Dangerous lessons - Civil Liberties Watch - discussion of Supreme Courts ruling on drug testing of students

Humanist, Nov-Dec, 2002 by Richard Glen Boire

The Supreme Court's ruling on June 27, 2002, giving public school authorities the green light to conduct random, suspicious drug testing of all junior and senior high school students wishing to participate in extracurricular activities, teaches by example. The lesson, unfortunately, is that the Fourth Amendment has become a historical artifact, a quaint relic from bygone days when our country honored the "scrupulous protection of constitutional freedoms of the individual." (See the West Virginia State Board of Education v. Barnette case.)

The Court's ruling turns logic on its head, giving the insides of students' bodies less protection than the insides of their backpacks, the contents of their bodily fluids less protection than the contents of their telephone calls. The decision elevates the myopic hysteria of a preposterous "zero-tolerance" drug war over basic values such as respect and dignity for our nation's young people.

The Court's ruling treats America's teenage students like suspects. If a student seeks to participate in after-school activities, his or her urine can be taken and tested for any reason or for no reason at all. Gone are any requirements for individualized suspicion. Trust and respect have been replaced with a generalized distrust--an accusatory, authoritarian demand that students prove their "innocence" at the whim of the schoolmaster.

The Court majority reasoned that requiring students to yield up their urine for examination as a prerequisite to participating in extracurricular activities would serve as a deterrent to drug use. It reasoned that students who seek to join the debate team, write for the student newspaper, play in the marching band, or participate in any other after school activities would be dissuaded from using drugs knowing that their urine would be tested.

While some students may indeed be deterred from using drugs, the conventional wisdom (supported by empirical data) is that students who participate in extracurricular activities are some of the least likely to use drugs. Noting this, Justice Ruth Bader Ginsburg, whose dissenting opinion was joined by Justices John Paul Stevens, Sandra Day O'Connor, and David Souter, harshly condemned random testing of such students and describes it as "unreasonable, capricious and even perverse." Even when applied to students who do use drugs, the Court's decision merely makes matters worse.

The federal government has tried everything from threatening imprisonment to yanking student loans to spending hundreds of millions of dollars on "just say no" advertisements, and still some students continue to experiment with marijuana and other drugs. Like it or not, some students will use illegal drugs before graduating from high school, just as some students will have sex. Perhaps it's time to rethink the wisdom of declaring a "war on drugs" and adopt instead a realistic and effective strategy more akin to safe-sex education.

Ultimately, if a student does choose to experiment with an illegal drug (or a legal drug like alcohol), I suspect that many parents, like myself, would prefer that their child be taught the skills necessary to survive the experiment with as little harm as possible to self or others. The Drug Abuse Resistance Education (DARE) program--the nation's primary "drug education" curriculum--is taught by police officers, not drug experts, and is centered on intimidation and threats of criminal prosecution rather than on harm reduction. Random, suspicious urine testing fits the same tired mold.

Among the significant gaps in the majority's reasoning is its failure to consider the individual and social ramifications of deterring any student (whether or not they use drugs) from participating in after school activities. Students who on principle prefer to keep their bodily fluids to themselves or who consider urine testing to be a gross invasion of privacy will be dissuaded from participating in after school activities altogether. Similarly, students who do use drugs and who either test positive or forego the test for fear of what it might reveal will be banned from after-school activities and thus left to their own devices.

Extracurricular programs are valued for producing "well-rounded" students. Many adults look back on their extramural activities as some of the most educational, enriching, and formative experiences of their young lives. Extracurricular programs build citizenship, and for many universities participation in after-school clubs and academic teams is a decisive admissions criterion. Whether or not students use drugs, it makes no sense to bar them from the very activities that build citizenship and help prepare them for leadership roles in the workforce, or help them get into college. In other words, a policy that deters students or bans them outright from participating in extracurricular activities isn't just bad for students, it's bad for society.

Aside from eviscerating the Fourth Amendment rights of the nation's twenty-three million public school students and imposing a punishment that harms society as much at it harms students, the decision foreshadows a constitutional dark age. When a young person is told to urinate in a cup within earshot of a school authority listening intently, and then ordered to turn over his or her urine for chemical examination, what "reasonable expectation of privacy" remains? When today's students graduate and walk out the schoolhouse gates, what will become of society's "reasonable expectation of privacy"?