Little Rise In Drug Tests Seen At Schools

Little Rise In Drug Tests Seen At Schools
Posted by FoM on December 10, 1999 at 09:24:35 PT
By Jan Crawford Greenburg, Knight Ridder 
Source: Philly News
Opponents and supporters agreed on one thing when the Supreme Court ruled four years ago that schools could randomly test student athletes for illegal drug use.The ruling would spur districts across the country to begin routine drug testing of athletes in middle school and high school, they said. 
To organizations such as the American Civil Liberties Union, such a prospect was cause for outrage. It "vehemently" condemned the court's ruling, which it said could affect every school district in the country.To advocates of drug testing, however, the court's opinion gave schools a powerful way to counter student drug use. The White House adviser on drug-control policy said the court's 6-3 opinion was a "victory for kids," and predicted that schools nationwide would start routine testing. But since the court ruled in Vernonia School District v. Acton, something quite different has happened. Although some schools clearly have gone well beyond what the court specifically allowed, testing virtually anybody involved in extracurricular activities, the vast majority have not launched drug-testing programs. "That Supreme Court decision probably made no difference at all in our state," the executive director of the Illinois High School Association, David Fry, said. "I've not heard of any school district that has implemented drug testing in the last two to three years." Whether for lack of community support, the high cost of testing - about $35 a test - or legal concerns, the story across the country is much the same. Although some school districts have implemented drug testing, others have abandoned their programs. As a result, the number of testing programs has stayed constant, an assistant director with the National Federation of State High School Associations, Jerry Diehl, said. "In terms of the 15,000 or so school districts across the country, there are only a handful that have taken up drug testing," a staff attorney at the National School Boards Association, Edwin Darden, added. "There hasn't been a great sweep across the landscape of school districts moving to drug-test." But that does not mean the ruling has had no impact. Some schools have started drug testing and even taken it a step beyond what the court specifically allowed when it upheld the drug testing policy in Vernonia, an Oregon school district. In that case, the court said schools confronted with serious drug problems could randomly test athletes in junior high and high school. It marked the first time the court has allowed school officials to search students who are not suspected of wrongdoing. The opinion written by Justice Antonin Scalia said random tests were justified because of the serious drug problem in the school and because students, particularly athletes, were entitled to less protection under the Fourth Amendment than adults. The court did not decide whether schools could test all students involved in any extracurricular activity, but some lower courts recently have said the broadly worded opinion would allow it. To that end, some schools have begun testing all students involved in extracurricular activities, whether it is the chess club or the academic team, instead of limiting it to athletes. "In the last two years, word somehow got around among school boards in some regions that drug-testing students for extracurricular activities . . . might be appropriate," the counsel for the ACLU's National Drug Policy Litigation Project, Graham Boyd, said. Within the last year, the ACLU has received complaints from parents about drug testing in schools in 12 states: Arkansas, Florida, Idaho, Indiana, Louisiana, Michigan, North Carolina, Ohio, Oklahoma, Texas, Wisconsin and Wyoming, Boyd said. Schools have been more confident of their ability to begin broader testing because of a decision last year by a federal appeals court in Chicago. That decision permitted testing for students in extracurricular activities at an Indiana school, and the Supreme Court declined to review the case. Attempts to expand the decision beyond the facts of the Vernonia case, which involved only athletes, illustrate how the law can quickly develop in the wake of a Supreme Court ruling. Some of the justices anticipated it in the Vernonia case. Justice Ruth Bader Ginsburg, who joined Scalia's opinion upholding the Vernonia program, wrote separately to stress that the ruling should apply only to student athletes.She noted that schools could justify testing athletes because, among other things, they run a risk of physical harm if they use drugs while competing. But the five other justices in the majority refused to go along with Ginsburg on that point. Thomas Christ, the Portland, Ore., lawyer who represented student James Acton in his fight against the Vernonia School District's policy, said he was not surprised that school districts were expanding the scope of drug testing to include all extracurricular activity. "That's natural," he said. "It comes with any Supreme Court decision. The winner will seek to expand the ruling, and the loser will try to confine it." Christ said the justification for testing athletes, that they were at risk of injury on the playing field, could also apply to shop classes or driver's education, for example. "Once you open the door to testing without suspicion, it's kind of hard to close it again," Christ said. "And there's room in the majority opinion to go either way on whether nonathletes are subject to testing, which is probably why lower courts are struggling over it." Timothy Volpert, the lawyer who argued before the Supreme Court on behalf of the Vernonia School District, said he believed it was a "stretch from the Vernonia decision" to hold that the Fourth Amendment would allow drug testing of members of the chess club or band. That is because one of the linchpins of the decision was that student athletes, because of the nature of sports and the locker room environment, have a lesser expectation of privacy than other students, Volpert said. Volpert said he believed schools would have to show there was evidence of a serious drug problem in the nonathlete population before such testing would be legal. Vernonia officials were able to show problems existed among athletes, he said. The ACLU'S Boyd is representing two high school juniors, Daniel James and Lindsay Earls, in their effort to stop a drug testing program at their small high school 30 miles outside Oklahoma City. At issue is a policy that requires all students in grades 7 through 12 who sign up for extracurricular activities to agree to a urine test. "I feel like I'm living in 1984," James, 16, said, referring to George Orwell's novel about government oppression. James, who wants to join the school's academic team, said he "could take the drug test right now and be perfectly fine. I'd pass it, but it's the principle." Published: December 10, 1999 1999 Philadelphia Newspapers Inc.  Related Article:A.C.L.U. To Sue Over Student Drug Testing - 8/18/99
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