Our privacy stolen one cup at a time

April 08, 2002|By Mark Cloud

ATLANTA -- Think the idea of privacy rights is just a bunch of legal mumbo jumbo? Not concerned about the government eroding your rights? Then check out your Supreme Court, which is continuing its crusade to force innocent kids to urinate in cups in front of teachers.

Like me, you may remember those carefree days of the '70s and '80s when the Supreme Court didn't make us public schoolers urinate in front of our educators. We were so naive that in 1985 we paid scant attention when the court decided that public school teachers need not adhere to the requirement that searches be based on probable cause to believe that a crime has occurred.

Sure, the court approved the search of a schoolgirl's purse based not on probable cause but on an assistant vice principal's mere suspicion that it might contain cigarettes (even though possessing cigarettes was not against the school rules). And sure, while rummaging around in the purse the assistant veep found what the court called "marihuana." But what did we care? None of that had anything to do with our urine. Right?

Well, what we dewy-eyed ones failed to appreciate was this: By getting that pesky probable cause requirement out of our public schools, the court had laid the groundwork for its big move in the assault on our youth's urine. The court then bided its time until 1995, when it finally found what it was looking for in Vernonia, Ore.

The good folks of Vernonia became convinced that some students' rude classroom behavior was the result of "drugs." The obvious solution? Mandatory drug tests for athletes, of course.

As for boys, they had to stand at a urinal and do their business in a cup while a male teacher stood behind them watching and listening for normal sounds of urination. The girls, though, were allowed to maintain some dignity by urinating into their cups in bathroom stalls, where they could be heard but not seen by the looming female monitors.

The government can't force someone who's done nothing wrong to give a urine sample, can it? There has to be probable cause to believe drugs are present in order to force such a governmental intrusion, right? Wrong, said the Supreme Court, because there's no probable cause requirement in public schools.

And just to convince us of the need for mandatory urinating, the court explained that student-athletes have lessened privacy expectations because they use locker rooms where they sometimes get naked in front of other kids.

The court even supported this compelling rationale with language from a lower court opinion providing that there's "an element of `communal undress' inherent in athletic participation." Powerful stuff, indeed.

But what does that have to do with being forced to urinate in a cup? The point is that six people on the Supreme Court say there's a connection between showering after the game and mandatory drug tests, and what they say goes.

Now the Supreme Court is considering a mandatory urination case from Tecumseh, Okla.

Like Vernonia, Tecumseh has decided that forcing its children to urinate in front of adults is a good thing. But Tecumseh doesn't want only its athletes' urine, it wants that of non-athletes, too. If Tecumseh boys or girls want to join activities such as band, choir or Future Farmers of America, they have to urinate in a cup. Of 505 students tested under the policy, three tested positive for drugs. Which means that 99.4 percent tested negative. That's some drug epidemic.

Lindsay Earls, a former choir member who's now at Dartmouth, challenged the constitutionality of the policy. A federal appeals court ruled in her favor, finding that the policy violated the Fourth Amendment need for individualized reasonable suspicion before a search. But the Supreme Court is now reviewing that decision.

Maybe the court won't use Tecumseh as an opportunity to obtain even more child urine. But don't count on it. Justice Antonin Scalia, who wrote the sometimes-naked-athletes-must-urinate opinion, reportedly said to a Tecumseh choir girl's lawyer at oral argument, "Do you think life and death are not involved in the fight against drugs?"

And Justice Stephen Breyer, who voted with Justice Scalia in the naked athletes case, noted, "It's hard for me to see if I came out one way [then] I'd come out different here." (Is communal undress inherent in choir participation, too?)

And Justice Anthony Kennedy, another naked-athletes-must-urinate believer, said to the choir girl's lawyer that no one would prefer a "druggie school --- except, perhaps, your client."

Still not worried about your eroding privacy rights? Good. Then you probably won't mind when some public school decides in 10 years or so that every school kid must urinate in a cup or have a needle stuck in an arm to give a blood sample. After all, a couple of them might have smoked that "marihuana."

Mark Cloud is a staff attorney for the Georgia Court of Appeals and a free-lance writer. He lives in Atlanta.

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