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Published in Print: May 9, 2001, as Law Update

Law Update

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Texas District Drops Defense
Of Blanket Drug Tests

The Lockney, Texas, school district has chosen to stop defending its policy of testing all students for illegal drugs. The district chose late last month not to appeal a federal district judge's ruling in March that its sweeping testing program was unconstitutional.

The Lockney, Texas, school district has chosen to stop defending its policy of testing all students for illegal drugs. The district chose late last month not to appeal a federal district judge's ruling in March that its sweeping testing program was unconstitutional.

The 735-student district in West Texas adopted the program in 1999 for students in grades 6-12. Using urinalysis, the district tested for marijuana, cocaine, amphetamines, other illegal drugs, and tobacco, but not for alcohol or steroids. Under the policy, students whose parents refused to consent to the searches were treated as having tested positive for drugs and faced suspension from extracurricular activities, among other penalties.

The policy was challenged by Larry E. Tannahill, who refused to give consent for his 12-year-old son, Brady, to be tested last year. The challenge was backed by the American Civil Liberties Union, which argued that the testing of all students was not justified under the U.S. Supreme Court's 1995 ruling that upheld drug testing of student athletes in an Oregon community that had experienced a major drug problem.

On March 1, a federal district judge in Lubbock, Texas, struck down the district's policy as a violation of the Fourth Amendment's prohibition against unreasonable searches by the government. The judge cited a 1998 survey that showed that drug use among Lockney pupils was generally lower than that in other Texas schools.

Since the Supreme Court's ruling in Vernonia School District v. Acton in 1995, more districts have adopted testing programs for athletes and, in some cases, for broader categories of students involved in extracurricular activities. Many of those broader programs have also faced legal challenges, with a mix of rulings.

The Lockney district was the first to order mandatory testing of all students.

"If Lockney's sweeping drug tests are permitted, there remains no principled limitation upon drug testing all 24 million students in junior or senior high school throughout the nation," the ACLU argued in court papers.

Hermon L. Veness Jr., a lawyer who helped the district defend its policy, said the appeal was dropped because of the potential cost and the fact that Mr. Tannahill was the only parent who refused to consent to the drug search.

Top 10 List: A Pennsylvania high school student who ridiculed a faculty member in an e-mail to friends from his home computer was engaged in free speech protected by the First Amendment and could not be suspended, a federal district judge has ruled.

Zachariah Paul, a student at Franklin Regional High School in Murrysville, Pa., in 1998-99, created a "Top 10 List" about the school's athletic director, Robert Bozzuto. The e-mail, a stab at a David Letterman-style list, made fun of Mr. Bozzuto's weight and sex appeal, among other things.

Mr. Paul created the list on his home computer and e-mailed it to friends. He did not print it or bring a copy to school, according to court papers, because he had distributed similar lists in the past and been warned about them by school administrators. But another student printed the list and brought it to school.

Once administrators got wind of the list, Mr. Paul was suspended for 10 days. The suspension was put on hold when the student and his mother immediately challenged the discipline in a lawsuit filed against the Franklin Regional School District in U.S. District Court in Pittsburgh. In a March 22 ruling, U.S. District Judge Donald E. Ziegler ruled against the 3,800-student school district. The judge analyzed the case under the U.S. Supreme Court's precedents on student speech in school, including Tinker v. Des Moines Independent Community School District and Bethel v. Fraser, even though Mr. Paul created the list at home and did not himself distribute it on school grounds.

The judge said there was no evidence the list disrupted the school. While Mr. Bozzuto and other school officials found it to be "rude, abusive, and demeaning, ... disliking or being upset by the content of a student's speech is not an acceptable justification for limiting student speech under Tinker," he said.

That 1969 case upheld the right of students to wear armbands protesting the Vietnam War. Analyzing Mr. Paul's case under Fraser, the 1986 case in which the high court upheld the discipline of a student who delivered a lewd speech at a student assembly, Judge Ziegler found it important that the list was created "within the confines of Paul's home, far removed from any school premises or facilities."

Mother Earth: A celebration of Earth Day in a New York state school district was not an unconstitutional establishment of religion, a federal appeals court has ruled.

The unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, came in a case that challenged several alleged religious practices in the 3,700-student Bedford Central district. Several parents complained that a range of practices, including the Earth Day observance, a card game called "Magic: The Gathering," lessons about the Hindu deity Ganesha, and use of "worry dolls" violated the First Amendment.

A federal district judge in 1999 ordered the district to halt several practices, including the recognition of Earth Day because worship of the Earth was a recognized religion known as Gaia. ("Judge Says District Violated Students' Religious Freedom," June 2, 1999.)

The district appealed, and the 2nd Circuit panel ruled on March 27 that most of the challenge should have been dismissed as moot. But the panel considered the merits of the Earth Day claim and reversed the district judge.

—Mark Walsh

Vol. 20, Issue 34, Page 7

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