platitudes."

THE PENDING PLATITUDE to which she refers is the Fourth Amendment to the 
Constitution that bars any citizen from being subject to an unreasonable 
search and seizure. It is a real stretch of the legal imagination to equate 
the desire to play a trumpet or sing in the chorus as being a "reasonable" 
cause for a citizen to be seized and have their bodily fluids searched.
- ---
MAP posted-by: Ariel