Law & Courts

Supreme Court Allows Expansion Of Schools’ Drug-Testing Policies

By Mark Walsh — July 10, 2002 8 min read
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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.

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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

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