When the Drug War Invades the Chess Club

On Thursday, the Supreme Court ruled 5-4 in the case of the Board of Education vs. Earls that it is "reasonable" under the Fourth Amendment to randomly administer drug tests to all high school students who participate in extracurricular activities. In other words, it is now perfectly legal for a school to force a cheerleader or the president of the chess club to pee in a cup -- anytime -- to keep their membership in after-school programs.

The decision didn't come as a surprise. During oral arguments on the case in March, several Supreme Court justices expressed strong support for student drug testing. At one point, Justice Antonin Scalia taunted Graham Boyd, the ACLU lawyer who argued the case on behalf of defendant Lindsay Earls: "So long as you have a bunch of druggies who are orderly in class, the school can take no action. That's what you want us to rule?" At another juncture, Justice Anthony Kennedy asked Boyd a hypothetical question about whether a district could have two schools, one a "druggie school" and one with drug testing. As for the first, Justice Kennedy said, "no parent would send a child to that school, except maybe your client." (Earls, a former honor student at Tecumseh High School in Oklahoma, had objected to drug testing as an intrusion on her right to privacy.)

Even though they had anticipated defeat, opponents of the war on drugs -- and its new battlefield in the classroom -- found it deeply disappointing. These critics argue that by targeting students, particularly those who participate in extracurricular activities, be they athletes, prom queens or Future Farmers of America, participating schools unfairly single out students who are often the least likely to be doing drugs in the first place, and drive students at risk for drug use away from the activities that might take the place of getting high. Furthermore, they argue, drug testing erodes the privacy of high school students; and it has never proven to be an effective method of reducing drug use among kids.

Justice Clarence Thomas, who wrote the majority opinion for the case, clearly wasn't swayed by these arguments. "Students affected by this policy have a limited expectation of privacy," he wrote. "This policy reasonably serves the School District's important interest in detecting and preventing drug use among its students."

In an interview following the ruling, Boyd, who is the director of the ACLU Drug Policy Litigation Project, talked about the impact of the decision, which he believes will result in more drug testing in the nation's schools, and, perhaps more importantly, a serious erosion of constitutional rights to privacy for everyone -- students and adults.

What's the message being sent by this ruling?

Basically, it's disappointing on a lot of levels. It certainly erodes students' privacy in a way that has never been done by the court before, and really puts students on par with prisoners. In his decision, Justice Thomas focuses almost dispositively on the fact that students are in what he calls the "custody of the school" and that drugs are themselves dangerous. There's no drug problem in this school in question, no safety issue ... but the mere fact of being a student seems to be, in Thomas' opinion, a reason to drug-test.

The logic of the opinion is so different from Vernonia, Ore. [A previous Supreme Court ruling that allowed drug testing of student athletes only.] In that case, there were a lot of reasons to uphold the drug testing: There was a drug problem in general, which was centered around athletes, who were school role models. This reason, and others, were absent in Tecumseh.

Do you expect schools across the nation to immediately start or expand drug-testing programs?

The good news in this is that schools have not previously been that responsive to the Supreme Court on this issue. It's been seven years since the Vernonia decision, and still only 5 percent of all schools drug-test their athletes. Cost is one factor [drug tests cost upwards of $25 per person] but it's also a question of effectiveness. A newspaper reported yesterday that the Dublin, Ohio, school board decided to stop drug-testing students, saying that it was ineffective. They said they knew that the Supreme Court was about to rule on this issue, but they didn't care: They wanted to do what would actually help the kids.

I think it's not going to be a legal question for most schools; it's a question of what works. The politics around drug testing are very thick but the evidence of it actually helping anybody is absent. And most school boards are controlled by people who want to help kids, so they aren't going to go down this road.

So, you don't think many school districts were waiting for a Supreme Court go-ahead?

I haven't heard of a single school district that is doing this, but I'm sure they are out there. What invariably happens is a small number of parents start to make a lot of noise about needing to do something about drugs; and drug testing is an easy decision that shows that the school board is tough on drugs.

