Justices hear school drug-test case

March 29, 1995|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- School officials who want to force students to take drug tests appeared yesterday to be close to gaining a Supreme Court majority in a major new constitutional case.

A one-hour hearing revealed that supporters of such tests might have to pick up only a single vote in the court's private discussions in coming weeks in order to achieve a majority of five.

The positions that justices take, or hint at, during lawyers' arguments do not necessarily forecast how they will vote but often are a fair indication of how they lean. Closed-door deliberations will determine their decision. A ruling is expected by early summer.

The case involves a 15-year-old Vernonia, Ore., high school sophomore's constitutional challenge to a program that requires all students who play sports to take a random drug test, done without warning, even if there is no evidence that any student was a drug user. That program has been struck down by a federal appeals court, and the justices are considering whether to revive it.

The court's hearing was mostly serious, but the justices now and then stirred laughter as they made humorous references to the privacy, or lack of it, in school locker rooms. Chief Justice William H. Rehnquist wondered how much privacy there could be with "urinals lined up against the wall and guys walking naked to and from the showers."

Justice Anthony M. Kennedy, who often casts a swing vote when the court is closely divided, emerged as a defender of school officials' power to adopt wide-ranging drug testing of students.

Mr. Kennedy has written the court's only two decisions so far on drug testing: 1989 rulings that endorsed narrow forms of drug testing for government workers who hold safety or "sensitive" jobs.

He expressed concern that, if a school district did not attack a drug problem with a testing program, but instead tried to discipline individual students who became unruly, it would "alter fundamentally the relationship" between teachers and students by turning teachers into behavior police.

He also implied -- in remarks supported by Justice Antonin Scalia -- that students may have lesser rights of privacy than adults would in the workplace. Privacy of students is at the center of the Oregon case.

Justice Scalia and Chief Justice Rehnquist also made comments that suggested they favor school drug tests. Lawyers in the case have assumed that Justice Clarence Thomas would be likely to vote that way, too, although he said nothing yesterday.

If those four do support the tests, they would only have to draw one more justice to their side for a 5-4 decision. Opponents appeared yesterday to have only three votes so far.

Justice David H. Souter expressed skepticism that the Vernonia school officials had made a strong enough case to justify forced testing of student athletes. He said that evidence in the case of "actual usage is on the thin side" and that most of the evidence of a problem in Vernonia schools was of "people going around bragging" about drug use as "a smart thing to do."

Justice John Paul Stevens also aggressively questioned Timothy R. Volpert, a lawyer for the school district.

Justice Stephen G. Breyer showed some sympathy for students. He tried to help their lawyer, Thomas M. Christ, describe more pointedly the risks to student privacy from forced drug testing.

The two other justices whose votes could uphold the testing were Sandra Day O'Connor and Ruth Bader Ginsburg.

Justice O'Connor at several points challenged the scope of the Vernonia testing requirement but also suggested alternative ways to make testing a technique that could pass constitutional muster.

Justice Ginsburg similarly left no firm impression of her leanings.

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