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Court gives school drug-testing an A.

In Board of Education of Independent School District 92 of Pottawatomie County v. Earls, (1) the Supreme Court upheld a school drug-testing program that was both broader and less justified than the program approved in 1995 in Vernonia School District 47Jv. Acton. (2) Yet only Justice Ruth Bader Ginsburg switched her vote, concurring in the 6-3 Vernonia ruling and dissenting in the 5-4 Earls decision. In my view, Ginsburg has it right.

In Vernonia, as Ginsburg summarized in her Earls dissent, the Court had found that the testing program was limited to student athletes, that "drug use increase[d] the risk of sports-related injury, and that Vernonia's athletes were the leaders of an aggressive local drug culture that had reached epidemic proportions." (3)

By contrast, the drug-testing program in Earls, instituted by the Tecumseh, Oklahoma, school district, extended to any student participating in extracurricular activities, including the academic team and Future Homemakers of America. (4) There was no evidence that these students were the leaders of a drug culture in the community, and the drug problem in general was, according to the district superintendent, "not major." (5) Because the school district had failed to demonstrate that there was a substantial problem among those subject to the testing program or that the testing program would redress such a problem, the Tenth Circuit had reversed the trial court and struck it down. (6)

The Supreme Court, in an opinion by Justice Clarence Thomas, reinstated the program. The majority noted that for "special needs" searches, as opposed to searches for general law enforcement purposes, probable cause need not be shown. Rather, the program must be shown to be "reason Craig M. Bradley is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at bradleyc@indiana.edu. able." The Court made it clear that when considering what was reasonable, it would be most lenient in the school context, with a "hefty weight" on the school's side of the balance. (7)

The Court simply wrote off as insignificant that the Earls program affected a much larger group of students than the one in Veronia and that students on the academic team, for example, have not sacrificed personal privacy the way athletes in locker rooms have. (8) The intrusion on privacy, the Court noted, was the same as in Vernonia, and the consequence of failing or refusing to take the test was only to limit the students' participation in extracurricular activities--not arrest, expulsion from school, or any other academic consequence. (9)

While the evidence of a substantial drug problem was thin, the Court refused to second-guess the district court's finding that there was one. Then, the justices held that a "demonstrated problem of drug abuse is not in all cases necessary to the validity of a testing regime." (10) However, the case relied on for that proposition, National Treasury Employees Union v. Von Raab, (11) involved drug tests of customs officials working in drug interdiction; those tests served a preventative need not present in Earls. Finally, although the potential for harm was not as critical issue for the Future Homemakers of America as it was for student athletes, the "variety of health risks [of drug abuse] for children" overcame that fact. (12)

Justice Stephen Breyer, whom one might have expected to defect from the Vernonia majority along with Ginsburg, wrote separately but joined the majority opinion. He emphasized the serious problem of drug abuse by teenagers, its deleterious effect on the public school system, and the fact that the program gives the "adolescent a nonthreatening reason" to resist peer pressure to use drugs. (13) Finally, the program "avoids subjecting the entire school to testing. And it preserves an option for the conscientious objector. He can refuse testing while paying a price (nonparticipation) that is serious, but less severe than expulsion from the school." (14)

By contrast, Ginsburg, writing for the four dissenters, found the limited nature of the program "perverse" because it "targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects." (15) Likewise, while student athletes might fairly be said to have agreed to a whole range of regulations, students participating in all other extracurricular activities should not be considered to have done the same. Such participation, she wrote, is "a key component of school life, essential in reality for students applying to college.... Students `volunteer' for extracurricular pursuits in the same way they might volunteer for honors classes. They subject themselves to additional requirements, but they do so in order to take full advantage of the education offered them." (16)

A fairer system

Certainly, any school district that wants to pursue an aggressive drug-testing program is in a bit of a bind. A fairer system than the one in Earls would be to test all students, rather than only those who want to participate in extracurriculars. But such a program would have lost at least Breyer's crucial fifth vote and been struck down. Even though a program that singles out extracurricular participants is "perverse," the only consequence in the Earls program, as Breyer pointed out, was to be banned from participation. A schoolwide program could be enforced only by expelling those who refused to be tested and could not, by definition, be avoided.

