Supreme Court to rule on drug testing

March 27, 1995|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- After a cross-country train trip and a weekend family gathering here, 15-year-old James Acton will pursue tomorrow his own civics lesson, with the Supreme Court as his teacher.

He will be in the audience as the justices hold a hearing on his case and its central issue: the constitutionality of compulsory drug testing at school. James was told, as a 12-year-old seventh-grader in Oregon, that he, along with others, had to submit to a urine test even though no one suspected him of using drugs.

The constitutional dispute the court will decide by summer focuses on the privacy rights of public school students, particularly student-athletes like James. But it has the potential for wider impact, perhaps producing a major ruling on the government's power to impose the most sweeping kind of drug tests: those conducted at random, without warning, based on no real suspicion that someone is a user.

Almost unknown a few years ago, random drug testing now exists across the nation in the public and private sectors. The number of such tests increased 1,200 percent between 1987 and 1993, according to a survey by the American Management Association. Counting all forms of drug testing, the survey found that 15 million Americans were tested for drugs in 1993, up from 7 million in 1987.

James Acton's case dates to 1991, when he tried out for football at Washington Grade School in Vernonia, Ore., a logging town an hour's drive from Portland. A drug test at the start of the season, plus surprise random tests later, were required of James and others. His refusal started his case.

Asked in court why he refused, James replied: "Because I feel that they have no reason to think I was taking drugs."

He was not available for interviews last week as he and his parents, Judy and Wayne Acton, and his brothers, Simon and Jason, traveled by Amtrak to Washington. Two weeks ago, deluged by calls from the news media, the high school sophomore wrote a statement explaining why he is challenging forced drug testing.

"I think what I did has been made into a big deal," he wrote. "But I think I did the right thing, and other people should also stand up for their beliefs.

"Everybody should be taught that they have" the same right of privacy he is claiming, "before it's taken away," he said.

"Making kids take a drug test without any proof that they are taking drugs is just like searching a house without a warrant or proof of something wrong," he added.

National controversy

The teen-ager is caught up in a national controversy that goes back at least a dozen years, but intensified after an incident in Maryland in 1986. Len Bias, an All-America basketball star at the University of Maryland, was celebrating his selection in the pro draft when he collapsed in his dorm room. He died shortly afterward, when his heart stopped from a cocaine overdose.

Since then, drug testing and sports have been closely linked in public discussion of anti-drug efforts. James Acton's case fits that pattern. The Supreme Court may choose to decide his case on a narrow basis, limited to the rights of public school students when school officials perceive a student drug problem.

But it is possible that the outcome could affect drug testing not only in schools, but in government at all levels. A broad ruling might even affect workers' rights in the private sector.

In effect, the government has already lined up against James and his civil rights lawyers. Under a 1986 anti-drug law, the federal government subsidizes random testing of public school athletes: $275 million went to schools last fiscal year, including $7,500 to the Vernonia school district.

While there is no drug testing in Maryland for sports at the high school level or below, college athletes are tested routinely. Those who take part in NCAA championships face testing beforehand. Drug testing is common in Olympics and pro sports -- all private and thus not covered by the Constitution's guarantee of individual privacy.

The Supreme Court has issued two rulings on the Constitution and drug testing, and in those it upheld tests only in limited forms: as a condition for someone in a job involving public safety, such as airline pilots, police and firefighter positions, and for nuclear power plant jobs, or as a response to a specific incident.

In such situations, testing is triggered by something specific and tangible. But James Acton's case reaches the next level: the test that occurs without suspicion, without warning and at random. Such testing has become common in recent years as officials have sought to ferret out users who they think might otherwise avoid detection.

Maryland's attorney general last issued legal advice on drug testing of state and local government workers six years ago. The opinion said that random drug testing could not be imposed generally on public employees who are not suspected of using drugs. But, it added, suspicion-less testing is legal if confined to workers in "sensitive positions."

Student problems

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