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Tennessee School's Drug-Test Policy Challenged by Civil-Liberties Group

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School officials at a state-run school for abandoned and neglected children in Tennessee last month began requiring random urine testing to see if students are using marijuana, a move that violates the students' constitutional rights, American Civil Liberties Union lawyers said last week.

The testing program is one of only a few in the nation of which aclu officials are aware, and is believed to be unique in that the testing is conducted at random without "reasonable" cause. It also appears to be the first instance of such drug testing that has actually taken place at a public school.

'Murky' Legal Issue

While courts in the few other similar cases known have moved4quickly to bar such testing at least temporarily, the situation at the Tennessee Preparatory School is "murky" because the students at the school are wards of the state, said Hedy M. Weinberg, executive director of the Tennessee aclu

Oscar H. Few, director of student life at the 235-student boarding school in Nashville, said, "We really didn't ask anybody about starting this program because we felt that since we had custody of the youngsters [the testing] wouldn't be a problem."

Unreasonable Searches

But the Fourth Amendment's protection against unreasonable searches prohibits such drug-use testing by state officials regardless of their role as guardians, said Richard Emery, staff counsel for the New York Civil Liberties Union. "Saying that they're acting as parents is just nonsense, complete garbage," he said.

It is illegal for the state to search a student without a "reasonable" suspicion that the student is using drugs, Mr. Emery said.

The U.S. Supreme Court ruled last January in New Jersey v. T.L.O. that there must be "reasonable grounds for suspecting that a search will turn up evidence that the student has violated or is violating either the law or the rules of the school."

The Court also ruled that the search must not be "excessively intrusive." Both blood testing and urinalysis are considered very intrusive searches, according to a lawyer for the National Education Association.

The Tennessee Preparatory School has discontinued the use of urinalysis while the issue is considered by officials of the state education department, Mr. Few said. In a recent statement, Nelson Andrews, chairman of the Tennessee Board of Education, warned that any random testing of students for drug use must be conducted with "extreme caution."

The school's drug-testing program, Mr. Few said, is designed to deter drug use at the school.

"We do have a drug problem here," said Mr. Few. "Our kids were raised on the side streets and back alleys and have been exposed to everything that goes on there." According to Mr. Few, 90 percent of the students in the state school have used drugs.

On Sept. 18, 10 male students in the 12th grade were tested for use of marijuana. The test results were negative for all of the students, Mr. Few said, noting that two of the boys had been disciplined within the previous six months for using drugs at the school.

In addition, Mr. Few said, since school officials warned the students in early August that drug-use testing would be conducted randomly throughout the year, only one student has been disciplined for drug use. Prior to the announcement, at least one student a week was disciplined for drug use, he said.

The school does not have an educational program to prevent drug abuse due to "the cost," Mr. Few said. However, students who are disciplined repeatedly for drug use are sent to a mental-health institution for professional counseling.

In a related Arkansas case, U.S. District Judge Franklin Waters ruled recently that the Arkadelphia school district could not require students suspected of drug use to undergo urine and blood testing. Judge Waters found the test "intrusive" and ruled that it violated students' due-process rights. School officials were expected to appeal the ruling this week.

In New York State, the Suffolk County Supreme Court this past summer ruled that a policy of the Patchogue-Medford Public Schools that would require that new teachers and teachers seeking tenure submit to urinalysis to detect drug use, violated the teachers' Fourth Amendment rights.

Justice Thomas M. Stark issued a permanent injunction prohibiting implementation of the drug testing, but school officials have appealed his decision.

Related Litigation

In Bergen County, N.J., a state judge has issued a temporary restraining order preventing a drug-abuse-prevention policy adopted by the school board this summer from taking effect. The board policy would require all students at the Becton Regional High School to undergo urinalysis before being allowed to attend classes.

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