Tangle of Questions Confronts Schools Considering Drug-Testing Programs

By Debra Viadero — October 01, 1986 9 min read

For Richard Stephens, a high-school principal in Alliance, Neb., signing up for the nation’s war on drugs has not been a simple proposition.

Earlier this year, when his school’s athletics director proposed testing student athletes for drugs, Mr. Stephens began a long struggle with the tangle of legal, ethical, financial, and administrative questions that hundreds of his counterparts nationwide may soon encounter.

''It’s not something you can easily jump into,” he says now.

The Alliance school board’s lawyer, Thomas Danehey, agrees.

“My first question as an attorney was the reliability and validity of the tests,” he say . “What do you do if a student tests positive? Do you suspend him or what?”

Beyond that, Mr. Danehey says, was the question of purpose. ''We have not seen anything from anybody here that shows a need.”

Before answers could be found, however, two larger uncertainties emerged.

First, the school board’s insurance agent said liability coverage would not protect board members and school personnel from lawsuits arising from the tests. Then, the Nebraska Civil Liberties Union publicly threatened to j file a suit if drug testing were instituted.

“The board felt that was prohibitive,” Mr. Stephens said last week. The athletics director has been told to find a way around the hurdles, he said. But for the moment, questions about drug testing remain unanswered in Alliance-as they do for the nation as a whole.

Action, Uncertainty

Nationally, medical experts have cautioned that the tests are not 100 percent reliable and may be much less so in the hands of inexperienced, uncertified technicians.

In at least four court cases over the past two years, judges have struck down the attempts of school boards to test students, teachers, or school-bus aides for drugs.

And some school boards, scheduled to take up the question of drug testing this fall, have yet to settle the problem of who pays for the tests, some of which can cost more than $100 per sample.

Still, more and more schools, prompted in part by President Reagan’s proposal to test thousands of federal employees, are setting up drug-testing programs of various magnitudes. They range from policies that allow testing only for those : students suspected of using drugs--a proposal now before the Old Say- , brook Board of Education in Connecticut-to both voluntary and mandatory testing programs for student athletes and students who participate in after-school activities. (See Education Week, Sept. 10, 1986.)

survey this summer of 50 state high-school interscholastic athletics associations turned up 22 high schools that had begun or were considering drug-testing programs, according to the National Federation of State High School Associations, which conducted the survey. Since then, interest in drug testing has heightened, and districts and schools across the nation have instituted, or are considering, testing programs.

And two Indiana state legislators plan to introduce a bill this year that would require 130,000 high-school athletes in that state to take a drug test.

“We have to give the kids a crutch to lean on,” said Representative Frank Newkirk, one of two sponsors of the bill. “If they’re at a party, and they’re offered drugs, they can say, ‘No, thanks, I might be tested.’ ”

Legal Tests

According to lawyers involved in drug-testing cases, no state or federal court has upheld any form of drug testing in schools. But various courts have sustained the use of tests for jockey, prisoners, and city bus drivers.

Citing an individual’s Fourth Amendment rights to freedom from unreasonable searches and seizures, state courts in New Jersey and New York and a federal court in Arkansas have ordered schools to drop programs to test students or teachers.

In one case, in New Jersey’s Carlstadt-East Rutherford school district, a state court judge last month ordered the school board to pay $23,000 in lawyer’s fees incurred by the students who challenged the policy.

“That’s got to be a real disincentive to school boards that are thinking of drug testing,” said John L. Weichsel, the lawyer for the students.

The Carlstadt-East Rutherford policy would have required students to submit to a drug test as part of an annual physical. But last December, the judge ruled that even if the purpose was solely a medical one, the test would “violate the reasonable privacy expectations of schoolchildren.”

Months earlier in Arkansas, where school officials had used a urinalysis to determine whether two high-school girls had smoked marijuana in a school bathroom, a U.S. District Court judge ruled that “requiring a teen-aged student to disrobe from the waist down while an adult school official, even though of the same sex, watches the student urinate in the ‘open’ into a tube is an excessive intrusion upon the student’s legitimate expectations of privacy ....”

“Such a search is not ‘reasonable’ under the circumstances,” he concluded.

In rendering their decisions, both judges drew on the U.S. Supreme Court opinion in T L.o. v. New Jersey, a case involving school officials who searched a student’s purse and found evidence indicating that she was dealing in drugs.

While that opinion clarified students’ Fourth Amendment rights, it also granted school officials a little more latitude than police officers in conducting searches. The Court ruled that school officials may search students when they have “reasonable suspicion"-a slightly less rigid standard than “probable cause” -that a violation of school rules has taken place.

