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Published in Print: March 13, 2002, as Testing the Limits Of School Drug Tests

Testing the Limits Of School Drug Tests

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Lindsay Earls remembers the first time she was selected for a random drug test at Tecumseh High School here.

"They came over the intercom and said, 'Lindsay Earls needs to go to the alumni building,'" the place where the samples were being collected, she said. "They might as well have said, 'Lindsay Earls needs to go pee in a cup.' It was terrible."

Ms. Earls was smart, outspoken, and active in many activities during high school. She participated in show choir, concert choir, and color guard, and she was captain of the academic team before graduating from Tecumseh High last year. She is now a freshman at Dartmouth College, the first local graduate in anyone's memory in this Oklahoma town to go to an Ivy League college.

But on that day, during her sophomore year, she indeed did have to go provide a urine sample to school officials. Her chagrined walk to the alumni building ultimately led to a much longer journey, one about to culminate in the chambers of the U.S. Supreme Court.

In 1998, Tecumseh's five-member school board adopted a drug-testing policy that covers student athletes and students who participate in extracurricular groups that compete against other schools, such as band, pompom, Future Farmers of America, and Future Homemakers of America.

"Those students go out and represent Tecumseh High," said Terry O'Rorke, a school board member who voted for the policy. "There is an option for students to be in extracurricular activities. No one is forced to do it."

Next week, the Supreme Court will take up the constitutionality of the drug-testing policy. Lindsay and her younger sister, Lacey Earls, backed by their parents and the American Civil Liberties Union, contend in their challenge that the testing of extracurricular participants violates the Fourth Amendment's prohibition against unreasonable searches.

The school district argues that in an age when there are numerous health and safety threats to students in their care, public schools should have the freedom to reduce the use of illegal drugs.

The Supreme Court's eventual ruling in Board of Education of School District No. 92 v. Earls (Case No. 01-332) will provide schools nationwide with long-awaited further guidance on the legality of drug testing of students. In a 1995 decision, Vernonia School District v. Acton, the court ruled 6-3 to uphold drug testing of athletes in an Oregon district where they were viewed as "leaders of the drug culture."

The question in the Oklahoma case is not only whether groups other than athletes can be tested, but also whether school districts must prove a drug problem exists in their schools before subjecting any group of youngsters to testing.

Test for All?

Dean Rogers, a soft-spoken grandmother who serves as the president of the Tecumseh school board, said that if it were up to the board, the testing policy would be broader than it is.

"We'd love to test all students, if they'd let us," she said. "But let's try this first."

Tecumseh is a town of about 6,000 souls, some of whom commute the 40 miles northwest to Oklahoma City. The biggest local employers are the 2,050- student school district, the Central Oklahoma Juvenile Justice Center, and the nearby Citizen Potawatami Nation tribal complex.

Ms. Rogers remembers incidents of drug use by students going back to the 1970s. She once chaperoned a school dance where marijuana turned up, and she recalls an incident in which an FFA member she believed was under the influence of drugs lost control of his steer and was injured.

"I think there is more of a drug problem out there than what regular citizens would want to admit," she said.

Board members had talked about implementing a drug-testing policy for several years, she added, and in 1998 they got serious about it. They thought they would be on solid ground testing athletes, based on the Supreme Court's Vernonia decision. But they didn't want to stop there.

"I didn't think it was right to lay it all on the athletes," Ms. Rogers said.

Testing all students would surely invite a legal challenge, the board members were advised. They settled on testing students engaged in activities regulated by the Oklahoma Secondary School Activities Association.

The policy, which went into effect in October 1998, requires students in covered activities to be tested initially as part of a physical at the beginning of the school year. After that test, students are selected randomly throughout the year for additional urinalysis.

The students' urine samples are sent to a lab, which tests for marijuana, cocaine, amphetamines, opiates, barbiturates, and benzodiazepines. The samples are not tested for steroids, nicotine, or alcohol. Each test costs about $11.

Tom Wilsie, the superintendent, said alcohol is probably the No. 1 substance-abuse problem among high school students in Tecumseh, but it isn't practical to test for it.

"Alcohol is a problem everywhere," he said. "But it's in and out of the system so quickly."

Students who test positive for drugs first face counseling and a second test. After another positive test, they are barred from competitive activities for 14 days. Students who refuse a drug test or test positive a third time are barred from activities for the rest of the school year. The test results are not turned over to police.

In the year before the program was challenged in federal court, three students tested positive for drugs. All three participated in both athletics and the FFA.

Mr. O'Rorke, who manages a Potawatomi Nation-owned supermarket that routinely tests its employees for drugs, said the district's testing policy helps prepare students for the working world.

