Source: Houston Chronicle Contact: http://www.chron.com/ Pubdate: Sun, 15 Feb 1998 Author: Kim Cobb DRUG TESTING POLICY IN MIAMI'S SCHOOLS IS BROAD IN SCOPE BUT PURELY VOLUNTARY MIAMI -- When the afternoon bell rings at Coral Park High School, 3,760 kids flood the hallways with a day's worth of pent-up energy, opening and slamming locker doors before they squeeze out of the crowded building. How many of them are using drugs or alcohol? In a couple of months, Dade County Public Schools will have in place a pilot program for random drug testing that may provide some answers for their parents, and to a lesser degree, the school district. Other schools around the country are watching closely as Dade County, the fourth-largest district in the country, attempts this controversial, voluntary drug testing policy. Miami parents must grant permission for their children to be tested, and students still will have the right to refuse. School officials also are watching a small district in Rushville, Ind., where the high school is screening the majority of its population by requiring drug testing for students participating in any extracurricular activities. "This is still an evolving area so a lot of different programs have to be tested in the courts until we can be sure what is allowed," explained M. David Gelfand, professor of constitutional law at Tulane Law School. Drug testing is becoming more common in private schools, where parents often seek out a program with stricter discipline and fewer liberties than public school. A parochial high school in Louisiana made headlines in recent months with its decision to test students for drug use through hair analysis rather than the more typical and less costly urinalysis. In public schools, though, the legal question becomes whether a student, who is there by right rather than choice, can be compelled to allow the search that is inherent in random drug testing. The Fourth Amendment to the Constitution protects the individual against unreasonable searches and seizures. The Supreme Court's last word on the subject was a 1995 ruling which allowed a school district to force student athletes to submit to random drug testing before they are allowed to participate in sports. The Indiana school district's policy already has been approved by the 7th U.S. Circuit Court of Appeals, although the American Civil Liberties Union has requested a rehearing and the case may ultimately be headed for Supreme Court review. In New Orleans, District Attorney Harry Connick is so enamored of school drug testing that his office is hosting a conference in April to pitch its merits to both public and private school administrators. Mandatory drug testing is "not an unreasonable search under the circumstances," Connick says. Proponents like Connick often cite the pursuit of safety and a healthy learning environment for all students as legal justification for testing public school students. Airport metal detectors are a similar example of searches made reasonable by circumstance, Connick said. The 7th Circuit's decision to uphold the Rushville school district appears to expand the boundaries set by the Supreme Court in 1995, Connick said, and he calls it a step in the right direction. He thinks the Miami policy may be overly broad to pass constitutional muster, an opinion shared by other legal analysts, but he agrees with what they're trying to do. Chosen at random Miami-Dade parents who want their teen-agers tested will have to sign up ninth through 12th-grade children for what amounts to a drug testing lottery. And when the student's number is chosen and he or she is instructed to report for testing within 24 hours, the student still will have the right to refuse the test. The parents are notified of the refusal and in the case of testing, must accompany the child to the off-campus testing site. The results of the individual tests will be made known only to the parents, though the school district will be notified how many students out of the total tested positive. How many parents will sign up their children and how many students will then agree to be tested is anybody's guess. And since individual results will be private there will be no disciplinary action by the district against students who test positive. "I see a flaw in their plan in that if you want to be tested you can volunteer, but if you don't, there's no ramifications," Connick said. "That's not, to me, going to be very effective." "Hopefully they can work it out. I support it," Connick said. "Drug testing is a cornerstone of solving the drug problem." "When you see what got adopted (in Miami) the phrase comes to mind that a camel is a horse that was created by committee," observed Howard Simon, executive director of the Florida ACLU. The ACLU was threatening to take the district to court over the original policy proposed by 26-year-old school board member Renier Diaz de la Portilla until the board incorporated the student's right to refuse the tests. Diaz del la Portilla concedes that the policy, scheduled for board ratification this week, is not as strong as he wanted, but he thinks it can be a tool to open communication between parents and children. "My response is, great idea! But why go through this sham of a policy?" Simon said. "You want to initiate communication between parents and their children? Tell teachers to call