Ginsburg noted that the programs in Vernonia and Earls were alike in that they conditioned participation in certain activities by high school students on random urine testing. But there the similarities ended.

The Vernonia district sought to test a subpopulation of students distinguished by their reduced expectation of privacy, their special susceptibility to drug-related injury, and their heavy involvement with drug use. The Tecumseh district sought to test a much larger population associated with none of these factors. (17) If a school has a serious drug problem-and especially if athletes seem to be among the principal instigators of that problem-it does not seem unreasonable to condition participation in sports on drug testing. In contemporary America, where so many families are led by two working parents, parental supervision is reduced, making it reasonable for schools to assume a greater role in regulating student behavior.

But teachers or coaches cannot say, "Johnnie, if I ever hear that you've been smoking dope again, you're off the team," as parents can. Rather, a more objective system--drug testing--is the only way to control all but the most obviously intoxicated behavior. And the danger that intoxicated or hung-over athletes pose to themselves and others is real.

But tolerance for schools' efforts to prevent drug use by their students should not go so far as the school district did in Earls. Schoolchildren have Fourth Amendment rights, as the Court acknowledged. (18) If those rights have any meaning at all, they should allow a student to participate in Future Homemakers of America without being required to provide a urine sample as a precondition of entering a pie in a baking contest. One hopes that, despite the Supreme Court's stamp of approval, most school districts will refrain from teaching this aspect of chemistry at the local high school.

Of greater concern might be what this decision augurs for those of us who have left our halcyon high school days behind. Should we expect soon to be required to submit to urinalysis when we wish to renew our driver's license or serve on the parks board? Probably not. In Earls, the Court emphasized that "Fourth Amendment rights . are different in public schools than elsewhere; the `reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children." (19)

A 1997 case bolsters the Court's assertion that it will allow more intrusions into the privacy of schoolchildren than into that of other individuals. In Chandler v. Miller, the Court struck down a Georgia requirement that candidates for certain state offices submit to urinalysis within 30 days before qualifying for nomination or election. (20) As the Court, in an 8-1 decision written by Ginsburg, declared:
 Georgia asserts no evidence of a drug problem among the state's
 elected officials, those officials typically do not perform
 high-risk, safety-sensitive tasks, and the required
 certification immediately aids no interdiction effort.
 The need revealed, in short, is symbolic, not "special"
 as that term draws meaning from our case law. (21)


Much the same could have been said of the drug-testing program in Earls. Unfortunately, it was the dissent, rather than the majority, that said it.

Notes

(1.) 122 S. Ct. 2559 (2002).

(2.) 515 U.S. 646 (1995).

(3.) 122 S. Ct. 2559, 2571 (internal quotations omitted) (Ginsburg, J., dissenting).

(4.) In practice, it was confined to students participating in "competitive" extracurricular activities, but these included the groups mentioned. Id. at 2562.

(5.) Id. at 2572 (Ginsburg, J., dissenting).

(6.) Earls ex rel. Earls v. Bd. of Educ. of Tecumseh Pub. Sch. Dist., 242 F.3d 1264 (10th Cir. 2001).

(7.) Earls, 122 S. Ct. 2559, 2565 n.3.

(8.) Id. at 2565-66.

(9.) Id. at 2567.

(10.) Id. (internal quotations omitted).

(11.) 489 U.S. 656 (1989).

(12.) Earls, 122 S. Ct. 2559, 2568.

(13.) Id. at 2570 (Breyer, J., concurring).

(14.) Id. at 2571 (Breyer, J., concurring)..

(15.) Id. at 2572 (Ginsburg, J:, dissenting).

(16.) Id. at 2573 (Ginsburg, J., dissenting).

(17.) Id. at 2577 (Ginsburg, J., dissenting).

(18.) Id. at 2564.

(19.) Id. at 2565, quoting Vernonia, 515 U.S. 646, 656.

(20.) 520 U.S. 305 (1997).

(21.) Id. at 321-22.
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Author:Bradley, Craig M.
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Date:Dec 1, 2002
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