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Why The Supreme Court's Recent Decision Approving Its Use In Public Schools May Be Correct


Wednesday, Jul. 03, 2002

Last week, on the final day of its October 2001 Term, the Supreme Court issued a 5-4 opinion in the case of Board of Education v. Pottawatomie. Pottawatomie involved a school district in Tecumseh, Oklahoma, that had adopted a policy of drug-testing all middle-school and high-school students participating in extracurricular activities.

A group of high-schoolers and their parents challenged the policy, claiming that it violated the Fourth Amendment prohibition against unreasonable searches and seizures. In support of their challenge, they pointed to earlier Supreme Court decisions holding, respectively, that children do not relinquish their entitlement to privacy at the schoolhouse door, and that testing a person's urine for drugs invades a reasonable expectation of privacy. The Court rejected the respondents' challenge.

The Vernonia Precedent: A Dubious Basis For the Court's Holding

The Court relies extensively on Vernonia School Dist. 47J v. Acton, a 1995 decision that upheld random drug-testing of high school athletes. But the Vernonia Court focused at length on the differences between athletes and everyone else, making it a questionable basis for the Court's ruling.

The Vernonia facts showed that athletes are more prone to using illicit drugs than other students. The risk that drug-using athletes, moreover, could seriously injure themselves during competition raises the stakes for that group of minors. Finally, as the Court noted, athletes have already given up most of their privacy to participate in sports, where communal undressing and open showers are unavoidable facts of life.

For all of these reasons, the Court said in Vernonia, school officials could single out student athletes from the rest of the population for drug-testing. In Pottawatomie, by contrast, the Court downplayed the distinctions between athletes and others.

The opinion in Pottawatomie asserts, first, that a group of students need not evidence an existing drug problem before testing them becomes reasonable. Next, the majority announces that extra-curricular activities need not involve demanding physical exertion for drug-use to raise overriding safety concerns. And finally, the Pottawatomie Court suggests (quite implausibly) that because students may have to travel and share hotel rooms on occasion, all extra-curricular activities--even the debate team and the band--potentially involve communal undress and thus entail a limited forfeiture of privacy.

Justice Ginsburg in a dissenting opinion aptly observes that the Court's reasoning logically extends beyond participants in extra-curricular activities to the entire student body. As the dissent states, the similarities between athletes and other participants in extra-curricular activities apply to all of the students. If all students are subject to testing, however, and "[h]ad the Vernonia Court agreed that public school attendance, in and of itself permitted the state to test each student's blood or urine for drugs, the opinion in Vernonia could have saved many words."

Strikingly, not only five but seven Justices embrace the equation between athletes and other students, with respect to random drug testing. Justices Souter and O'Connor, two of the four dissenters in Pottawatomie, believe that Vernonia School District was wrongly decided and assert as much in their separate opinion. For them, neither athletes nor others may be randomly tested consistent with the Fourth Amendment.

So much for the Vernonia Court's reasoning that athletes are different.

Random Drug-Testing: Assessing the Alternatives

What divides the Justices, if not the similarities and differences between athletes and others? It is their views on the reasonableness--more generally--of random drug testing in the public schools. The majority embraces it; the dissent rejects it. In deciding who is right, we must consider possible alternatives.

The main alternative is suspicion-based testing. Among adults, a search for drugs normally calls for probable cause. Not one of the Justices, however, argues that such a high level of suspicion is necessary for dealing with schoolchildren. Indeed, a decision from 1985, New Jersey v. TLO, recognized that public school officials have custodial and tutelary responsibilities that justify much more flexible standards.

Now the decisions in Vernonia and Pottawatomie, taken together, suggest that individualized suspicion may not be required at all.

Individualized Suspicion: An Alternative Worse Than Random Testing?

If an individualized suspicion standard had prevailed in place of random screening, a school testing program might look something like the following: Johnnie stares into space during class. His eyes are often red, and he giggles uncontrollably for no apparent reason. Johnnie also stumbles from place to place, bumping into other students and tripping over imaginary obstacles. Teachers suspect drug use and ask Johnnie to provide a urine sample for testing. Under these circumstances, the test occurs on individualized suspicion, and that may seem perfectly appropriate.