parents when they think their children are behaving erratically and may be using drugs." "This program is a foot in the door," Diaz de la Portilla said. "What we have to look at in this first year is the level of satisfaction in the community. There's a deterrent aspect. There's no way to measure how many students will be dissuaded from using drugs by this policy." Alex Annunziato, president of districtwide student government, says the most common reaction from students about the drug policy is, "Why, what's the point? His proposal does not deter drug use." "Mr. Diaz de la Portilla would have you believe (the policy) fosters communication, but it fosters confrontation," Annunziato said. The only students he knows who say they will agree to be tested are those who are afraid they'll be labeled "druggies" if they don't, he said. The cost of testing If it costs $200,000 to test 5,000 students over about three months in this pilot program, Annunziato asked, how much will it cost to test students for a year? "We don't even have enough textbooks." "I think it's an invasion of privacy," said 18-year-old Louis Flores, a junior at Coral Park High School. "You're old enough to know if it's good or bad for you. I have friends who use drugs. As a matter of fact, I have friends who sell drugs. But that's their business." Esperanza Cuevas, a 17-year-old senior at Coral Park, wonders what the point of drug testing is if the school system is not going to do anything about those students who test positive. "It's a waste of money," she said. Elizabeth Rodriguez, an 18-year-old senior and editor of the yearbook said she doesn't think parents should learn about their children's drug use through the school. "It should be through their relationships with their kids," she said. A significant number of students are under the influence of drugs during the school day, she concedes, adding that it's disruptive in some classrooms. It is not uncommon for kids to go off campus to do drugs during their lunch break, she said. Still, she said, Coral Park is one of the district's better high schools. "There are few fights. It's quiet." Diaz de la Portillo agrees that the open campus policy at many high schools make it easy for children to do drugs. But the schools are too large to attempt to feed all the students in the cafeterias, he said. Coral Park is not the largest high school in the district -- another campus has more than 5,000 students. The school district spends about $4.6 million on drug education programs. Diaz de la Portilla would like to see students who refuse to take the drug tests be forced to enroll in a special, intensive drug education program. And he also wants the board to eventually approve random drug testing for student athletes, something the school district's attorneys have advised against. Tulane University's Gelfand advises that the "quasi-consensual" policy may be legally problematic as written since a student's refusal to take the test would be perceived as an admission of guilt by the parents and perhaps the school district. "We can't be fearful of lawsuits," Diaz de la Portilla said. "We've got to do the right thing. In public education you're always getting threatened with lawsuits." ACLU attorney Simon warns that trying to broaden the drug testing policy could get very costly for the district. "If he does that, then all the money that should be spent on drug education will probably be spent stupidly on lawyers and court costs. That would be the real tragedy in all this," Simon said. 2,000 students tested The random drug testing policy in Rushville, Ind. has been in place since September 1996 and approximately 2,000 students in the district's only high school have been tested. Attorney Rodney Taylor, who represented the school board before the 7th Circuit Court of Appeals, says the district is keeping confidential the number of students who have tested positive for drug use, but says that there has been no noticeable drop in participation in extracurricular activities in an attempt to avoid drug testing. "It's totally nonpunitive," Taylor said. Once a student who tests positive for drug use is retested and determined to be drug-free, he or she is allowed to rejoin extracurricular activities, he said. "One of the things we've learned is it provides a peer pressure excuse," Taylor said. "The kids can say I don't want to try this because I want to be on student council, my number could come up. It provides a built-in excuse for these kids." Tulane's Gelfand says he's not as skeptical about the constitutionality of Rushville's policy as he is about Miami- Dade's because it's not as broad-based. A student could avoid the whole drug testing question by avoiding extracurricular activities, he said. "It's still a bit of a step to say being on the chess team is like playing football," Gelfand said, referring to the Supreme Court's acceptance of drug testing athletes. A person who does drugs and plays football may be a danger to himself and others, Gelfand said, adding, "But it's possible the court may find that acceptable." "But this seems like a strange way to go about it, because the person whose extracurricular activity is doing drugs is going to be chased out of other extracurricular activities," Gelfand said. "I'm not sure that as a policy matter it makes good sense." Copyright 1998 Houston Chronicle