In the Court's Words

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Here are excerpts from the majority, concurring, and dissenting opinions in the U.S. Supreme Court's June 27 decision in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, the student drug- testing case from Tecumseh, Okla.:

Majority Opinion

Majority opinion by Justice Clarence Thomas, joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy, and Stephen G. Breyer:

The Student Activities Drug Testing Policy implemented by the board of education of Independent School District No. 92 of Pottawatomie County (school district) requires all students who participate in competitive extracurricular activities to submit to drug testing. Because this policy reasonably serves the school district's important interest in detecting and preventing drug use among its students, we hold that it is constitutional.

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... A student's privacy interest is limited in a public school environment where the state is responsible for maintaining discipline, health, and safety. Schoolchildren are routinely required to submit to physical examinations and vaccinations against disease. Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults.

... Respondents argue that because children participating in nonathletic extracurricular activities are not subject to regular physicals and communal undress, they have a stronger expectation of privacy than the athletes tested in Vernonia [School District v. Acton]. This distinction, however, was not essential to our decision in Vernonia, which depended primarily upon the school's custodial responsibility and authority.

... We also reject respondents' argument that drug testing must presumptively be based upon an individualized reasonable suspicion of wrongdoing because such a testing regime would be less intrusive. In this context, the Fourth Amendment does not require a finding of individualized suspicion, and we decline to impose such a requirement on schools attempting to prevent and detect drug use by students.

Concurring Opinion

Concurring opinion by Justice Stephen G. Breyer:

[N]ot everyone would agree with this court's characterization of the privacy-related significance of urine sampling as negligible. Some find the procedure no more intrusive than a routine medical examination, but others are seriously embarrassed by the need to provide a urine sample with someone listening outside the closed restroom stall.. When trying to resolve this kind of close question involving the interpretation of constitutional values, I believe it important that the school board provided an opportunity for the airing of these differences at public meetings designed to give the entire community the opportunity to be able to participate in developing the drug policy. The board used this democratic, participatory process to uncover and to resolve differences, giving weight to the fact that the process, in this instance, revealed little, if any, objection to the proposed testing program.

Dissenting Opinion

Dissenting opinion by Justice Ruth Bader Ginsburg, joined by Justices John Paul Stevens, Sandra Day O'Connor, and David H. Souter:

... Concern for student health and safety is basic to the school's caretaking, and it is undeniable that drug use carries a variety of health risks for children, including death from overdose.

Those risks, however, are present for all schoolchildren. Vernonia cannot be read to endorse invasive and suspicionless drug testing of all students upon any evidence of drug use, solely because drugs jeopardize the life and health of those who use them. Many children, like many adults, engage in dangerous activities on their own time; that the children are enrolled in school scarcely allows government to monitor all such activities.

... While extracurricular activities are voluntary in the sense that they are not required for graduation, they are part of the school's educational program. Participation in such activities is a key component of school life. ...

... 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.

... [T]his case resembles Vernonia only in that the school districts in both cases conditioned engagement in activities outside the obligatory curriculum on random subjection to urinalysis. The defining characteristics of the two programs, however, are entirely dissimilar.

Vol. 21, Issue 42, Page 42

Published in Print: July 10, 2002, as In the Court's Words
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