March 27, 2002

Supreme Court Takes on Issue of School Drug Testing

In a case that may decide how far schools can go in testing students for possible drug use, the United States Supreme Court listened March 19 to lawyers for a school district that required random testing of all students who participated in interscholastic extracurricular activities and a student who objected to being required to give a urine specimen as a condition for singing in the school choir.

In an hour of spirited questioning, it seemed to most observers that the Supreme Court was not troubled by the prospect of testing large numbers, or even all, students for drugs, but whether the Court will open the door to wider drug testing won’t be known for sure until a decision comes down later this year.

... "So long as you have a bunch of druggies who are orderly in class, the school can take no action? That’s what you want us to rule?" -- Justice Antonin Scalia

The case being argued March 19 was appealed to the Supreme Court by the board of education of the small, semi-rural Pottawatomie Independent School District No. 92, in Oklahoma, after the school district lost in the U.S. Court of Appeals for the 10th Circuit last year. The appeals court ruled that the school district’s policy of requiring students to agree to random, suspicionless drug testing as a condition for participating in interscholastic extracurricular competitions was not reasonable, because the school system had not shown that it has a specfic drug problem.

The issue of reasonableness is important, because the Fourth Amendment to the U.S. Constitution forbids “unreasonable search and seizure,” and the Supreme Court has consistently held that a drug test is a “search.”

There were echoes in the March 19 arguments of an earlier Supreme Court ruling, in 1995, when the Supreme Court approved of random, suspicionless testing of athletes in the Vernonia, Oregon, school system, largely because the district was able to prove that it had a serious drug problem and that athletes were at the heart of the problem, serving as role models for drug use to the rest of the student body. That made testing athletes “reasonable,” the Court decided.

In the new case, it did not appear that there was widespread drug use in Pottawatomie County, where the testing program while it was in operation found only four students with traces of drug use. But when attorney Graham Boyd, an American Civil Liberties Union lawyer representing the family of the student, raised that point, Justice Antonin Scalia asked sharply, “So long as you have a bunch of druggies who are orderly in class, the school can take no action? That’s what you want us to rule?”

“What I miss from your argument is any recognition that you’re dealing with minors,” Scalia said. The Pottawatomie school district was “trying to train and raise these young people to be responsible adults.” Making that same point, Justice Anthony Kennedy told Boyd. “It seems to me that if a school district is better than other districts, with less drug use, they’re entitled to keep it that way. You seem to be saying there has to be a great crisis, where we lose a few years to drugs.”

As to whether it is legitimate for Pottawatomie County to test students who participate in extracurricular activities, the school district argues that those students represent the school in interscholastic competitions, in the same way sports teams do. The school district’s policy is a “natural, logical, rational” application of the principles in Vernonia, school district attorney Linda Meoli told the justices.

The school district also argued that testing students who participate in extracurricualar activities is justified in that such participation is voluntary on the students’ part, unlike school attendance, which is required. Several justices had questions on that point, too. Justice David Souter doubted how “voluntary” extracurricular activities really are: Students “are under tremendous pressure to agree to it,” he noted. “They know perfectly well that they won’t get into a competitive college” if they don’t participate in extracurricular activities.

Associate Justice Ruth Bader Ginsburg said she found it illogical to tie drug testing to extracurricular activities because it seems likely that students involved in after-school activities pose less of a drug problem than “students who don’t do anything after school.”And Associate Justice Anthony Kennedy wondered what a school district could do to find drug abuse in students who were not participating in extracurricular activities.

The student who challenged the Pottawatomie drug testing policy has graduated and is now a freshman at Dartmouth College. The case argued before the Supreme Court is Board of Education of Independent School District 92 of Pottawatomie County, v. Lindsay Earls. A decision is expected later this year.