School drug testing

Published 12:00 am Wednesday, July 17, 2002

Speaking for the court majority in endorsing a random drug testing policy for middle and high school students engaged in extracurricular activities, Justice Clarence Thomas wrote last week: "In upholding the constitutionality of the Policy, we express no opinion as to its wisdom."

If the five-member majority had considered the wisdom of the policy, they might not have concluded that the Oklahoma school district was using reasonable means of preventing and deterring drug use and thus not violating the Fourth Amendment’s ban on unreasonable searches and seizures.

Like just about every school system in this country, Independent School District No. 92 of Pottawatomie County, Okla., probably has some students who use drugs.

However, it does not have a major drug problem, either among the student body as a whole or among the students who participate in extracurricular activities.

This is in marked contrast to the precedent upon which last week’s ruling rests. That 1995 ruling approving the random testing of student athletes -- but not participants in other extracurricular activities -- in an Oregon school system with a growing drug problem in which athletes were among the leading drug users.

Thomas tried to dismiss as immaterial the difference in the scope of drug problem in two cases and the difference between a policy applying only to athletes and one applying to all participants in extracurricular activites. But these differences are at the very heart of determining the reasonableness of the policy.

Children in a school setting may have less expectation of Fourth Amendment protection of their privacy than an adult, but as the Supreme Court said in 1969 they do not &uot;shed their constitutional rights&uot; when they enter school grounds.

In neither the Oregon nor the Oklahoma case has the court sanctioned the random testing of an entire student body. Nor is it likely to in any future case.

As Justice Ruth Bader Ginsburg noted in last week’s main dissenting opinion, the court said in 1985, &uot;The legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.&uot; Or, as Thomas said the court did, the specific facts must be used to balance the children’s Fourth Amendment rights against proper governmental interests.

Ginsburg, joined by three other justices, concluded the circumstances in the Oklahoma case do not justify random searches of the "student population least likely to be at risk from illicit drugs."

The dissenting justices have the better argument. It is not necessary to have "probable cause" -- the standard in criminal matters -- to test students for drug usage, but there should be reasonable suspicion. That did not exist in this case for the group of students singled out for random testing.

By adopting the drug testing policy under the circumstances that existed, the Oklahoma board, in Ginsburg’s judgment, failed its tutelary duty to teach by example.

She quoted from a 1943 ruling, "That (schools) are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.&uot;

By condoning the board’s actions, the Supreme Court made an unwise decision.

-- The Birmingham