Appellate Court Rejects Extracurricular Drug Testing

A federal appeals court last week struck down an Oklahoma school district’s policy of drug tests for students engaging in extracurricular activities such as cheerleading, band, choir, and the Future Farmers of America.

The 2-1 ruling by a panel of the U.S. Court of Appeals for the 10th Circuit (Earls v. Board of Education of Tecumseh Public School District), in Denver, held that the Tecumseh district’s policy of random testing for use of illegal drugs violated the Fourth Amendment’s prohibition against unreasonable searches.

The majority drew a line between the drug testing of student athletes upheld by the U.S. Supreme Court in a 1995 case and the extension of testing to students who take part in other extracurricular activities.

“It is difficult to imagine how participants in vocal choir, or the academic team, or even the [Future Homemakers of America] are in physical danger if they compete in those activities while using drugs, any more than any student is at risk simply from using drugs,” said the majority opinion.

The ruling is significant because it conflicts with one by the U.S. Court of Appeals for the 7th Circuit, in Chicago, which in 1998 upheld random testing of participants in extracurricular activities beyond athletics.

School districts have slowly expanded drug testing of students since the high court’s ruling six years ago in Vernonia School District v. Acton. In that case, the court upheld an Oregon district’s policy of testing student athletes in light of what administrators had described as an epidemic of drug abuse among them. Since then, more districts have begun testing athletes, and some have included other extracurricular participants or students who drive to school. A federal district judge recently struck down a Texas district’s policy of testing all students in grades 6-12.

Injured by a Steer

The 2,170-student Tecumseh district adopted its drug-testing policy in the fall of 1998. Besides student athletes, the policy covers activities involving outside competition, such as the FFA, the FHA, band, choir, and the academic team. It apparently has not been applied to noncompetitive activities such as curriculum clubs or the student newspaper or yearbook.

Covered students are subject to random urinalysis testing for use of marijuana, cocaine, and other illegal drugs, although not for alcohol or nicotine. In the 1998-99 school year, two students out of 486 covered by the policy tested positive for drug use. Both were athletes and members of the FFA. In 1999-2000, one student out of 311 tested positive.

The district’s policy was challenged in a lawsuit filed in U.S. District Court in Oklahoma City by the American Civil Liberties Union on behalf of several families. The suit didn’t challenge the policy for student athletes.

The district judge upheld the drug testing of extracurricular participants. But in its March 21 ruling, the 10th Circuit court overturned that decision.

Applying the factors the Supreme Court discussed in Vernonia, the appellate panel’s majority said extracurricular participants did not face the same dangers from drug abuse that the student athletes did in the Oregon case.

One school board member had testified that an FFA participant was apparently under the influence of drugs when he was injured by a steer he was handling. And other Tecumseh teachers and administrators had testified about incidents in which they said they knew students were using drugs.

But the district provided a “paucity of evidence of an actual drug-abuse problem among those subject to the policy,” the appellate panel said.

Districts seeking to impose random drug testing as a condition of joining in a school activity “must demonstrate that there is some identifiable drug-abuse problem among a sufficient number of those subject to the testing,” U.S. Circuit Judge Stephen H. Anderson said in the majority opinion.

‘A Privilege’

In dissent, U.S. Circuit Judge David M. Abel said that drugs are a serious problem in schools, and that extracurricular participants might be more tempted to experiment with drugs because their after- school activities and related travel are subject to less supervision from adults.

“Participation in extracurricular activities is a privilege, not a right,” he said.

The 10th Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.