Pubdate: Wed, 20 Mar 2002
Source: Washington Times (DC)
Copyright: 2002 News World Communications, Inc.
Contact:  http://www.washingtontimes.com/
Details: http://www.mapinc.org/media/492
Author: Frank J. Murray
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)
Bookmark: http://www.mapinc.org/youth.htm (Youth)

HIGH COURT TOLD DRUG TESTS REASONABLE FOR ALL STUDENTS

A top government lawyer yesterday backed an Oklahoma school district's drug 
testing of high school pompom squads, chess teams and choirs by telling the 
Supreme Court it would be constitutional to test all students for drug use.

That assertion -- carefully planned in case the question was asked -- went 
far beyond the case before the justices and represented a vastly broadened 
official view of "reasonableness" in searching high school students.

Deputy Solicitor General Paul D. Clement suggested the entire student body 
could be tested if a problem is suspected -- not just athletes as current 
rulings permit, or pupils in voluntary extracurricular programs as 
Oklahoma's Pottawatomie County Board of Education requires.

"We're not saying this is constitutional because it's consensual," he said.

Recalling that urine testing was approved in 1989 for U.S. Customs agents 
because they face extraordinary temptation on the drug war "front lines" 
from the supply side, Mr. Clement said, "Children today are on the front 
lines of the drug problem on the demand side."

The American Civil Liberties Union said Tecumseh High School's random drug 
testing of students involved in extracurricular activities violates the 
Constitution's guarantee against unreasonable searches or seizures. It is 
backing two students who sued the school system.

The court appeared sharply divided over the relative importance of the drug 
threat versus sacrificed civil liberties.

School board lawyer Linda M. Meoli said Tecumseh's program falls within 
boundaries the court set in its landmark 1995 Vernonia decision, allowing 
sports teams to be tested because of injury risks and discipline problems 
with team members.

"I don't see how you don't lose," Justice David H. Souter told Miss Meoli 
when he cited official reports before 1998 that found no such problems.

"Were they lying?" he asked, saying only three of 505 students tested 
positive since then, all athletes.

"The existence of the policy might be expected to deter drug use," observed 
Chief Justice William H. Rehnquist.

"We'll never know, will we?" Justice Souter responded.

Justice Ruth Bader Ginsburg was troubled by the logic of testing eager and 
law-abiding students whose extracurricular activities include band and 
Future Farmers of America -- "a group that is less of a problem than the 
rest of the students who are idle."

Graham A. Boyd, an American Civil Liberties Union lawyer from New Haven, 
Conn., said the line must be drawn at "individualized reasonable suspicion."

"There's nothing about the band or the choir that is dangerous," Mr. Boyd 
said, recalling that the prospect of death figured in previous 
drug-screening decisions, drawing a quick retort from Justice Antonin Scalia.

"You think life and death is not at issue in the fight against drugs? ... 
How about death from an overdose?" Justice Scalia asked.

A congressman seated alone in the front row had no misgivings about 
suggestions that all students be tested.

"It's the only thing that works. It's the only thing that worked in the 
military," said John E. Peterson, Pennsylvania Republican and member of the 
Speaker's Task Force for a Drug-Free America. The task force supports a 
bill to let the government pay for drug tests.

Miss Meoli, of Oklahoma City, said one factor blocking wider testing is the 
constitutional view that students must attend school so searching as a 
condition of admission would be involuntary.

"If we could fashion a way to do it, I believe a majority of the school 
boards would be behind it," she conceded.

In its written brief -- whose signers include Mr. Clement and Solicitor 
General Theodore Olson -- the Bush administration asked the court to "leave 
schools flexibility to adopt reasonable measures, like the policy in this 
case, to prevent illicit drugs from gaining a stronger hold on their 
communities, and protect school children from the life-altering perils of 
drug use."

But it was learned that officials believe schoolwide testing would be 
defensible before the Supreme Court.

Justice Anthony M. Kennedy argued for giving school boards more latitude in 
deciding when drug testing is needed and not shutting down testing because 
few positive results are found.
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MAP posted-by: Jay Bergstrom