Court To Weigh Random Drug Tests of Students

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The U.S. Supreme Court agreed last week to decide whether it is constitutional for school districts to randomly test student-athletes for drug use.

The Justices on Nov. 26 accepted an appeal from an Oregon district that adopted a random-testing program in 1989 after it perceived an increase in illegal-drug use among some athletes.

The case of Vernonia School District v. Acton (Case No. 94-590) marks the first time the High Court has examined the issue of drug testing within the context of public education. The Court has upheld random drug testing of employees whose jobs affect public safety, such as train engineers and federal drug agents.

The U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, struck down the Vernonia, Ore., district's program last May, ruling that it violates students' Fourth Amendment right to be free from unreasonable searches. (See Education Week, 05/18/94.)

"Children do not have to surrender their right to privacy in order to secure their right to participate in athletics," said the unanimous opinion by U.S. Circuit Judge Ferdinand F. Fernandez for the three-judge appellate panel.

The threat of lawsuits and the costs associated with drug-testing programs have limited their appeal, legal experts say. Individual drug tests cost about $12 to $14 each. Drug testing at Vernonia High School in the Oregon logging community cost about $4,000 a year, officials said.

Nonetheless, the question of whether public institutions may require drug testing of student-athletes has been percolating in the courts for several years.

The Supreme Court last spring let stand a ruling by the Colorado Supreme Court that invalidated a random-drug-testing program for athletes at the University of Colorado. (See Education Week, 05/11/94.)

In 1988, the U.S. Court of Appeals for the Seventh Circuit, based in Chicago, upheld a drug-testing program adopted by an Indiana school district.

In his opinion last May, Judge Fernandez of the Ninth Circuit said the Seventh Circuit's ruling in Schaill v. Tippecanoe County School Corporation "unduly minimized the privacy interests of students."

The conflicting rulings may have led the Supreme Court to accept the Oregon case to resolve the issue, experts said.

The 'Drug Cartel'

Vernonia school officials believed that some student-athletes had been smoking marijuana and using other drugs when they adopted the program in 1989. Drugs also were considered a factor in the formation of rowdy student groups with such names as "Big Elk" and the "Drug Cartel," according to court documents.

Under the district's policy, all athletes had to provide a urine sample at the beginning of the season for the sport they played to be tested for drugs. Later, randomly selected athletes had to provide samples.

Students who tested positive for drugs could either undergo counseling and weekly testing or be suspended from athletics for the current and following seasons.

James Acton, a 7th-grade student who wanted to join the football team at Washington Grade School, challenged the policy in 1991. His parents did not sign a consent form for drug testing, and he was suspended from athletics.

There was no evidence that the boy used drugs. The Actons filed suit over the policy with legal help from the American Civil Liberties Union. The a.c.l.u. opposes all "suspicionless" drug testing.

A U.S. District Court judge rejected the family's claims in 1992, but the Ninth Circuit court reversed that decision. Thomas M. Christ, the Actons' lawyer, said James took the drug tests under protest so that he could join the basketball team after the district court ruled against him. He is now in 10th grade.

"This program turns on its head the presumption of innocence," Mr. Christ said last week. "What the school is telling its students is that you are all presumed guilty until you prove yourselves innocent."

1985 Case Cited

In its appeal to the Supreme Court, the Vernonia district argued that the case presents the opportunity to address school searches that lack "individualized suspicion."

The district said its position was supported by the Supreme Court's 1985 decision in New Jersey v. T.L.O. In that case, the Court held that the Fourth Amendment's prohibition of unreasonable search and seizure applied to searches conducted by school officials but that the school setting allowed such officials greater latitude to maintain an orderly educational environment.

"T.L.O. authorizes a more flexible standard for searches in schools than for searches in nonschool settings," the Vernonia district states in its petition to the Court. "This Court should specifically consider the issue of suspicionless drug testing in schools in light of its holding in T.L.O."

Other Action

In separate action last week, the High Court:

  • Allowed a group of homeless parents to proceed with a lawsuit against the District of Columbia over education services for their children.

The Justices let stand a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that individuals may sue to enforce provisions of the federal Stewart B. McKinney Homeless Assistance Act of 1987. The High Court rejected the city government's appeal in District of Columbia v. Lampkin (No. 94-578).

  • Allowed a lawsuit to proceed against the R.J. Reynolds Tobacco Company in a California case alleging that its Joe Camel advertising targets children.

The Justices refused to disturb a California Supreme Court ruling allowing the tobacco giant to be tried on civil charges that the Joe Camel ads violate a state consumer-protection law. The appeal was R.J. Reynolds Tobacco Company v. Mangini (No. 94-571).

  • Ruled 7 to 2 in U.S. v. X-Citement Video Inc. (No. 93-723) to uphold a federal child-pornography statute, rejecting arguments that the law banning interstate distribution of such pornography was so poorly drafted as to be unconstitutional.

Vol. 14, Issue 14

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