Pubdate: Fri, 12 Oct 2007
Source: Honolulu Advertiser (HI)
Copyright: 2007 The Honolulu Advertiser, a division of Gannett Co. Inc.
Contact:  http://www.honoluluadvertiser.com/
Details: http://www.mapinc.org/media/195
Author: Richard S. Miller
Bookmark: Richard S. Miller is a professor of law, emeritus, for the 
University of Hawai'i. He wrote this commentary for The Advertiser.
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

DRUG TESTS, SEARCHES ERODE OUR FREEDOMS

Allowing sniffing dogs in the schools to seek out evidence of drugs
and/or requiring either teachers or students to submit randomly to
humiliating drug testing tells both our teachers and our students that
they are not to be trusted or respected and creates an atmosphere of
hostility and intimidation.

That there is little sign "of students rising up in indignation over
proposed searches," - as David Shapiro stated in his Oct. 10 Volcanic
Ash column - is not a reason to proceed. Rather, it is a dreadful
warning sign of kids' sad ignorance of or insensitivity to erosions of
our freedoms produced, perhaps, by a failure to teach them adequately
about our constitutions and our Bill of Rights.

Shapiro is often right, but this time he's really wrong. While there
may be justification randomly to test those who are obviously put into
situations where drug or alcohol intoxication might cause serious
accidents and death, as with automobile drivers on weekend nights,
heavy construction workers and airline pilots, there is no adequate
evidentiary basis for deviating from traditional requirements that
invasive searches of students and teachers should be allowed only if
based upon probable cause.

Because those seriously impaired by the influence of drugs or alcohol
will usually display telltale physical characteristics or conduct,
they can be discovered and then lawfully searched or tested.

Further, the post-9/11 life-saving necessity to search passengers and
their baggage before boarding an airplane cannot be equated to the
school situation.

We could probably put a big dent in drug use and manufacture and in
crimes involving unregistered firearms if we allowed the police to
search anyone's dwelling or anyone's person any old time. Why don't we
do it?

It would also be a big help if the police could stop and search our
cars whenever they wish. In the fight against crime, it would help if
the courts would allow illegally seized evidence to be used in
evidence against a criminal defendant. Why don't we do those?

Our forefathers in the colonies rebelled against the English rulers
who claimed the right to search anyone's house at any time to uncover
subversive activity or crime. Were our forefathers stupid?

When we toy with deterring unlawful activity by legalizing invasions
of personal privacy, absent reasonable or probable cause, we are
toying with authoritarianism. Do we want to teach our kids that that's
OK? I think not.

Keep in mind that when those in authority are free to do random
searches of persons and houses, they sometimes concentrate on certain
"disfavored" groups or minorities. Sometimes they just single out
people they dislike. Surely, all of us who know about World War II
have knowledge or recollection of horrible instances of that.

Recall, also, that those conducting the searches and drug tests may
not be above "planting" illegal things on the property or persons of
those they disfavor or dislike. What's to stop them if we remove the
requirement of proof of reasonable suspicion or probable cause?

Lastly, there is very serious doubt whether kids who are told about
random searches or dog sniffing will leave drugs or any other
dangerous material in their lockers. Kids are not too dumb to find
other hiding places for illegal stuff. There are similar doubts
whether random drug testing of teachers or students, or the students'
lockers, will be effective in reducing drug sales or use or just shift
such activities to different times and venues.

We seem to be in a period of unusual hysteria - an unfortunate byproduct,
perhaps, of the fallout from 9/11. In such times we need to take heed of
these wise words, attributed, rightly or wrongly, to Benjamin Franklin:
"Those who would give up essential liberty to purchase a little temporary
safety, deserve neither liberty nor safety."
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MAP posted-by: Richard Lake