It's not that different from what Congress does with mandatory minimum sentencing: It's a cheap political gesture that keeps voters happy but in the cold light of day doesn't hold up [as a meaningful action]. No one thinks raising jail terms for crack possession is going to have an effect, but it gives them something to campaign on. Everyone knows that drug testing is at best a waste of money, but it makes [school boards] look good.

The Bush administration's lawyers have suggested that they are interested in pushing on to test all students for drugs. Do you think this is likely to happen?

I don't think that it's going to sweep the nation as a popular cause to drug-test all students, but sure, I think some school district will probably push it to the limits to see what happens. I've already litigated such a case in Lockney, Texas, where a school began drug testing all their students; but there, the very conservative judge struck it down.

Do you think the current Supreme Court would lean towards drug testing all students if the issue came up?

I think you've got to read a lot into Justice Breyer's opinion. In one little paragraph he says that for the student who really doesn't want to [be tested] they could always just not participate in the extracurricular activities; and he acknowledges that this is a serious matter, but a very different matter than saying the kid would be expelled from school altogether.

That's really what it comes down to in the question of drug testing all students: What do you do with a kid who refuses to be tested? To say that a kid can't be in the choir if they refuse the test, that's harsh. But say that they can't get a public school education at all if they object? That's awful.

So, what recourse is there currently for extracurricular students who don't want to take this test? Do they have a leg to stand on?

You've got to look further down the road. Drug testing doesn't exist in most schools right now, and if schools want to do this they have to hold hearings and get input from the public. So it's important for students and parents to engage in that process, bring information into those meetings.

What's nice is this isn't just about people complaining about privacy; it's also about educating school boards that this kind of drug testing is counterproductive. That's a very empowering argument, and we're doing everything we can to really encourage students and their parents to exercise their own voice.

In the Supreme Court decision, though, Justice Thomas wrote that "testing students who participate in extracurricular activities is a reasonably effective means of addressing the school district's legitimate concerns in preventing, deterring and detecting drug use." Why did he write this? Is there, as he suggests, proof that it was reasonably effective?

Your guess is as good as mine: There is none. There really is no evidence whatsoever that drug testing is at all effective. The evidence is the opposite.

Thomas also suggested that the Supreme Court wasn't ruling that the decision to drug-test was "wise," just that it was constitutional.

It is affirmatively unwise, in the view of most experts. In a limited sense, one could read this as support of school-board discretion. I hope the boards will be responsible in use of that discretion.

What message does this decision send about student privacy rights? Is this essentially arguing that students have no Fourth Amendment rights anymore?

This comes close to saying that high school kids have no Fourth Amendment rights. It doesn't completely upset the balance, but it does suggest a drug-war exception in schools. Lower courts are going to be tempted to endorse any kind of anti-drug measure a school wants to take.

We'll fight that, it's not a foregone conclusion, but that's one of the dangers of today's decision.

What's the likelihood that these rights will ever be returned to high school students? Is this a slippery slope of privacy loss that is impossible to climb back up?

It's a huge concern. When the Supreme Court rules, it often remains precedent for a generation at least. And they've now set the bar very low for intrusions on student privacy in the name of the war on drugs.

Of equal concern for me is that what happens to young people in the privacy realm could also have an impact on the privacy rights of that generation when they come of age. One of the fundamental ways the Fourth Amendment is measured is by reasonable but subjective expectations of privacy: "Do I personally feel offended by this?" If I don't feel it's a big deal, the government can do it. To the extent that kids become accustomed to various intrusions on their privacy, because of drug policies, they have no standing to object to other intrusions as they get older.

What other long term impact do you believe this decision will have on kids?

I'm going to make a mischievous argument. I think that in some ways the best thing that government officials could do to bring an end to the war on drugs is continue this trend of cracking down on young people.

For every student who is drug-tested, for every student who has to prove her innocence by passing a drug test, you'll have one more student that questions the drug war. Every time they teach D.A.R.E. and teach lies to kids, you'll have one more kid that doesn't believe in the drug war. Needless and groundless drug testing of high school students is just taking one more step down the road of having people say we've had enough.

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