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Court Upholds Drug Tests for Student Athletes

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Washington

Most school officials appear to agree that the U.S. Supreme Court's recent ruling upholding suspicionless drug testing of student athletes is unlikely to spur a rapid expansion of such programs.

The High Court ruled 6 to 3 on June 26 to uphold an Oregon school district's program of random urinalysis testing of middle and high school athletes for use of such illegal drugs as marijuana, cocaine, and amphetamines.

Excerpts from opinions, page 24. High Court rulings on religious aid, school prayer, redistricting, page 22.

"[S]tudents who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy," Associate Justice Antonin Scalia wrote for the majority in Vernonia School District v. Acton (Case No. 94-590).

Naomi Gittins, a staff lawyer for the National School Boards Association, said the ruling does not suggest "that every school district should consider drug testing of student athletes."

"There were a lot of motivating factors in the [Vernonia] school district," she pointed out.

The district had instituted the testing program in 1989, after teachers and administrators began to notice a rise in drug use among students and a resulting increase in classroom disruptions. Some athletes were identified as being the leaders of the drug culture at the school, and coaches noticed several injuries and examples of poor play execution that they attributed to drug use.

Adults in the community, about an hour north of Portland, were nearly unanimous in their support for the program.

In addition, observers said, uncertainty about the legality of student drug testing is just one reason why only a handful of school districts have instituted the practice. The cost is also a major factor. Depending on which drugs are included in the test, the price tag can run from $5 per student to $50 or more.

Lorraine Wilson, the director of policy and legal services for the Washington State School Directors' Association, said her group approves of "opportunities for locally elected officials to make decisions for their communities."

"But once they weigh the costs," she said, "it will be a tough decision."

Many district and student-athletics officials interviewed since the Court's ruling said they did not see the need for drug testing, especially if drug-education programs are in place.

"There are other ways to deal with the same issue," said Lew Frederick, a spokesman for the Portland, Ore., school district.

Bert Borgmann, the assistant commissioner of the Colorado High School Activities Association, argued that athletes are often the least likely group to use drugs, drop out of school, or demonstrate behavior problems.

"I do have to wonder if you're really focusing in on the right students" by testing athletes, he said.

But other officials were pleased to have another tool to fight drug abuse in their schools.

"I think school districts as a whole and boards as a whole are happy about the decision because the Court has given them a window of opportunity to test if they see the need," said Melanie Petersen, the deputy general counsel for the San Diego Unified School District.

'Second-Class Citizens'

The case from the Oregon logging town of Vernonia began in 1991, when Wayne and Judy Acton refused to sign a test-consent form that was required before their son, James, could join the 7th-grade football team. The American Civil Liberties Union represented the Acton family in challenging the district's drug-testing policy.

The Actons lost in the federal district court, but the U.S. Court of Appeals for the Ninth Circuit overturned the drug-testing policy last year. The appellate court said that having "drug-impaired children in our schools is tragic" but that "it is not the type of potential disaster that has caused [the courts] to find a governmental interest compelling enough to permit suspicionless testing." (See Education Week, 5/18/94.)

Although the case involved only testing of student athletes, some legal observers believe that the High Court's ruling might allow districts to require testing of other groups of students, such as all those involved in extracurricular activities.

Some observers even suggested it might lead to mandatory testing of all students, although the High Court's ruling clearly did not go that far.

"They didn't close the door to testing all students, but they also didn't open it," said Gwendolyn H. Gregory, the deputy general counsel of the N.S.B.A., which filed a brief in the case backing drug testing.

"I think school districts will need to walk with real care if they want to expand it beyond want the Court has ruled," she added.

Indeed, Justice Scalia's opinion focused heavily on the details of Vernonia's testing program, and he cautioned "against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts."

Civil libertarians criticized the ruling for diminishing the privacy rights of students.

Steven L. Shapiro, the legal director of the A.C.L.U., said it "sends a strong message to all young people that they are merely second-class citizens under the Fourth Amendment," which bars unreasonable searches and seizures.

"This is yet another example of how the nation seems willing to sacrifice constitutional rights in the name of the war on drugs," Mr. Shapiro said.

Classroom Disruptions

The Supreme Court's lineup in the decision was unusual for a case involving individual rights. Justice Scalia's opinion was joined by three traditionally conservative members of the Court--Chief Justice William H. Rehnquist and Associate Justices Anthony M. Kennedy and Clarence Thomas--but also by the two newest members, Associate Justices Ruth Bader Ginsburg and Stephen G. Breyer, appointees of President Clinton who are considered to be more liberal.

Associate Justice Sandra Day O'Connor wrote a dissenting opinion that was joined by Associate Justices John Paul Stevens and David H. Souter.

Justice Scalia laid the groundwork for his opinion by noting that students' Fourth Amendment right to privacy is lessened somewhat while they are in school. For example, students must submit to physical examinations and be vaccinated against diseases, he noted. Student athletes have even less of an expectation of privacy, he said.

"School sports are not for the bashful," Justice Scalia wrote. Athletes generally change clothes and shower in front of each other, and by going out for a team they are usually subject to a higher degree of regulation than other students, he said.

The Vernonia district's testing program was reasonable because it subjected athletes to a relatively minimal intrusion of privacy to obtain a urine sample, Justice Scalia said, and the program served the school district's interest in fighting a drug problem effectively. Students who tested positive were retested and offered a drug-abuse-counseling program as an alternative to suspension from athletics.

"It seems to us self-evident that a drug problem fueled by the 'role model' effect of athletes' drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs," Justice Scalia wrote.

'Individualized Suspicion'

In her dissent, Justice O'Connor stressed her belief that the U.S. Constitution permits drug testing only of those students for whom officials have an "individualized suspicion" of drug use.

"By reasoning of today's decision, the millions of students who participate in interscholastic sports, an overwhelming majority of whom have given school officials no reason whatsoever to suspect they use drugs at school, are open to an intrusive bodily search," Justice O'Connor wrote.

A suspicion-based program "would have gone a long way toward solving Vernonia's school drug problem while preserving the Fourth Amendment rights of James Acton and others like him," she contended.

She also questioned the district's choice of student athletes as the lone group to subject to suspicionless testing. "It seems to me that the far more reasonable choice would have been to focus on the class of students found to have violated published school rules against severe disruption in class and around campus," she said.

"It cannot too often be stated that the greatest threats to our constitutional freedoms come in times of crisis," Justice O'Connor wrote.

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