School drug test debate sharpens

SUN JOURNAL

Lawsuit: A Texas district's requirement for all students has provoked a constitutional fight with far-reaching implications.

March 27, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

Perhaps it was inevitable. As worry over the drug problem in schools deepened, someone was sure to suggest sooner or later: Why not require all students to take and pass a drug test?

That is happening in a little Texas town -- Lockney, not far from the panhandle city of Plainview -- where the school board has put into effect the nation's most rigorous testing program for public school students.

Lockney's public school population in grades six through 12 is included in the testing pool, and parents must sign a consent form to allow a test. In the program's initial phase, every student must be tested. Afterward, it goes to a monthly random test of 10 percent of students.

A refusal to give consent counts as a positive drug test, with disciplinary action following.

Predictably, a constitutional fight is under way in the federal courthouse down the road in Lubbock. Judges and lawyers have seen it coming, as the trend toward drug and alcohol testing has spread through school life: starting with student athletes, then widening to others.

In 1995, the Supreme Court, in its only full-scale decision on student drug testing, upheld urine screening for students who try out for sports teams. The decision came in a case involving the school district in Vernonia, Ore.

That ruling, the National School Boards Association said at the time, gave school officials "a policy discretion that had been problematic before."

A popular policy

Drug testing of student athletes had been gaining as a policy idea since the 1986 death from a cocaine overdose of Len Bias, a University of Maryland basketball star. But it was unclear, until the court ruled, whether student testing would be found to be constitutional under the Fourth Amendment, which bans "unreasonable" searches and seizures. The court said that testing -- at least in some circumstances -- could be done constitutionally.

The Fourth Amendment limits the search authority only of public schools and colleges -- and drug tests are considered a search -- because the Constitution applies only to acts of government agencies or officials. Private schools remain free to adopt drug-testing policies to their liking.

When the court ruled in 1995, few public school districts around the nation were doing testing, according to the School Boards Association. But afterward, schools -- and then courts -- began taking the Vernonia ruling as a signal of constitutional permission.

Relying on that ruling, a federal appeals court in Chicago broadened the judicial tolerance for testing. It upheld mandatory drug tests of all students at Rushville High School in Indiana who wanted to take part in extracurricular activities -- everything from the Future Farmers of America to the band to foreign language clubs.

Dissenting judges made a prediction: The decision "takes us a long way toward condoning drug testing in the general school population."

That was in March 1998. Later that year, the Supreme Court refused to review the Rushville case. Last year, the justices declined to hear a challenge in another Indiana case to a mandatory test of public school students who had been in a fight at school.

A milestone

The next milestone has been reached in Lockney, a community of about 2,200 in the cattle-feeding and meat-packing country of the northern Texas plains.

Thursday night its school board upheld the first disciplinary decision under the policy -- the case of Brady Eugene Tannahill, 12, a sixth-grader at Lockney Junior High.

School officials ruled that Brady had to be punished because his parents refused to permit him to be tested. Brady was the only one among 400 students covered by the program whose parents would not permit testing.

His father, Larry E. Tannahill, could not be reached to comment. But he told Reuters this month: "One of my arguments has been [that] if you think you've got a problem with one of my boys, call me. I'll take care of it. The good Lord gave them to us, not to the school district."

Tannahills file suit

Brady and his father have sued the school district, the school board and Superintendent Raymond Lusk. The lawsuit says Brady "has not used any drugs" and that the school district has no reason to believe that he does.

The school board has agreed to hold off punishment until after the case ends. If the school board wins, Brady faces escalating levels of punishment, beginning with a 21-day suspension from school activities, and reaching transfer to another school and a ban on participation in extracurricular activities for the rest of junior high.

By upholding the superintendent's decision that Brady has violated the policy, the board has signaled "they want to resolve this through litigation," says Graham A. Boyd of New Haven, Conn., one of the Tannahills' lawyers. Boyd is head of the American Civil Liberties Union Foundation's project on drug policy lawsuits.

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