But what if no one displays all of Johnnie's symptoms? Teachers know that kids are using drugs, but which ones? In the absence of a random drug testing program, school authorities may be inclined to guess.

Janie was a good student last year, but lately her grades have been plummeting. Test her. Robbie keeps to himself much of the time and has not made many friends at school. Test him. Billy sings show tunes on the stairwell. And so on.

If the school perceives its responsibilities to include monitoring and addressing drug abuse--and the war on drugs has made that perception inescapable--one plausible alternative to random testing is a witch hunt, the targeting of students who do not quite fit into the crowd.

Might students also be targeted on the basis of race, gender, or sexual orientation? Absolutely. If a group of African-American children cluster in the playground every day, teachers may suspect drug-dealing--even though a similar cluster of white students might not trigger the same suspicion. The "promiscuous" girl must be on drugs to act that way, teachers think, while the promiscuous boy is taken as the norm. The "belligerent" student who gets into fights because he is open about his gay sexuality perhaps should be tested too; after all, why is he so angry, so easily agitated?

As I discussed in a previous column, random testing among adults can sometimes provide a more equitable alternative to racial profiling for similar reasons.

The Destructive Effect of Singling People Out--Why Random May Be Better

Anticipating the problem of targeting, Justice Breyer says in his separate concurrence that "a contrary reading of the Constitution, as requiring 'individualized suspicion' in this public school context, could well lead schools to push the boundaries of 'individualized suspicion' to its outer limits, using subjective criteria that may 'unfairly target members of unpopular groups,' . . . or leave those whose behavior is slightly abnormal stigmatized in the minds of others."

The consequences of targeting can be more destructive in the public schools than in the world of adults. When school officials single out a student who is different, they become yet another set of bullies in the child's life. High School often traumatizes those who march to the beat of their own drummers, the ones who wander away from the herd and provoke laughter and teasing in their classmates. To be unusual in high school is often to be shunned or ostracized in an environment where conformity is everything.

If a teacher reacts to the child who fails to fit in by asking him to urinate for a toxicity screen, she conveys the message that there is something wrong with the child, something obvious that cries out for an explanation. The message may be most harmful if the test comes back negative.

The majority opinion recognizes this reality in its one persuasive moment:

We . . . reject respondent's argument that drug testing must presumptively be based upon an individualized reasonable suspicion of wrongdoing, because such a testing regime would be less intrusive. . . . [W]e question whether testing based on individualized suspicion in fact would be less intrusive. . . . A program of individualized suspicion might unfairly target members of unpopular groups.

The Court made a related point in Vernonia School District, suggesting that "accusatory drug testing for all students, [instead of random drug testing of athletes], transforms the process into a badge of shame. Respondents' proposal [for individualized suspicion-based testing] brings the risk that teachers will impose testing arbitrarily upon troublesome but not drug-likely students."

Randomness As A Weapon Against Peer Pressure

In addition to avoiding the cruelty of targeting students, Justice Breyer notes that random drug testing could result in an unexpected benefit. In school, he says, many children take drugs in response to peer pressure. Observing that students are ten times more likely to use illicit substances if their friends do, Justice Breyer explains that Tecumseh's testing regime "offers the adolescent a nonthreatening reason to decline his friend's drug-use invitations, namely, that he intends to play baseball, participate in debate, join the band, or engage in any one of half a dozen useful, interesting, and important activities."

Justice Breyer implicitly criticizes the war on drugs: "[T]he government's emphasis on supply side interdiction apparently has not reduced teenage use in recent years." He wisely concludes that "[t]he school's drug testing program addresses a serious national problem by focusing upon demand, avoiding the use of criminal or disciplinary sanctions, and relying upon professional counseling and treatment."

Critics may fear that the next step down the proverbial slippery slope is random drug testing of the entire student body. Their fears may be warranted, and students would undoubtedly resent such a program.

Testing the whole student body could nonetheless prove benign compared to an individualized suspicion alternative that--like the game of musical chairs--identifies a "loser" whenever one child remains standing after the others have found a place to sit.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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