So, you don't think many school districts were waiting for a Supreme Court go-ahead?

I haven't heard of a single school district that is doing this, but I'm sure they are out there. What invariably happens is a small number of parents start to make a lot of noise about needing to do something about drugs; and drug testing is an easy decision that shows that the school board is tough on drugs.

It's not that different from what Congress does with mandatory minimum sentencing: It's a cheap political gesture that keeps voters happy but in the cold light of day doesn't hold up [as a meaningful action]. No one thinks raising jail terms for crack possession is going to have an effect, but it gives them something to campaign on. Everyone knows that drug testing is at best a waste of money, but it makes [school boards] look good.

The Bush administration's lawyers have suggested that they are interested in pushing on to test all students for drugs. Do you think this is likely to happen?

I don't think that it's going to sweep the nation as a popular cause to drug-test all students, but sure, I think some school district will probably push it to the limits to see what happens. I've already litigated such a case in Lockney, Texas, where a school began drug testing all their students; but there, the very conservative judge struck it down.

Do you think the current Supreme Court would lean towards drug testing all students if the issue came up?

I think you've got to read a lot into Justice Breyer's opinion. In one little paragraph he says that for the student who really doesn't want to [be tested] they could always just not participate in the extracurricular activities; and he acknowledges that this is a serious matter, but a very different matter than saying the kid would be expelled from school altogether.

That's really what it comes down to in the question of drug testing all students: What do you do with a kid who refuses to be tested? To say that a kid can't be in the choir if they refuse the test, that's harsh. But say that they can't get a public school education at all if they object? That's awful.

So, what recourse is there currently for extracurricular students who don't want to take this test? Do they have a leg to stand on?

You've got to look further down the road. Drug testing doesn't exist in most schools right now, and if schools want to do this they have to hold hearings and get input from the public. So it's important for students and parents to engage in that process, bring information into those meetings.

What's nice is this isn't just about people complaining about privacy; it's also about educating school boards that this kind of drug testing is counterproductive. That's a very empowering argument, and we're doing everything we can to really encourage students and their parents to exercise their own voice.

In the Supreme Court decision, though, Justice Thomas wrote that "testing students who participate in extracurricular activities is a reasonably effective means of addressing the school district's legitimate concerns in preventing, deterring and detecting drug use." Why did he write this? Is there, as he suggests, proof that it was reasonably effective?

Your guess is as good as mine: There is none. There really is no evidence whatsoever that drug testing is at all effective. The evidence is the opposite.

Thomas also suggested that the Supreme Court wasn't ruling that the decision to drug-test was "wise," just that it was constitutional.

It is affirmatively unwise, in the view of most experts. In a limited sense, one could read this as support of school-board discretion. I hope the boards will be responsible in use of that discretion.

What message does this decision send about student privacy rights? Is this essentially arguing that students have no Fourth Amendment rights anymore?

This comes close to saying that high school kids have no Fourth Amendment rights. It doesn't completely upset the balance, but it does suggest a drug-war exception in schools. Lower courts are going to be tempted to endorse any kind of anti-drug measure a school wants to take.

We'll fight that, it's not a foregone conclusion, but that's one of the dangers of today's decision.

What's the likelihood that these rights will ever be returned to high school students? Is this a slippery slope of privacy loss that is impossible to climb back up?

It's a huge concern. When the Supreme Court rules, it often remains precedent for a generation at least. And they've now set the bar very low for intrusions on student privacy in the name of the war on drugs.

Of equal concern for me is that what happens to young people in the privacy realm could also have an impact on the privacy rights of that generation when they come of age. One of the fundamental ways the Fourth Amendment is measured is by reasonable but subjective expectations of privacy: "Do I personally feel offended by this?" If I don't feel it's a big deal, the government can do it. To the extent that kids become accustomed to various intrusions on their privacy, because of drug policies, they have no standing to object to other intrusions as they get older.

What other long term impact do you believe this decision will have on kids?

I'm going to make a mischievous argument. I think that in some ways the best thing that government officials could do to bring an end to the war on drugs is continue this trend of cracking down on young people.

For every student who is drug-tested, for every student who has to prove her innocence by passing a drug test, you'll have one more student that questions the drug war. Every time they teach D.A.R.E. and teach lies to kids, you'll have one more kid that doesn't believe in the drug war. Needless and groundless drug testing of high school students is just taking one more step down the road of having people say we've had enough.

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