The U.S. Supreme Court has upheld drug testing of students involved in a range of extracurricular activities, expanding the potential for such scrutiny beyond athletics.
Ruling 5-4 on June 27 in a case from a small district in Oklahoma, the court held that testing students in such activities as choir and Future Farmers of America is not an unreasonable search under the Fourth Amendment.
The ruling in Board of Education of Independent School District No. 92 v. Earls (Case No. 01-332) greatly expands the scope of allowable student drug testing. In its 1995 decision in Vernonia School District v. Acton, the court upheld testing of students involved in interscholastic athletics.
“The drug-abuse problem among our nation’s youth has hardly abated since Vernonia was decided in 1995,” said the majority opinion by Justice Clarence Thomas.
Read the majority opinion, delivered by Chief Justice Thomas, in Board of Education of School District No. 92 v. Earls, from the U.S. Supreme Court. Concurring and dissenting opinions are included. (Requires Adobe’s Acrobat Reader.)
The policy adopted by the 2,050-student Tecumseh, Okla., district went beyond athletes to include students in all activities involving competition with other schools.
“Students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes,” said Justice Thomas, who was joined in his opinion by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy, and Stephen G. Breyer.
Justice Ruth Bader Ginsburg, who had voted to uphold testing of student athletes in the Vernonia case, wrote the main dissent, joined by Justices John Paul Stevens, Sandra Day O’Connor, and David H. Souter.
“The particular testing program upheld today is not reasonable, it is capricious, even perverse,” Justice Ginsburg said. The school district’s policy, she said, “targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects.”
A Family Objects
In 1998, Tecumseh’s five-member school board adopted the drug-testing policy. When it took effect that October, the policy required students in the activities covered to be tested initially as part of a physical at the beginning of the school year. After that test, students were to be selected randomly throughout the year for additional urinalysis.
The students’ urine samples were sent to a lab, which tested for marijuana, cocaine, amphetamines, opiates, barbiturates, and benzodiazepines. The samples were not tested for steroids, nicotine, or alcohol.
Tecumseh’s drug-testing program was challenged by David and Lori Earls on behalf of their daughters Lindsay and Lacey. Lindsay, who just finished her freshman year at Dartmouth College, was a participant in choir, color guard, and the academic team before graduating from Tecumseh High in 2001. Lacey, who will be a senior at Tecumseh High this fall, has served as an officer of the FFA chapter. Both sisters were selected for random drug tests several times, and both tested negative for drug use.
The family’s challenge to the drug-testing policy lost in the federal district court in Oklahoma City. 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 in the Tecumseh district has been suspended since then.
Lindsay Earls said she was disappointed by the Supreme Court’s ruling.
“This is a sad day for students in America,” she said. “The ruling is in the name of protecting students from drug use, but I really don’t see how that works. In my high school, there were kids who dropped out of extracurricular activities in protest of the policy.”
Graham A. Boyd, the director of the drug-policy project of the American Civil Liberties Union, who argued the case on behalf of the Earls family, called the ruling “an unprecedented assault on students’ privacy.”
But he said that even after the Vernonia decision, relatively few school districts nationwide took up testing of student athletes. And while a few districts pushed beyond athletes to test broader categories of students, he said he doubted the latest ruling would result in moves by districts to test all students.
“The court clearly did not go so far as supporting drug testing of all students,” he said. Linda Maria Meoli, an Oklahoma City lawyer who argued the case on behalf of the Tecumseh district, said she agreed that the ruling does not authorize a district to test all students. She believes testing all extracurricular-club participants (a broader group than the competitive clubs tested in Tecumseh) is probably on solid ground now.
“Still, I don’t think you are going to see thousands of school districts passing drug policies,” she said. “But this ruling gives them the authority to make that decision on their own.”
Custodians of Students
Much of Justice Thomas’s opinion relies on broad language from the Vernonia decision that public schools have “custodial and tutelary responsibility for children.”
The Tecumseh district presented “sufficient evidence to shore up the need for its drug-testing program,” he wrote. He did not answer arguments from the challengers, also noted by the dissent, that the evidence of any drug problem among the targeted extracurricular participants was thin. Nor did he address the issue that the Tecumseh district had certified to the federal government, in seeking drug-free schools grants, that it did not have a major drug problem.
Justice Thomas said it would be difficult for the courts to require schools to show they had a drug problem before being justified in implementing drug testing.
“It would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug-testing program designed to deter drug use,” he said.
Justice Breyer filed a concurring opinion that cited federal studies showing the continuing prevalence of drug use by young people. And he said a “conscientious objector ... can refuse testing while paying a price (nonparticipation) that is serious, but less severe than expulsion from the school.”
In her dissent, Justice Ginsburg drew distinctions between the privacy expectations of athletes and other extracurricular participants. She wrote, “Competitive extracurricular activities other than athletics ... serve students of all manner: the modest and shy along with the bold and uninhibited.”
And she mocked the school district’s arguments that a safety rationale could justify drug testing of participants in some nonathletic extracurricular activities, such as the Future Homemakers of America, whose members handle knives; FFA members, who wrangle livestock; and band members, with their sometimes heavy instruments.
“Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the school district seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree,” Justice Ginsburg said.