Washington
The U.S. Supreme Court last week took up the issue of drug testing of public school students for the first time, and came across as sympathetic to schools’ efforts to battle the problem of youth drug abuse.
“Wouldn’t it be reasonable for us to say there is a dangerous drug problem?” Associate Justice Anthony M. Kennedy asked at one point during the March 23 oral arguments in Vernonia School District v. Acton (Case No. 94-590). He suggested that schools might therefore be justified in taking steps to “keep it out.”
But it was not at all clear from the hourlong session that the Justices would vote to uphold the rural Oregon district’s program of random drug testing for its middle school and high school athletes.
The program was challenged in 1991 by James Acton, whose parents refused to sign a consent form for the drug testing that would have allowed him to join the 7th-grade football team.
The Actons contend that random drug testing violates the Fourth Amendment’s prohibition against unreasonable searches. The U.S. Court of Appeals for the Ninth Circuit agreed, striking down the random-testing program last year. (See Education Week, 5/18/94.)
Associate Justice Sandra Day O’Connor asked the lawyer for the Vernonia district why administrators did not first try a testing program based on actual suspicion that an individual student was using drugs.
“Isn’t that pretty much what the Fourth Amendment was designed to require?” she asked.
Timothy R. Volpert, the district’s lawyer, responded that a testing program based on individualized suspicion would present problems “because it is so difficult to detect for certain” that a student might be using drugs.
Justice O’Connor replied: “A reasonable suspicion doesn’t mean for certain, does it?”
‘A Serious Threat’
Other Justices also expressed concerns about the program, which the district began in 1989 after school officials linked an increase in classroom disruption to what they believed was growing drug abuse among students. Some students were arrested for drug possession, and student gangs with names such as the “Drug Cartel” boasted of drug use.
“The school district has established [that there is] a serious threat to its ability to educate its students,” Mr. Volpert said.
But Associate Justice David H. Souter said that “hard evidence” of a major drug problem at the district’s two schools was “on the thin side.” He asked whether the district’s arguments would support random drug testing of the entire student population, rather than just student athletes.
“Hypothetically, we could have made the case [for broader testing] based on these facts,” Mr. Volpert said, and suggested that a random-testing program for all students could be upheld under the Fourth Amendment.
In court papers, the district had defended singling out student athletes with the argument that interscholastic sports is a voluntary activity and that students give up some expectation of privacy in order to participate. The district also argued that its student athletes were perceived as leaders by other students and that deterring drug abuse among them would benefit all students.
Associate Justice John Paul Stevens wondered whether the urinalysis of student athletes in Vernonia included a test for steroids, “which athletes might be more inclined to take.”
Mr. Volpert said the district did not test for steroids because of the added costs involved.
‘Suspicionless’ Testing
James Acton is now a 15-year-old sophomore at Vernonia High School, where he plays on the basketball team. His parents eventually signed a consent form so he could play basketball while his case moved through the courts. The drug-testing program has been suspended since the Ninth Circuit ruling last year.
The young man and his parents traveled to Washington last week for the arguments. The Actons have a jewelry and craft business in Vernonia, a logging community of about 3,000 residents, about an hour north of Portland.
The Actons have been represented by the American Civil Liberties Union, which has taken a strong stance against “suspicionless” drug testing.
Thomas M. Christ of the Oregon chapter of the A.C.L.U. told the Justices that if testing of athletes is upheld, it might not be long before there is “universal drug testing.”
“There should not be a different standard for students than adults,” he said.
In a pair of cases from 1989, the Supreme Court upheld mandatory drug testing of train engineers involved in accidents and U.S. Customs Service agents involved in drug interdiction. In both of those cases, the Court concluded that the employees subject to testing were involved in sensitive safety- or security-related activities.
But the cases also made clear that surrendering urine for drug analysis was a search under the Fourth Amendment, and they described forced urinalysis as an intrusion of privacy that should be allowed only under compelling circumstances.
Mr. Christ argued that the Vernonia district’s program was much more intrusive than the testing programs upheld in the 1989 cases. Student athletes in Vernonia must produce a urine sample under the observation of a school official and must disclose any prescription drugs that might show up in the urinalysis, he said.
Privacy Concerns Rejected
However, some Justices last week dismissed the privacy concerns associated with producing a urine sample.
Chief Justice William H. Rehnquist said to Mr. Christ, “How much privacy is there in a boys’ locker room, with a bunch of urinals lined up against the wall and guys walking naked from the shower?”
Associate Justice Stephen G. Breyer noted that most medical examinations include urinalysis.
“It’s not the mere act,” Mr. Christ responded. “We all urinate, that has to be conceded.”
The usually staid courtroom erupted in laughter as Mr. Christ, who had endured a barrage of pointed questions, added: “I might do so here.”
Mr. Christ later conceded that it was the disclosure of the chemical content of a person’s urine sample, and not just the exposure involved in producing it, that was a privacy concern. To illustrate that point, he said that the A.C.L.U. would also oppose random breathalyzer testing of students to detect alcohol use.
The case should be decided by late June.
