Law & Courts

Supreme Court Allows Expansion Of Schools’ Drug-Testing Policies

By Mark Walsh — July 10, 2002 8 min read
  • Save to favorites
  • Print

Education officials say they don’t see most school districts suddenly crafting new drug-testing policies just because the U.S. Supreme Court has upheld such testing of students in a wide range of extracurricular activities.

Still, many school leaders are glad they now have the option. And some say the decision gives them the green light they’ve been waiting for to start their own drug-testing programs.

Ruling 5-4 on June 27 in a case from Tecumseh, Okla., 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. That ruling—Board of Education of Independent School District No. 92 v. Earls (Case No. 01-332)—greatly expands the scope of allowable student drug testing beyond a 1995 decision, Vernonia School District v. Acton, in which the court upheld the testing of students involved in interscholastic athletics.

Paul D. Houston, the executive director of the American Association of School Administrators in Arlington, Va., said he was glad the court gave districts the authority to enact such policies. But he doesn’t expect the ruling “to open the floodgates.”

One reason is cost.

“I think there is a real issue with that in large districts,” said Harold J. Kwalwasser, the general counsel for the 737,000-student Los Angeles Unified School District.

Yet some administrators are pleased that they now have an additional strategy to discourage student drug use.

“We have not seen a need to do anything that drastic,” said Charita L. Crockram, a first-year principal at the 1,227-student Collinwood High School in Cleveland. “But I like the fact that if there is a need, that this is another way in which we can deter the use of drugs within our population.”

Mossi White, a member of the board of education for the 12,990-student Provo, Utah, school district and the president of the Alexandria, Va.-based National School Boards Association, called the decision “a wonderful right for each local community.”

In fact, a few districts were waiting for a decision in the Oklahoma case so they could move ahead with drug-testing policies.

The South Dearborn Community School Corp., a 3,000-student district in the southeastern corner of Indiana, is one.

In 1998, the school board approved a policy that allowed random drug tests of students who participated in extracurricular programs and those who drove to school. But the policy was suspended two years ago, pending the outcome of a drug-testing case before the Indiana Supreme Court.

Even though the Indiana court found in favor of the school district in that case, David E. Koehler, the superintendent of the South Dearborn district, wanted to await the verdict from the U.S. Supreme Court.

Now that the ruling has been made, Mr. Koehler said he intends to recommend to the school board that the policy be reactivated.

“We have a drug problem,” he said. “And we believe that since we stopped random testing two years ago, it’s gotten worse.”

Two South Dearborn students have died because of drug overdoses that occurred off school grounds, and students have been arrested for possessing and selling drugs, but not on school property, Mr. Koehler said.

Critics Question Policy

The policy adopted in 1998 by Oklahoma’s 2,050-student Tecumseh district goes 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 Clarence Thomas in the Supreme Court’s majority opinion. He added that “the drug-abuse problem among our nation’s youth has hardly abated since Vernonia was decided in 1995.”

He 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 district’s policy, she said, “targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects.”

That attitude was echoed last week by the National PTA, which issued a statement asking: “Do schools want to require students to undergo drug tests, which may discourage participation in extracurricular activities and possibly lead to more destructive behaviors?”

Marilyn F. Johnson, the chief legal counsel for the 435,000-student Chicago public schools, expressed a similar view. Extracurricular activities “keep students engaged and keep them focused,” she said. “Imposing hurdles is not something that we’re looking to do.”

The National PTA, based in Chicago, also raised the question of how randomly testing students participating in such activities would discourage drug use by other students.

When the Tecumseh policy took effect in October of 1998, it 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 tested for traces of 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 School in 2001. Lacey, who will be a senior at Tecumseh High this fall, has served as an officer of the Future Farmers of America chapter. Both sisters were selected for random drug tests several times, and both tested negative for drug use. (“Testing the Limits of School Drug Tests,” March 13, 2002.)

The family’s challenge to the drug-testing policy lost in 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 districts nationwide took up testing of student athletes. And while a few districts pushed beyond athletes to test broader categories of students, Mr. Boyd 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. But 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,” Ms. Meoli said.

Nevertheless, Yale Kamisar, a law professor at the University of Michigan in Ann Arbor and an expert on constitutional law, said he would not be surprised if a district tried to push the boundaries of last month’s decision. “It seems to me that this case makes it much more likely that the court would approve a [drug- testing] program that includes all students,” he said.

