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US Supreme Court agreed this week to hear a case that will allow it to refine its rules on what constitutes acceptable drug testing of high school students. In an Oregon case in 1995, the Supreme Court held that student athletes could be tested because drug use was found to be prevalent at the school in question. But since then, school districts around the country have attempted to expand student drug testing to include students involved in other extracurricular activities, students who drive cars to school, and, in some cases, random, suspicionless tests of all students.

By agreeing to hear the Oklahoma case, the Supreme Court has signaled that it is ready to revisit its 1995 ruling on drug testing. The court will rule on what circumstances justify the intrusion on individual students' rights posed by drug screening.

In the present case, Pottawatomie County Board of Education vs. Earls, officials in Tecumseh, Oklahoma, the 10th US Circuit Court of Appeals found that the school district's scheme to randomly test all students involved in extracurricular activities violated constitutional prohibitions on unreasonable searches (http://www.drcnet.org/wol/179.html#stopdrugtesting). Under the district's policy, any student wishing to participate in any extracurricular activity was required to take an initial drug test and agree to be randomly tested in the future.

School officials argued that students who participate in extracurricular activities are special students and they represent the school. "We thought this would give them an incentive to say no [to drugs] if they wanted to participate," Tecumseh superintendent of schools Tom Wilsie told the Washington Post.

Wilsie told the Post the school board approved the drug testing policy because it believed it had a growing drug problem, but there has been little evidence to back that assertion. "Basically, when you feel like you have a problem, you want to take some sort of preventive measures," he said. The school district tested about 500 students from 1998 to 2000 and found only four positive drug tests, for marijuana and painkillers.

Students who objected to the drug testing policy gained representation from the American Civil Liberties Union's Drug Policy Litigation Project, which will argue the case before the Supreme Court. "The Fourth Amendment protects our privacy by preventing the government from searching us unless there is reason to believe we have done something wrong," said Graham Boyd, who filed the suit and who is the national director of the ACLU's Drug Policy Litigation Program. "Special-needs exceptions are very few and have to be proven."

"If there is no valid claim for concerns for safety, it becomes an empty act and therefore violates the Fourth Amendment," Michael Salem, another attorney for the ACLU who worked on the case told the Post. "These kids were considered envoys. But the school's public image is not a sufficient basis for engaging in blanket testing."

In overturning the policy, the 10th Circuit said the school district had no valid justification for random, suspicionless drug tests of students. With a variety of drug testing schemes in places in schools across the country, this case gives the Supreme Court a chance to refine and redefine the rules of school drug testing.

"The issue presented is of major importance... to all public schools in the nation which are responsible for the safety of the students under their supervision on a daily basis and must address drug use which threatens their safety," the school told the Supreme Court in urging it to accept the appeal.

Students in Tecumseh will have to do without that extra measure of security for the time being. The 10th Circuit ruling ended the district's drug testing program -- at least for now.

Taken from DRCNet, Issue 210, November 9, 2001

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