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Published in Print: November 14, 2001, as Court to Look at Drug Testing Of Nonathletes

Court to Look at Drug Testing Of Nonathletes

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The U.S. Supreme Court agreed last week to revisit the issue of drug testing of students in public schools. The court will review an Oklahoma district's policy of random testing of not just athletes but also students involved in other interscholastic activities, such as cheerleading, band, and the Future Farmers of America.

The outcome of the case is likely to be felt nationwide because the crucial legal question involves whether school boards must document a serious drug problem in their schools before adopting random-testing programs.

In a 1995 decision, the court upheld an Oregon district's program of testing student athletes for drugs. But the 5-4 ruling in that case, Vernonia School District v. Acton, relied heavily on evidence that the Vernonia district had a serious drug problem and that athletes were "leaders of the drug culture."

Since then, more districts have adopted testing of athletes, and a few have sought to test students in other extracurricular activities. The Lockney, Texas, district adopted a policy of testing all students in grades 7- 12 for drugs. But that program was struck down by a federal district judge earlier this year, and the district did not appeal the ruling.

The Oklahoma case accepted by the Supreme Court last week involves the 2,200-student Tecumseh district near Oklahoma City.

In 1998, the district adopted a program of random drug testing of students involved in all interscholastic competition. That includes athletics as well as cheerleading, pompom, vocal music, band, academic team, the Future Farmers of America, and the Future Homemakers of America.

Policy Struck Down

The school board was generally concerned that drug abuse was a problem in the district, and the district had experienced incidents in which marijuana was found, according to court documents. The district settled on testing participants in interscholastic activities because, it reasoned, those students had already voluntarily placed themselves under more stringent rules, and because they were allowed to travel as school representatives.

With the backing of the American Civil Liberties Union, the families of three students challenged the policy. A federal district judge upheld the testing program as reasonable, but the U.S. Court of Appeals for the 10th Circuit, in Denver, struck it down last March.

A panel of the appeals court ruled 2-1 that the Tecumseh policy violated the Fourth Amendment's prohibition on unreasonable government searches. The majority said that the Supreme Court's Vernonia ruling emphasized that athletes could put themselves and other players at risk of physical harm while under the influence of drugs.

"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 appellate court rejected the district's arguments that its policy was justified under the Vernonia decision because some band members carry heavy instruments, and FFA participants sometimes wrestle large animals.

School districts seeking to impose 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," the 10th Circuit court said.

In its appeal to the Supreme Court in Board of Education of Independent School District No. 92 v. Earls (Case No. 01-332), the Tecumseh district said the 10th Circuit ruling conflicted with a 1998 decision by the U.S. Court of Appeals for the 7th Circuit, in Chicago, that upheld an Indiana district's policy of testing all extracurricular participants for drugs.

The district argues that school board members should be able to use "reason and common sense" to determine that a drug problem exists in their schools.

What's the Problem?

The justices granted review of the case on Nov. 8. The case will be argued next spring, with a decision likely by early next summer.

In its response on behalf of the families who challenged the policy, the ACLU argued that the Tecumseh district has never had a serious drug problem.

"Only alcohol and tobacco have been identified as significant problems among the student body, and the testing method under the policy does not screen for either substance," the ACLU's brief said.

Vol. 21, Issue 11, Page 24

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The correct vote in Vernonia School District v. Acton was 6-3, with Justices Sandra Day O'Connor, John Paul Stevens and David H. Souter in the minority.

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