Custodial Responsibility

Much of Justice Thomas’ majority 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 in 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.

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; Future Farmers of America participants, 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.

Related Tags:

A version of this article appeared in the July 10, 2002 edition of Education Week as Supreme Court Allows Expansion Of Schools’ Drug-Testing Policies

Events

Ed-Tech Policy Webinar Artificial Intelligence in Practice: Building a Roadmap for AI Use in Schools
AI in education: game-changer or classroom chaos? Join our webinar & learn how to navigate this evolving tech responsibly.
Education Webinar Developing and Executing Impactful Research Campaigns to Fuel Your Ed Marketing Strategy 
Develop impactful research campaigns to fuel your marketing. Join the EdWeek Research Center for a webinar with actionable take-aways for companies who sell to K-12 districts.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Privacy & Security Webinar
Navigating Cybersecurity: Securing District Documents and Data
Learn how K-12 districts are addressing the challenges of maintaining a secure tech environment, managing documents and data, automating critical processes, and doing it all with limited resources.
Content provided by Softdocs

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Oklahoma Nonbinary Student's Death Shines a Light on Families' Legal Recourse for Bullying
Students facing bullying and harassment from their peers face legal roadblocks in suing districts, but settlements appear to be on the rise
11 min read
A photograph of Nex Benedict, a nonbinary teenager who died a day after a fight in a high school bathroom, is projected during a candlelight service at Point A Gallery, on Feb. 24, 2024, in Oklahoma City. Federal officials will investigate the Oklahoma school district where Benedict died, according to a letter sent by the U.S. Department of Education on March 1, 2024.
A photograph of Nex Benedict, a nonbinary teenager who died a day after a fight in a high school restroom, is projected during a candlelight service at Point A Gallery, on Feb. 24, 2024, in Oklahoma City. Federal officials will investigate the Oklahoma school district where Benedict died, according to a letter sent by the U.S. Department of Education on March 1, 2024.
Nate Billings/The Oklahoman via AP
Law & Courts Supreme Court Declines Case on Selective High School Aiming to Boost Racial Diversity
Some advocates saw the K-12 case as the logical next step after last year's decision against affirmative action in college admissions
7 min read
Rising seniors at the Thomas Jefferson High School for Science and Technology gather on the campus in Alexandria, Va., Aug. 10, 2020. From left in front are, Dinan Elsyad, Sean Nguyen, and Tiffany Ji. From left at rear are Jordan Lee and Shibli Nomani. A federal appeals court’s ruling in May 2023 about the admissions policy at the elite public high school in Virginia may provide a vehicle for the U.S. Supreme Court to flesh out the intended scope of its ruling Thursday, June 29, 2023, banning affirmative action in college admissions.
A group of rising seniors at the Thomas Jefferson High School for Science and Technology gather on the campus in Alexandria, Va., in August 2020. From left in front are, Dinan Elsyad, Sean Nguyen, and Tiffany Ji. From left at rear are Jordan Lee and Shibli Nomani. The U.S. Supreme Court on Feb. 20 declined to hear a challenge to an admissions plan for the selective high school that was facially race neutral but designed to boost the enrollment of Black and Hispanic students.
J. Scott Applewhite/AP
Law & Courts School District Lawsuits Against Social Media Companies Are Piling Up
More than 200 school districts are now suing the major social media companies over the youth mental health crisis.
7 min read
A close up of a statue of the blindfolded lady justice against a light blue background with a ghosted image of a hands holding a cellphone with Facebook "Like" and "Love" icons hovering above it.
iStock/Getty
Law & Courts In 1974, the Supreme Court Recognized English Learners' Rights. The Story Behind That Case
The Lau v. Nichols ruling said students have a right to a "meaningful opportunity" to participate in school, but its legacy is complex.
12 min read
Associate Justice of the U.S. Supreme Court William O. Douglas is shown in an undated photo.
U.S. Supreme Court Justice William O. Douglas, shown in an undated photo, wrote the opinion in <i>Lau</i> v. <i>Nichols</i>, the 1974 decision holding that the San Francisco school system had denied Chinese-speaking schoolchildren a meaningful opportunity to participate in their education.
AP