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LOCKERS AND LOCKER ROOMS: Should Students' Privacy Rights Bar Random Drug Testing?


Monday, Apr. 09, 2001

Last week, the Tenth Circuit Court of Appeals ruled that a Tecumseh, Oklahoma high school could not administer random drug tests to students who wanted to participate in extracurricular activities — even though the school used the results to send drug users to treatment.

A student, represented by the American Civil Liberties Union, challenged the tests on Fourth Amendment grounds. While the legal issue is a legitimately close call, the adversarial nature of the proceedings is troubling. If sending kids to drug treatment is the right thing to do, are we being overly concerned with their right to privacy?

Two Key Supreme Court Cases on Students' Rights

More recently, in Vernonia School Dist. 47J v. Acton, the high court allowed an Oregon school to test student athletes for drugs. In addressing the Fourth Amendment issues, the Court found that student athletes had a lesser expectation of privacy than other students did, because the athletes subjected themselves to physical exams, showered communally, and so on.

Equally important, the Court held, was the fact that the drug testing policy was specifically not designed to serve up toking tailbacks to the police: the test results went only to school officials, and the consequence of positive tests was mandatory drug treatment.

Students' Rights in the Tecumseh Case

In Tecumseh, the ACLU challenged a drug testing policy that applied not just to athletes but to every student who participated in extracurricular activities. The Tecumseh case differs from the Supreme Court's student athlete case in important ways. In particular, non-athletic extracurricular activities do not come at the same cost to privacy that athletic activity does: You don't need a physical to write for the newspaper, and you don't have to shower with the rest of the chess team.

But in one critical respect, the Tecumseh and Vernonia cases are the same: in both, the programs were aimed at getting help to young drug users. In Tecumseh, the test results went only to school officials, not the police, and the effect of positive tests was mandatory drug treatment. In both cases, the schools were acting in their roles as the guardians of children, trying to protect young bodies and minds from drugs.

The Privacy-Criminality Connection

The real problem with the Tecumseh case is not the outcome, but the plaintiff's approach. As noted above, the student who sued the Tecumseh school was represented by the ACLU. This in itself is unremarkable: the ACLU has been challenging school testing of students in New Jersey, Connecticut, and other states for years now. What is noteworthy, however, is that for years, the ACLU and others have promoted what they see as a closely related position: that drug use should not be indiscriminately criminalized, and should be viewed more as a problem of addiction requiring treatment.

These two positions — the one, highly protective of privacy rights; the other, highly critical of criminalizing drug use — appear to be of a piece. After all, if prosecuting people for drug possession is a bad idea, wouldn't you want to limit the state's ability to find out if you've been using drugs? And if students have privacy rights just like adults, wouldn't these rights extend to protection against random drug tests?

Schools v. Students: A Case No One Wins

When it comes to student drug users, the ACLU is right: our first approach should be to try to help them, to give them treatment, counseling, and attention. We should do so for lots of reasons: We should never write off children as criminals until we've tried to help; if successful, treatment is better (and cheaper) for both the child and society; and ultimately, trying to correct kids rather than punish them is what grownups are supposed to do.

Helping students isn't the same thing as punishing them. The fifth grader told to clean up his mess, the eighth grader deprived of her cigarettes, and the junior forced to go to drug treatment: each no doubt views his or her assigned fate as punitive. Each suffers a loss of liberty at the hands of a powerful adult.

As grownups, we know better. In all of these examples, the school is doing exactly what schools are supposed to do: correcting students' behavior. The students may disagree. They may, through the distorted lens of adolescence, view all of this as essentially adversarial. That, as Flannery O'Connor said, is regrettable, but their tastes are not to be consulted, they are being formed.

If treating young drug users is simply the right thing to do, then treating their privacy with too much deference is a mistake. To see why, assume for the moment that schoolteachers have a reasonable suspicion that a student is using drugs. Let's say another student tells a teacher that Justin was seen smoking marijuana, and that Britney has bragged about using Ecstasy at rave parties. As the law stands now, this would be enough — remember, students don't have the same rights that adults do — for the school to search the students' personal effects and lockers, and maybe even to drug test them.

Justin and Britney have been "ratted out" and "busted"; how could they view anything the school does with them as anything but invasive and punitive? The school will have treated them as miscreants ("criminals" is too strong a word); they will view the school and themselves accordingly. And if the ACLU is there to file a lawsuit on their behalf, their view will have been vindicated by a fraction of the adult world.

Compare this to Tecumseh's approach. Since no one is singled out or caught, no one can be stigmatized for being tested. Since the school's search for drugs is suspicionless, no one can feel suspected. Again, our kids may not see it this way. That's okay. A parent who says, "This will hurt me more than it does you," and then hits his kids, is a liar. A school that tells students it will not punish drug users, then randomly tests and sends drug users to treatment, is telling the truth. In time, our kids will figure out the difference.

Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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