|The Supreme Court Vs Teens|
Posted by CN Staff on May 18, 2002 at 21:19:02 PT|
By Mark Boal
Source: Rolling Stone
Hard-line Judges Are About To Give A Thumbs-Up To Drug Tests In Schools Across The Nation.
After twenty years of prayer and hard lobbying, drug warriors are on the verge of succeeding in their effort to institute random drug testing of high school students. Sometime in June, the Supreme Court is expected to issue a decision in favor of an Oklahoma school with an aggressive anti-drug program.
The ruling will loosen the standard for acceptable drug testing of students: About 500 schools currently test kids, most of them athletes, but soon any students involved in other school activities might be subject to the involuntary tests, and students and parents will have not higher authority to whom they can protest.
"I think saying that this ruling applies to the 27 million kids in grades six to twelve is not an exaggeration, even if the court doesn't go so far as to say it literally does," say Graham Boyd, the American civil Liberties Union lawyer who brought the case against Tecumseh High, a tiny school of 600 that conducts random tests on students who participate in clubs. The ACLU and a school choir member named Lindsay Earls challenged the school's authority to invade Earls' privacy after she was forced to pee in a cup while teachers listened outside the bathroom stall.
"Thanks be to almighty God, who has guided us, protected us and comforted us in this effort," says DeForest Rathbone of the Supreme Court hearing, which occurred in March. By "us", Rathbone means his group, the National Institute of Citizen Anti-Drug Policy, and those it is aligned with including the Drug Free America Foundation, Drug Free Kids, and the Alcohol and Drug Testing Industry Association which organized the legal briefs and now have even secured funding to push testing to the front of the Drug War.
Last year, Rathbone and his allies sneaked a clause into President Bush's education bill authorizing the government to pay for testing at public schools. As a result, billions in block grants will soon be available to schools that want to test. According to Julie Underwood, counsel for the Ntional School Boards Association, many of her members are just waiting for the court to give its constitutional green light. Says Rathbone, "People don't realize how far along we are with this thing. It's a done deal."
None of this would have been conceivable four or five years ago, when student drug testing was a marginal issue in Washington. But legal and financial backing has transformed a loser into a political winner.
In the early Eighties, soldiers were the only people in America who were tested. Gradually, anti-drug groups pushed testing beyond the military and into civilian and corporate life. In 1987, twenty percent of businesses in the American Management Association tested their employees, but now, after a steady campaign supported by the federal government, testing is the norm in seventy-one percent of its members. Many expect this pattern to repeat in schools.
If the court's majority holds up Tecumseh as a model, then going to high school in America will soon be an experience straight out of Orwell's 1984. At Tecumseh, urine testing is only part of a larger control paradigm that includes cops at the front door, cameras in the hallways, drug-sniffing dogs performing locker checks and teachers who are trained to interrogate suspicious-looking students. Bottom line: 2002 may go down as the year when the right wing opened a new front in the Drug war.
The irony here is that it was the ACLU that enabled this giant new opportunity for drug testing. Seven years ago, after the ACLU lost a Supreme Court case permitting testing of student athletes, the ACLU's Boyd decided to prepare for the next schools that would push further. "I knew inevitably this was going to crop up around the courts and end up in the Supreme Court," he says. "I made a plan, back in '99, to try and bring this forward and present it in a way that would be favorable to the ACLU."
Eventually he found his "ideal plaintiff," as he puts it, in Lindsay Earls. She was a choir girl, and a folk singer, pretty In overalls, and Ivy League material. She didn't do drugs, ever, and was humiliated by the test. When Boyd met her the first time, she said she was willing to go the long haul up the court system.
So the ACLU and the school squared off. The ACLU triumphed in appeals court, but at the Supreme Court hearing in March, several judges openly mocked Boyd. Glowering down from the bench, Justice Antonin Scalia at one point chastised him, "What I seem to miss in your argument is any recognition of the fact that we are dealing with minors," as if Boyd didn't know his own client's age. Then Scalia demanded, "Do you think life and death is really not involved the fight against drugs?"
"It absolutely is," Boyd stammered, "and where there's "
"Let's not minimize that," Scalia said, sharply cutting him off.
Boyd recovered and moved on, but the damage was already done. In fact, it had been done a long time ago, when organizers of the campaign to moderate harsh drug laws ceded the moral high ground of helping kids. "When you have kids involved, that's a battlefield that's going to favor conservative, parent-type groups," says William D. McColl, director of national affairs for the nation's leading reform group, the Drug Policy Alliance. "We do much better with adult liberties, where there are infringements with racially tinged outcomes."
Ultimately, the right wing outwitted the left on this issue by stealing the left's rhetoric. For years, drug-law reformers have said drugs ought to be considered a health problem, not a criminal-justice matter. Now the right is arguing that the constitutionality of testing students turns on whether drugs are, indeed, conceived of as a health epidemic.