"There are few jobs nowadays that don't have drug testing," he said.

The drug-testing policy covers students in Tecumseh's middle school and high school. At the 620-student high school, well over half of students participate in athletics or other competitive extracurricular activities.

Several students said illegal drugs were available in Tecumseh. Most said the drug users were disengaged students who were not likely to play sports or join clubs. But others said drug use could be found among the ranks of extracurricular participants, too.

"I know people who smoke marijuana and play sports," said Sloan Aday, a senior who has taken drug tests as a member of the football, basketball, and golf teams. He supports the policy because once the testing program was suspended by a court ruling, "some students said 'Now we can go get high,'" he said.

Sandy Dunigan, a senior who plays flute in the marching band, has been tested twice, but supports the policy.

"In marching season, we're out in the heat, and drugs could hurt us," she said.

One of the district's arguments is that some extracurricular activities are analogous to athletics. One basis the Supreme Court cited in upholding drug testing of athletes is that "the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high."

"In FFA, students are required to individually control and restrain animals as large as 1,500 pounds," the district argues in its brief. Cheerleading, pompom, and band pose similar dangers for participants using illegal drugs, it argues.

The district concedes that activities like music and the academic team do not have the same physical risks, but those students still represent the school in situations that often have little oversight.

About 140 Tecumseh High students are enrolled in agriculture classes, and all of those students are members of FFA, said Tonya Brown, a senior who is chapter president. The school has a barn where students can keep their pigs, sheep, and cattle. One day late last month, seven pigs under the care of Tecumseh students rested in their pens there.

Parents Taken Aback

Lindsay Earls' younger sister, Lacey, a junior at Tecumseh High, is also smart, but much more shy. She serves as club historian of FFA and has been preparing to show a sheep at the county fair.

Lacey Earls has been selected several times for random drug tests. She was not named as a plaintiff in the suit until her sister graduated and left for college.

"Some kids said to me, 'Why don't you tell your sister to leave the school alone?'" Lacey Earls said.

Her parents, David and Lori Earls, were taken aback when the district adopted the drug-testing policy. Mr. Earls, a social worker who works in the juvenile-justice system, began checking with civil liberties lawyers about whether it was constitutional. "As an adult, you've got that constitutional right to be free from unreasonable searches," he said. "I think that right extends to kids as well."

Lori Earls, a medical technician, said she and her husband believe the drug tests infringe on parents' right to deal with substance-abuse problems.

"That should be left to the home," she said. They have a third daughter, Casey, who is in 6th grade and has not yet faced the drug-testing policy.

Although both are Democrats, the Earls did not consider themselves liberal activists when they engaged the aid of the ACLU.

"I'm the president of the FFA Booster Club," Mr. Earls said. "I grew up with Tommy Wilsie [the superintendent]. I've never had a cross word with him. But this is how questions like this are answered—in a court of law."

In a phone interview from Dartmouth, Lindsay Earls said the testing program misses the mark.

"Even if there are a few kids in the high school using drugs, that doesn't justify testing those of us in extracurricular activities," she said. "The kids in those activities are the least likely to be on drugs."

The Earls lost the first round of their suit when a federal district judge in Oklahoma City upheld the drug-testing program. But a panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled 2-1 last year that testing extracurricular participants beyond athletes was not justified under the Fourth Amendment. Drug testing has been suspended since then.

All five members of the school board, along with Mr. Wilsie, plan to attend the March 19 oral arguments before the Supreme Court. They hope the court will give boards freer rein to address the problem of student drug use.

"Our goal is not to have to wait until there is an epidemic of drug abuse before being allowed to take action," said Mr. O'Rorke.

The Earls family will also be at the Supreme Court. For Lindsay Earl, the arguments fall during spring break.

"My friends are talking about going to Florida to get a tan," she said. "I told them I am going to Washington because I have a case being heard by the Supreme Court."

Vol. 21, Issue 26, Pages 1,13

Web Resources
  • Read the opinion of the U.S. Court of Appeals for the 10th Circuit in Earls v. Board of Education of Tecumseh Public School District, March 21, 2001, from FindLaw.com. "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.
  • "Back to School—and a Test You Can't Study For," Aug. 30, 2000, from the American Civil Liberities Union, tells students that "If your school is conducting random or broad drug testing, it may be violating students' constitutional rights."
  • In the April 2001 article "Lockers and Locker Rooms: Should Students' Privacy Rights Bar Random Drug Testing?," from FindLaw.com, author Barton Aronson argues that when it comes to drug testing in schools, student privacy is inconsequential if a policy can help young drug abusers get treatment.
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