Last Brick in The Kindergulag


The culture of war relentlessly envelopes the American civil experience, informing and deforming our expectations of civil rights, yet none so insidiously or so caustically as that of America's schoolchildren. In the last decade a veritable Kindergulag has been erected around schoolchildren, making them subject to arbitrary curfews, physical searches, arbitrarily applied profiling schemes and in the latest institutionalized indignity random, suspicionless, warrantless drug testing for just about any kid that wants to pursue extra-curricular interests. If you're a kid in the US today, martial law isn't a civics class lecture unit. It is a fact of life as the war on drugs, the war on violence and a nearly hysterical emphasis on safety has come to excuse the infliction of every kind of humiliation upon the young.

Drug testing cases involving urinalysis of kids have been coming to federal courts for years, with high profile cases being heard in Texas, Oregon and Oklahoma and returning conflicting rulings. Last week, it came to a head when the Supreme Court handed carte blanche to school districts that want to impose drug testing on kids who've cast suspicion upon themselves by volunteering for extracurricular activities. The 5-4 decision by the Supreme Court on June 27 upheld a drug testing program in the Tecumseh County, Oklahoma school district that requires students engaged in any "competitive" extracurricular activities to submit to random drug testing.

This isn't about keeping jocks from enjoying post-practice beer and hooch. The decision approves the testing of any student who volunteers for the Future Farmers of America, Future Homemakers of America, the cheerleading squad, the choir, the color guard or even those curators of Sousa, the band. Why not test those suspicious characters in the debating society, unruly cults of freethinking argumentative types? After all, future supreme court justices in high-school debating societies today should learn as soon as possible their responsibility to abandon freedoms the moment they're told to by anyone who claims state-vested authority.

There is understandably a good deal of sympathy for drug testing as a social safety mechanism to catch kids who might be going off onto dead ends of life-destroying drug abuse, social isolation and crime. Who doesn't want to catch a kid before he takes a life-long fall? Yet before parents surrender their kids to the arms of the therapeutic enforcement state, they need to come to terms with the provenance of the interventions they are tacitly endorsing for their kids - and some of the more enduring shared consequences of drug testing.

Drug testing actually arrived in American schools by way of the armed forces and the prison system. The U.S. Navy began testing service men for drug use in 1973 when the first test kits were developed. By the late 1970s and early 1980s, prisoners in penitentiaries were being subjected to urinalysis. By the mid-1980s, defense-related contractors were pressed to test their workforces for purity. In the final days of the Reagan Administration, the Federal Drug Free Workplace Act pressed drug testing onto all federal contractors working projects of any appreciable size. >From there, against sporadic and fractured opposition by labor unions and civil liberties groups, urinalysis and drug testing programs proliferated in most every industry.

America's kids are being subject to the kind of emotional violence and privacy intrusions that only 20 or 30 years ago the nation would only inflict upon conscripts and criminals. Who knows how much farther it could go? The decision last month lowered the bar of justification to an extent that it essentially opens the way for general random drug testing of America's entire school population, according to Timothy Lynch, director of the Criminal Justice Project at the Cato Institute in Washington, DC. Grammar school kids? It would be presumptuous to even say it is unlikely, given its importance in the Bush Administration's political agenda. Give it two years. The rest of us? We'll see sooner rather than later if the therapeutic enforcement state will be satisfied with the children.

The decision should discomfit students and parents - though necessarily for the same reasons. Lindsay Earls, 19 and a student at Dartmouth College, had to directly confront her school district's urinalysis program and all the emotional violence it entailed. (School administrators literally called choir members out of a rehearsal to suffer the humiliation of urination on command.) David and Lori Earls said in an interview published on the ACLU's Web site, however, that they felt the program revoked their rights and responsibilities as parents, speaking eloquently to the perversity of a system that would supercede their custodial primacy.

The Supreme Court justices appeared eager to extend the scope of drug testing in schools in this case. (ACLU Attorney Graham Boyd recalled in oral arguments in March, Justice Anthony Kennedy taunted him, hypothesizing that his client would prefer to attend a "druggie" school - odd antagonism from so august an authority against so humble a plaintiff.) In the majority opinion, Justice Clarence Thomas tortured a decision from 1995 (Vernonia School District. v. Acton) in which the justices upheld a drug testing program for athletes which concluded that student athletes, with lowered expectations of privacy and greater consequences for drug-induced error, can legally be tested for drug use.

Thomas extended the relevance of the factors used to test "reasonableness" of the search in Vernonia to apply much more broadly (to effectively any kid) while enthroning the school district's interest in the detecting drug use. In a breathtaking act of militant jurisprudence and shabby reasoning, Justice Thomas transformed the obligations of in loco parentis that are delegated to schools by parents into a discrete new authority all its own - one that supercedes fourth amendment considerations and the parents' sentiments as well. He might as well conclude a parking valet has a right to keep your car after you've asked him to retrieve it to make sure it isn't subject to theft or vandalism because he has a superceding interest in your car's safety.

For Justice Thomas, who was with the majority in this case and in the reference case, the 1995 Vernonia School District decision, the findings were not surprising. For a student of "natural law," a philosophy that contends there is an objective moral order, inseparable from people's essential humanity which Thomas has claimed informs his jurisprudence, however, it seemed incongruous to uphold drug testing program that trumped even parents. Still, the ruling fit perfectly with the Bush Administration's agenda on student drug testing. During oral arguments in March this year, the Bush Administration's Solicitor General endorsed testing of all students - regardless of extracurricular activities - as constitutional, obviously espousing a Bush Administration ambition.

The prognosis for kids learning respect for the law and a crisp understanding of how trust and law work to maintain our society doesn't look so good. They're being prodded, searched, ordered to urinate, profiled without suspicion or warrants and being denied fourth amendment guarantees that are clear to them and around half of the Supreme Court justices and many federal district judges.

Worse, those who would exercise their consciences are being pushed to the brink. Refusing to submit to random drug tests today means giving up one's spot in the marching band. There'll be a hole in the academic resume but the student can stay in school. Once the entire school population is subject to search, however, an exercise of conscience like Lindsay's will come at the cost of dropping out of school - or it will simply be impossible. What a lesson for the young to learn: You're not worthy of trust and exercise of conscience will come at the cost of personal destruction. How positively Soviet.

The prognosis for the rest of us is just as grim. With the Supreme Court establishing that the state has a superceding interest in cultivating a therapeutic enforcement role that trumps even clear, constitutionally guaranteed freedoms, nothing should be ruled out of the realm of possibility. The state, always hungry for new entitlements, should not be trusted to limit its intrusions to the schoolhouse. Drug tests during car stops? A drug test requirement for voting and/or driver's license renewal? For filing a tax return?

Give it five years - or fifty. It is clear that the children are being acclimated to violations by the state that their grandparents, at least, would have found nearly pornographic in their nature and in their disregard of the constitution. The future supreme court justices that are being conditioned in our schools today will no doubt chuckle in disbelief some day that on demand urinalysis was ever an issue of legal contention.

Peter Cassidy writes on national affairs, the law and technology from Cambridge, Massachusetts. He can be reached at

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