The Drug Free America Foundation, a group that helped underwrite an amicus brief for Tecumseh, peddles this argument extremely well. Calvina Fay, the group's executive director, says, "We had an outbreak of head lice in my daughter's school, and they did a search they didn't ask for my permission. You were sent home if you had it, and you couldn't come back until you'd been treated for head lice. I didn't hear any parents screaming then about privacy rights, and head lice is nowhere the deadly situation that drugs are."
Indeed, the more drug-law reformers fight student drug testing, the more they're seen as dopeheads who want to help kids get stoned. So they are letting the issue slide, rather than waste political capital. "Fighting school drug testing is like Pickett's charge," says McColl. "You are standing in withering fire and have to cross a field two miles long." Plus, he says, "It's not an issue we have activists going out on the street for."
But conceding this battle has left a power vacuum in Washington, which the anti-drug movement is only too happy to fill: It has already secured federal funding to cover the expense of testing students. Testing promoters asked Indiana Republican Rep. Mark Souder to insert a two-line "stealth" clause in the 700 pages of the president's education bill. The clause, a darling of drug warriors for nearly ten years, permits schools to tap giant block grants to pay for their testing programs. It was months before anybody in the drug reform movement noticed it was there. "We snuck it by those druggie liberals!" gloats Rathbone.
The next step is testing every student across the board, and President Bush appears ready to help make it happen. His deputy solicitor general, Paul D. Clement, who argued a brief on behalf of Tecumseh, said that a school-wide testing program "would be constitutional." The White House was also willing to go on the record about its approval of drug testing. "The Bush administration believes in empowering states and school districts with flexibility," says spokeswoman Mercy Viana. "[Drug testing] is one of the several tools available to districts to help make schools safe and drug-free."
With a president willing to support and pay for drug testing in local schools, and a five-to-four Supreme Court decision in favor of Tecumseh a near certainty, everybody sees the spread of testing to many of the nation's 15,000 junior and senior high schools as inevitable.
The only question is how far the Supreme Court will open the door to mandatory testing for all students. But Rathbone and the other drug warriors are already looking ahead to the next case. "There's a school down in Lockney, Texas, that tests every student," Rathbone says. "We have our eye on it."
DOES TESTING ACTUALLY REDUCE DRUG USE?
In the politically charged debate over drug testing, once fact gets continually cited to show that testing deters casual drug users, help addicts and saves everyone else from temptation and peer pressure: After corporations started drug-testing employees in the mid-Eighties, the number of positive tests fell. True enough in 1988, when testing was relatively new, one out of ten workers who were tested turned out to be positive. By 2001, it was one out of twenty workers. The factoid pops up in various forms in the briefs, Web sties and policy papers of the Drug War, where it's repeated like a mantra: Testing works. Testing works.
It's a compelling argument but it's wrong. The reason that the number of positives has declined is that companies changed the way they administered their tests. Instead of only testing people suspected of drug use, as they did in the Eighties, firms in the Nineties started testing all employees, thus expanding the pool of people tested. That diluted the chance of catching a drug user and automatically lowered the percentage of positives.
Indeed, researchers at the American Management Association studied this dynamic and reached the same conclusion in an industry report: "As more workers are tested for reasons other than suspicion, the test-positive ration falls."
The most authoritative study of testing's efficacy was conducted by the National Academy of Sciences, the country's leading scientific body. A panel of NAS scientists examined every piece of known evidence about drug testing. Their findings, published in 1994, concluded, "There is as yet no conclusive scientific evidence from properly controlled studies that employment drug-testing programs widely discourage drug use or encourage rehabilitation."
HOW TO BEAT THE TEST
Drug-testing companies see the Tecumseh case as opening the door to a potential windfall of millions of dollars as thousands of schools become new customers but the tests are surprisingly unreliable: They have a high false-positive rate, and they can often be outwitted by the test-taker.
Anyone who wants to beat the common urine test has an entire industry ready to help. Kits with brand names such as Detox, NuKlear Urine Additive and Zydot Ultimate Blend are sold online. Then there are the dozens of off-brand herbal formulas, self-test kits, chewable tablets, teas and ready-to-drink mixes on the market. Finally, the time-tested business of selling other people's urine continues to thrive, though it's been updated with the small, concealable Urinator (offered by Cleartest), a battery-powered device that warms "clean," synthetically created urine.
According to Kevin Zeese, president of Common Sense for Drug Policy, these products are not necessary to beat the urine test. "What works best is not giving your first urine of the day," he says. "Second, when you give a urine sample, do so with a full bladder, after drinking a variety of fluids. That decreases the percentage of drug metabolites in the urine." Zeese adds that the dilution method works most of the time for marijuana, traces of which can remain in the body for weeks and sometimes months, depending on body-fat levels. Other drugs such as cocaine, Ecstasy and methamphetamine disappear from the urine twenty-four to forty-eight hours after consumption.
As for the coming generation of hair tests, which can detect drug metabolites for months or even a year, Zeese has an even more basic recommendation: Call a lawyer.
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