Justices may favor wider drug testing of students

Okla. school case rouses intense debate


WASHINGTON - The Supreme Court appeared ready yesterday to authorize a substantial expansion in drug testing of public school students beyond the category of student athletes, for whom the court has already found random drug testing to be constitutional.

In an hour of spirited, intense, and sometimes nasty argument, the justices examined the implications of upholding a program in a rural Oklahoma school district that requires middle school and high school students to pass drug tests as a condition for participating in any extracurricular activity that involves interscholastic competition, including the chorus, the band and the Future Homemakers of America.

Justice David H. Souter told Linda M. Meoli, the lawyer representing Independent School District No. 92 of Pottawatomie County, Okla., "every child in every school district in the United States" would fall within the district's rationale of the need to deter drug use.

Meoli said that was not necessarily so, and that a distinction could be drawn between testing all students and just those who want to take part in extracurricular activities. Students have to be in school, she said, but could choose not to take part in activities.

Paul D. Clement, a deputy solicitor general presenting the Bush administration's view, said in answer to a question from Justice John Paul Stevens that a schoolwide drug-testing program would be constitutional.

But limiting the testing to students who participate in activities is easier to defend, Clement said, because students know the rules and implicitly agree to be tested when they sign up for the activities.

Souter disagreed that students could be said to be accepting the drug-testing condition voluntarily.

"They are under tremendous pressure to agree to it," he said. "They know perfectly well that they won't get into a competitive college" if they do not participate in extracurricular activities.

By the end of the argument, the debate over tying drug testing to extracurricular activities seemed almost beside the point, because a majority of the court appeared untroubled by the prospect of a broader testing policy.

"What I miss in your argument is any recognition that you're dealing with minors," Justice Antonin Scalia said to Graham A. Boyd, an American Civil Liberties Union lawyer representing the family who challenged the Oklahoma district's policy. The school district was "trying to train and raise these young people to be responsible adults," he said.

When Boyd said that the district adopted the policy in the absence of any demonstrable disciplinary problem, Scalia said: "So long as you have a bunch of druggies who are orderly in class, the school can take no action. That's what you want us to rule?"

To Boyd's assertion that the district had no serious drug problem, Justice Anthony M. Kennedy told him: "It seems to me that if a school district is better than other districts, with less drug use, they're entitled to keep it that way. You seem to be saying that there has to be a great crisis, where we lose a few years to drugs."

In a previous ruling, a 1995 decision that upheld the testing of athletes in the small town of Vernonia, Ore., the 6-3 majority put great weight on two factors: that there was a substantial drug problem and that athletes were evidently at the center of it.

Earlier Supreme Court rulings had established that in constitutional terms, a drug test conducted by a government agency is a search within the meaning of the Fourth Amendment, which prohibits unreasonable searches. The question is whether any particular testing program is reasonable.

The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year that the broader program the Oklahoma district adopted in 1998 was not reasonable because unlike Vernonia, Pottawatomie had not shown that there was a specific problem for which drug testing was a solution.

It was that ruling that the Pottawatomie district was challenging yesterday and that Boyd, director of the civil liberties union's drug policy litigation project, was defending on behalf of the Earls family. Lindsay Earls graduated from the district's Tecumseh High School last June, and her sister Lacey is still a student there. By the time the Earls brought their lawsuit, the policy had been in place for nearly two years. Of more than 500 students tested, three or four showed evidence of drug use.

The dissenters in the Vernonia case were Justices Souter, Stevens and Sandra Day O'Connor. To prevail in the new case, Boyd had to peel two other justices away from the Vernonia majority. The two likely candidates were Justice Ruth Bader Ginsburg, who wrote a qualified concurring opinion in the Vernonia case, and Justice Stephen G. Breyer.

Ginsburg told the school district's lawyer, that she found it illogical to tie drug testing to extracurricular activities because testimony in the lower court indicated that students involved in activities posed less of a drug problem "than students who don't do anything after school."

But Breyer seemed favorably disposed to the district program. "No one is arrested," he said. "It's counseling. It's an effort to deal with the demand side of drugs."

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