But such rulings have not removed the threat of lawsuits or made clear the course that future legal challenges to drug testing will take. And for many school officials, this uncertainty may be an insurmountable barrier to the tests.

As Daniel Contonis, the Alliance, Neb., board’s independent insurance agent, said, “When you start drug testing, the first thing people are going to yell is, ‘Where’s the constitutionality of it?’ ”


Questions of Reliability

Another barrier is test reliability. Three medical experts interviewed by Education Week said last week that standard, drug-screening tests can be, in the words of one, “highly reliable if handled properly.” More expensive methods of corroborating a positive test can be correct as often as 99 percent of the time, they said

But Dr. Roger L. Foltz, associate director of the University of Utah Center for Human Toxicology, cautioned that “the reliability of the test depends very much on the skill and the experience of the person performing it.” (See text of interview on this page.)

And, he added, unlike medical laboratories, drug-testing laboratories are not now regulated by any government agency.

In published reports, other experts often have judged the tests to be less than accurate.

In a study published last year in the Journal of the American Medical Association, for example, three scientists from the federal Centers for Disease Control in Atlanta, reported on what they called a “crisis in drug testing.” They based their assessment on a study of 13 laboratories that served 262 methadone treatment centers.

The C.D.C. scientists added measured amounts of barbiturates, amphetamines, methadone, cocaine, codeine, and morphine to urine samples sent to the laboratories and checked to see if the substances were accurately identified. In some cases, the laboratories knew they were being checked; in others they did not.

The results varied widely-from 100 percent correct identifications to zero.

Dr. Richard Schwartz, a clinical professor of pediatrics at Georgetown University’s school of medicine, said such findings may not hold true today, however. The C. D.C . study, though only recently published, was conducted from 1972 to 1981, he said. The C.D.C. no longer studies drug-testing facilities.

“The first couple of years, there were a lot of bugs in the system,” he said.

Accuracy also hinges on the so called “chain of custody” of the sample, other experts noted. Records must be kept of everyone who handles the specimen, from the worker who watches the specimen being collected to the courier-service messenger who picks it up, the laboratory receptionist who receives it, and the testing technician.

The possibility of tampering or mislabeling-and the fact that a handful of prescription and over-the-counter drugs can show up as an illicit drug on an initial screening require that positive tests be confirmed by a more reliable method, experts advised.

They recommended a gas chromatography/ mass spectrometry 0:- G.c.I M.S. test-a more expensive technique costing upward of $100, depending on the number of drugs being tested.

The initial screening tests-usually either an Emit immunoassay, a radioimmunoassay, or a process called thin-layer chromatography--range in price from $5 to $35, according to the experts.

The Price Tag

Fbr many school districts, struggling to find adequate funding for salaries and instructional costs, the question of who pays for the tests and how much-may be a thorny issue. It is one that the Old Saybrook, Conn., school board must resolve before voting next week to approve testing as one component of a more comprehensive drug-prevention program for its schools, said Christina Burnham, the board chairman.

Districts that have already adopted drug testing have come up with various solutions to problems of cost. At San Diego’s Coronado High School, where student athletes volunteer for the tests, parents pay the $20 laboratory fee.

In Los Angeles, a local hospital has donated its services to Phineas Banning High School for the school’s random voluntary tests of student athletes. And the Milton, Wis., school system pays for tests of suspected drug users.

But most administrators at schools with drug-testing policies--including the Arkansas school superintendent whose program was struck down by a federal court--say that the results have justified the costs.

''We do not have drug or alcohol problems,” said Craig Duncan, the assistant principal at Wisconsin’s Milton High School, where administrators have coupled drug testing with a drug-treatment program at a nearby clinic. “Students here are very much aware of drugs and they’re choosing not to be involved.”

At Milton, a student suspected of using drugs can submit to a drug test or undergo a formal assessment by a certified counselor. If he chooses to do neither, he is suspended until he agrees to cooperate.

The Milton school superintendent, Jon C. Platts, said in the program’s two-year existence neither the legality of the test results nor the program itself has been challenged.

But the policy has attracted widespread media attention and been a target of groups advocating the reform of marijuana laws. The latter have even labeled Milton “rednecked and off-the-wall,” Mr. Duncan said .

“Over time,” concluded Mr. Platts, “our position has proven to be correct.”

A version of this article appeared in the October 01, 1986 edition of Education Week as Tangle of Questions Confronts Schools Considering Drug-Testing Programs