Source: Indianapolis Star
Contact: starnews.com
Pubdate: 9 Sep 1998
Author: John M. Flora 

- -- The 7th U.S. Circuit Court of Appeals ruled Wednesday that Anderson
Community Schools' drug-testing policy is unconstitutional.

The decision came five months to the day after Indiana Civil Liberties
Union attorney Ken Falk argued against the expulsion of Anderson High
School freshman James R. "Buddy" Willis II before the appeals court in
Chicago.Buddy, 15, was suspended for five days Dec. 10 for fighting with
another student. Under a drug-testing policy adopted in August 1997, he was
directed to take a drug test when he returned to school Dec. 19.

He repeatedly refused the test and eventually was barred from school for
the rest of the 1997-98 school year, while Falk and school attorneys
battled over the constitutionality of the drug-test policy.The policy,
modeled after one adopted in early 1997 in Carmel schools, is based on a
presumed link between student misbehavior and drug use.

Students suspended for three or more days for any rule infraction must take
a drug test before being readmitted to school. Students who test positive
for drugs are not punished, but their parents are notified, and they are
referred to counseling.Falk argued unsuccessfully in January before U.S.
District Judge John Tinder in Indianapolis that the connection between
breaking school rules and student drug use is not strong enough to override
Fourth Amendment constitutional guarantees against unreasonable search.

In their unanimous ruling, federal appeals court Judges Walter Cummings,
Richard Cudahy and Kenneth Ripple in Chicago noted that during the first
semester in which the policy was in effect at Anderson High School, only 18
percent of all students suspended for fighting tested positive for
drugs.They further observed that Philip Nikirk, dean of students at
Anderson High, testified that when he saw Buddy minutes after the fight, he
noticed "nothing at that time that would give me reasonable suspicion" that
the teen was on drugs.

"We . . . cannot find that the (school) Corporation's data is strong enough
to conclusively establish reasonable suspicion of substance abuse when a
student is suspended for fighting, or that it was unreasonable for Dean
Nikirk to conclude that Willis' conduct did not give rise to individualized
suspicion," they wrote.In the absence of reasonable suspicion, the court
held, school officials are precluded from drug testing.

School attorney David Gotshall said he could not comment on the decision
until he has a chance to review it.School," a relieved Buddy Willis said
Wednesday night.Pointing out that he is repeating his freshman year and
remains ineligible for sports because of the expulsion, he said, "I've
suffered harm that will not be able to be fixed by a snap of the fingers."

His father, James "Randy" Willis, was the only member of the public to
speak against the drug policy when it came before the School Board in
August 1997.That night, the father warned the board, "Get ready, folks. It
won't be the drug users that are suing you. It'll be the innocent people."

"The ball is in the school corporation's court," the elder Willis said
Wednesday night, acknowledging that it is up to school officials to decide
whether to continue the fight to the U.S. Supreme Court.

1998 Indianapolis Newspapers Inc. AP materials 1998 Associated Press. All
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Checked-by: Pat Dolan