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Published in Print: October 1, 2000, as Locker Room Talk

Locker Room Talk

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Controversial conflicts that begin in schools—battles over prayer, curriculum, and censorship, for example—sometimes end up in the U.S. Supreme Court, where precedents are set. With that in mind, New Press has published May It Please the Court: Courts, Kids, and the Constitution. Edited by Peter Irons, a professor of political science at the University of California, San Diego, the book, which is accompanied by live recordings, offers transcripts and discussions of 16 Supreme Court oral arguments dating to 1963.

One case, heard five years ago, focuses on a problem that, while considered serious, infused the courtroom with levity and language fit for a locker room. On March 28, 1995, the court's nine justices heard the case of Vernonia School District vs. Acton, which originated in 1991, when James Acton, a 7th grader in a small logging town in Oregon, signed up to play football and was told to take a drug test. School officials, according to Irons, were concerned about increasing substance abuse, especially among athletes, who were required to submit to a monitored urine test at the start of the season, then face random tests in the future.

Jim's parents refused to sign the consent form and filed a lawsuit in federal court, claiming the drug test violated the Fourth Amendment's ban on unreasonable searches and the Fourteenth Amendment's protection of liberty and privacy. A district judge dismissed the suit, but the U.S. Court of Appeals reversed the decision. The school board then asked the Supreme Court to review the case and uphold the school's drug-testing policy.

At the trial, Thomas Christ represented Jim Acton and his parents. Chief Justice William Rehnquist welcomed Christ to the podium.


Christ: Thank you, and may it please the Court:

My opponents have just offered you two justifications for this highly intrusive search. One is maintaining order in the classroom, and the other is promoting athletic safety, and I'd like to address each in turn.

First, order in the classroom. If that's the goal, then it seems to me that this test is completely unnecessary. You don't need urine testing to detect, punish, and, by punishing, deter disorderly behavior. Disorderly behavior is obvious. Disruptive students give themselves away. Urine testing isn't going to aid in detecting. Now, it may help in explaining why disorderly students are that way, but you don't need to know that in order to detect this problem and deter it through appropriate punish-
ment. . . .

Justice Sandra Day O'Connor: Well, what if the justification offered was that there's an increased risk of physical harm, health risks to athletes who are using drugs, and as part of our policy in the school to weed out those with heart problems or those with other special risks in athletic programs, we're going to require this kind of testing for health purposes. Now, would that be sufficient to justify this?

Christ: No, we don't believe that's sufficient.

O'Connor: Well, why not? It would be just like testing for a hernia, or a heart problem, or asthma, or whatever else might be the case.

Christ: Well, I don't know that the school district can compel anyone to submit to an examination for those purposes.

Justice Stephen Breyer: Are you saying actually that you can't have a medical test? . . . Can't they require physical exams for athletes?

Christ: They do require a physical exam.

Breyer: I mean, so—couldn't—aren't you saying they couldn't require physical exams for students to come to school? They want to know how the health of a student is.

Christ: I'm not saying that. I don't think that I need to contend that here.

Breyer: All right. Well then, the problem, of course, for people is, if they can require the physical exams for the health, and I guess you could require medical—metal detectors to keep guns out of schools, a lot of things you can require, what's different about this?

Christ: Because this is so highly intrusive.

Breyer: Medical exams all involve urinalysis. I've probably had hundreds of them in my life, and so have you, and you know, what's the special thing here?

Christ: The medical exam you're talking about is being conducted in private by the student's doctor. It is not being conducted—

Breyer: Well, people urinate, you know, in men's rooms all over the country. It's not necessarily—and I don't mean to be—trivialize it, but it isn't really a tremendously private thing, is it?

Christ: I think it's private when it's being compelled by the government, and the government is there watching and observing and collecting specimens.

Breyer: All right. What I'm trying to get you to do is to pinpoint precisely what it is that's the intrusion of the privacy interest. That's what I'm trying —that's what I'm aiming at.

Christ: It's not the mere act. We all urinate. That's—has to be conceded. (laughter) In fact, I might have to do so here. (laughter)

After the laughter died down, Justice Anthony Kennedy gave Christ a chance to end his argument on a serious note.

Kennedy: I, like you, and a lot of other people, have some kind of instinct that there is something private going on here, but to try to pinpoint it precisely is difficult, and it's because it is difficult that I'm asking you . . . to try to pinpoint just what it is about this test that is private and therefore offends you and many others.

Christ: I appreciate the help, and what I think is the point here is that this is being compelled by the government, they're watching you do it, they're taking your urine, and they're analyzing it to see what kind of secrets [are] there, and at the same time they are compelling a student to come forward and disclose all their private medications, and that is highly intrusive and personal.

Despite Christ's pleas, six justices decided that Jim, then a junior, couldn't play football without taking the drug test. In writing the majority opinion, Justice Antonin Scalia claimed that the Fourth Amendment's requirement for "probable cause" doesn't apply when "special needs" are at issue, in this case protecting students from the "evil" of "a drug-infested school." As concerns privacy, Scalia wrote that "school sports are not for the bashful" and "public school locker rooms" don't allow for privacy. The urine tests would continue.

Vol. 12, Issue 2, Page 53

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