Site Presented By
Friday, Jul 10, 2009
ACLU lawyer Graham Boyd discusses the impact of Thursday's Supreme Court decision to allow drug testing of students who participate in extracurricular school activities.
Jun 28, 2002 | On Thursday, the Supreme Court ruled 5-4 in the case of the Board of Education vs. Earls that it is "reasonable" under the Fourth Amendment to randomly administer drug tests to all high school students who participate in extracurricular activities. In other words, it is now perfectly legal for a school to force a cheerleader or the president of the chess club to pee in a cup -- anytime -- to keep their membership in after-school programs.
The decision didn't come as a surprise. During oral arguments on the case in March, several Supreme Court justices expressed strong support for student drug testing. At one point, Justice Antonin Scalia taunted Graham Boyd, the ACLU lawyer who argued the case on behalf of defendant Lindsay Earls: "So long as you have a bunch of druggies who are orderly in class, the school can take no action. That's what you want us to rule?" At another juncture, Justice Anthony Kennedy asked Boyd a hypothetical question about whether a district could have two schools, one a "druggie school" and one with drug testing. As for the first, Justice Kennedy said, "no parent would send a child to that school, except maybe your client." (Earls, a former honor student at Tecumseh High School in Oklahoma, had objected to drug testing as an intrusion on her right to privacy.)
Even though they had anticipated defeat, opponents of the war on drugs -- and its new battlefield in the classroom -- found it deeply disappointing. These critics argue that by targeting students, particularly those who participate in extracurricular activities, be they athletes, prom queens or Future Farmers of America, participating schools unfairly single out students who are often the least likely to be doing drugs in the first place, and drive students at risk for drug use away from the activities that might take the place of getting high. Furthermore, they argue, drug testing erodes the privacy of high school students; and it has never proven to be an effective method of reducing drug use among kids.
Justice Clarence Thomas, who wrote the majority opinion for the case, clearly wasn't swayed by these arguments. "Students affected by this policy have a limited expectation of privacy," he wrote. "This policy reasonably serves the School District's important interest in detecting and preventing drug use among its students."
In an interview following the ruling, Boyd, who is the director of the ACLU Drug Policy Litigation Project, talked about the impact of the decision, which he believes will result in more drug testing in the nation's schools, and, perhaps more importantly, a serious erosion of constitutional rights to privacy for everyone -- students and adults.
What's the message being sent by this ruling?
Basically, it's disappointing on a lot of levels. It certainly erodes students' privacy in a way that has never been done by the court before, and really puts students on par with prisoners. In his decision, Justice Thomas focuses almost dispositively on the fact that students are in what he calls the "custody of the school" and that drugs are themselves dangerous. There's no drug problem in this school in question, no safety issue ... but the mere fact of being a student seems to be, in Thomas' opinion, a reason to drug-test.
The logic of the opinion is so different from Veronia, Ore. [A previous Supreme Court ruling that allowed drug testing of student athletes only.] In that case, there were a lot of reasons to uphold the drug testing: There was a drug problem in general, which was centered around athletes, who were school role models. This reason, and others, were absent in Tecumseh.
Do you expect schools across the nation to immediately start or expand drug-testing programs?
The good news in this is that schools have not previously been that responsive to the Supreme Court on this issue. It's been seven years since the Veronia decision, and still only 5 percent of all schools drug-test their athletes. Cost is one factor [drug tests cost upwards of $25 per person] but it's also a question of effectiveness. A newspaper reported yesterday that the Dublin, Ohio, school board decided to stop drug-testing students, saying that it was ineffective. They said they knew that the Supreme Court was about to rule on this issue, but they didn't care: They wanted to do what would actually help the kids.
I think it's not going to be a legal question for most schools; it's a question of what works. The politics around drug testing are very thick but the evidence of it actually helping anybody is absent. And most school boards are controlled by people who want to help kids, so they aren't going to go down this road.
