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Court Rejects Drug Testing of Athletes

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An Oregon school district's policy of testing student-athletes for illegal drugs violates their rights under the U.S. and state constitutions to be free from unreasonable searches, a federal appeals court has ruled.

The unanimous decision by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit this month came just days after the U.S. Supreme Court let stand a Colorado Supreme Court ruling that invalidated a University of Colorado program of random drug testing of student-athletes.

The recent rulings reverse a trend in which drug testing of student-athletes has been upheld as constitutional by several courts, legal experts said.

"Having ... drug-impaired children in our schools is tragic,'' said the opinion by U.S. Circuit Judge Ferdinand F. Fernandez in the Oregon case, Acton v. Vernonia School District. "However, it is not the type of potential disaster that has caused [courts] to find a governmental interest compelling enough to permit suspicionless testing'' for drugs.

Conflict Among Circuits

The Ninth Circuit Court's decision directly conflicts with a 1988 ruling by the U.S. Court of Appeals for the Seventh Circuit, which upheld an Indiana district's random-drug-testing program. The Seventh Circuit Court is the only other federal appeals court to address the issue in the context of student-athletes.

The Seventh Circuit's ruling in Schaill v. Tippecanoe County School Corporation "unduly minimized the privacy interests of students,'' Judge Fernandez wrote.

The Ninth Circuit covers nine Western states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The Seventh Circuit covers Illinois, Indiana, and Wisconsin.

Officials of the National Federation of State High School Associations, an umbrella organization of state governing bodies for interscholastic sports, said a relatively small number of K-12 districts nationwide test student-athletes for use of illegal drugs.

The threat of legal challenges and the financial costs of such testing have kept the number down, said John Heeney, the coordinator of the federation's drug-education effort.

"When you are looking at buying a team a new set of uniforms versus instituting a drug-testing program, most schools are going to elect to buy the uniforms,'' he said.

The 'Drug Cartel'

Vernonia district officials saw the threat of drug use among schoolchildren as a serious problem when they instituted the testing program in 1989.

Athletic coaches in the Oregon district's two schools believed some student-athletes were smoking marijuana, according to court documents. Moreover, school officials considered drugs to be a factor in the formation of rowdy groups of students with such names as "Big Elk'' and the "Drug Cartel.''

The policy adopted at that time by the school board required athletes to provide a urine sample to be tested for drugs. All athletes had to comply at the start of their seasons, and randomly selected athletes had to submit to later tests.

Students who tested positive for drugs could either undergo counseling and weekly testing or face suspension from sports for the current and following seasons.

James Acton, a 7th-grade student at Washington Grade School who tried out for the football team, challenged the policy in 1991. The boy's parents declined to sign a consent form for the drug testing, and he was suspended from athletics.

With the aid of a lawyer provided by the American Civil Liberties Union, which opposes "suspicionless'' drug testing, the Actons filed suit over the drug-testing policy in federal district court. They argued that the policy violated the Fourth Amendment's prohibition against unreasonable searches, as well as a nearly identical provision of the Oregon Constitution.

There was no evidence that James used drugs. The boy "is someone who just stood on his principles,'' said Thomas M. Christ, the Actons' lawyer.

"This kind of testing is ill-advised,'' Mr. Christ added. "I don't think this is the way to teach our children to say 'no' to drugs. Education is a much better approach.''

A federal district judge rejected the Actons' claims in 1992, but the Ninth Circuit Court panel reversed that position in its May 5 decision.

Not the Same Danger

Courts have upheld random testing of individuals whose drug-impaired job performance could endanger the lives of others, such as train engineers, nuclear-power-plant workers, and U.S. Customs drug-interdiction agents, Judge Fernandez noted. But "the extreme dangers and hazards involved in the prior cases are simply not present here,'' he wrote.

"The prospect that an athlete might hurt himself or a competitor is real enough, but it is not a risk of the same magnitude as an airplane or train wreck,'' Judge Fernandez added.

The district's concern with drug use among children and the voluntary nature of student athletics do not override students' expectations of privacy, the judge said.

Steve Giere, the principal of Vernonia High School, said he was disappointed by the decision because the testing program has helped stem drug use among the school's athletes.

"We have tested hundreds and hundreds of athletes, and we have only had one positive result'' in the three years since he became principal, Mr. Giere said. "It has been a deterrent.''

The school budgets about $4,000 a year for the drug tests, which cost about $14 each, he added.

Mr. Giere said the Vernonia school board was scheduled to meet late last week and could decide whether to appeal the decision to the U.S. Supreme Court.

But Mr. Christ, the lawyer for the Actons, said he did not believe the Supreme Court would accept an appeal of the Oregon case, even though the ruling creates a conflict with the Seventh Circuit Court.

The fact that the Ninth Circuit Court ruled against the Vernonia program on both federal and state constitutional grounds would make the case a less likely candidate for review, Mr. Christ contended.

The Supreme Court has considered other cases involving both federal and state constitutions in the past, however, and could decide to review the case if it wanted to resolve the conflict between circuit courts.

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