March 20, 2002
Supreme Court Seems Ready to Extend School Drug Tests
By LINDA GREENHOUSE
WASHINGTON, March 19 — The Supreme Court appeared ready today to authorize a substantial expansion in drug testing of public school students beyond the category of student athletes, for whom the court has already found random drug testing to be constitutional.
In an hour of spirited, intense and sometimes downright nasty argument, the justices examined the implications of upholding a program in a rural Oklahoma school district that requires middle school and high school students to pass drug tests as a condition for participating in any extracurricular activity that involves interscholastic competition, including the chorus, the band and the Future Homemakers of America.
"If your argument is good for this case, then your argument is a fortiori good for testing everyone in school," Justice David H. Souter told Linda M. Meoli, the lawyer representing Independent School District No. 92 of Pottawatomie County, Okla. "Every child in every school district in the United States" would fall within the district's rationale of the need to deter drug use, he said.
Ms. Meoli said that was not necessarily so, and that a distinction could be drawn between testing all students and just those who want to take part in extracurricular activities. Students have to be in school, she said, while they could choose not to take part in activities.
Paul D. Clement, a deputy solicitor general presenting the Bush administration's view of the case, was more categorical. A schoolwide drug testing program would be constitutional, Mr. Clement said in answer to a question from Justice John Paul Stevens.
But limiting the testing to students who participate in activities was easier to defend, Mr. Clement said, because students know the rules and implicitly agree to be tested when they sign up for the activities.
"These are avoidable programs," he said.
Justice Souter disagreed that students could be said to be accepting the drug testing condition voluntarily.
"They are under tremendous pressure to agree to it," he said. "They know perfectly well that they won't get into a competitive college" if they do not participate in extracurricular activities.
By the end of the argument, the debate over tying drug testing to extracurricular activities seemed almost beside the point, because a majority of the court appeared untroubled by the prospect of a broader testing policy.
"What I miss in your argument is any recognition that you're dealing with minors," Justice Antonin Scalia said to Graham A. Boyd, an American Civil Liberties Union lawyer representing the family who challenged the Oklahoma district's policy.
The school district was "trying to train and raise these young people to be responsible adults," Justice Scalia said.
When Mr. Boyd said that the Pottawatomie district adopted the policy in the absence of any demonstrable disciplinary problem, Justice Scalia said: "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?"
To Mr. Boyd's assertion that the district had no serious drug problem, Justice Anthony M. Kennedy told him: "It seems to me that if a school district is better than other districts, with less drug use, they're entitled to keep it that way. You seem to be saying that there has to be a great crisis, where we lose a few years to drugs."
In a previous ruling, a 1995 decision that upheld the testing of athletes in the small town of Vernonia, Ore., the 6-to-3 majority put great weight on two factors: that there was a substantial drug problem and that athletes were evidently at the center of it.
Earlier Supreme Court decisions had established that in constitutional terms a drug test conducted by a government agency is a search within the meaning of the Fourth Amendment, which prohibits unreasonable searches. The question is whether any particular drug-testing program is reasonable.
The United States Court of Appeals for the 10th Circuit, in Denver, ruled last year that the broader program the Oklahoma district adopted in 1998 was not reasonable because unlike Vernonia, Pottawatomie had not shown that there was a specific problem for which drug testing was a solution.
It was that ruling that the Pottawatomie district was challenging today and that Mr. Boyd, director of the civil liberties union's drug policy litigation project, was defending on behalf of the Earls family.
Lindsay Earls graduated from the district's Tecumseh High School last June and her sister Lacey is still a student there. By the time the Earlses brought their lawsuit, the policy had been in place for nearly two years; of more than 500 students tested, three or four showed evidence of drug use.
The dissenters in the Vernonia case were Justices Souter, Stevens, and Sandra Day O'Connor. To prevail in the new case, Board of Education v. Earls, No. 01-332, Mr. Boyd therefore had to peel two other justices away from the Vernonia majority. The only two likely candidates were Justice Ruth Bader Ginsburg, who wrote a qualified concurring opinion in the Vernonia case, and Justice Stephen G. Breyer.
Justice Ginsburg appeared possibly amenable. She told Ms. Meoli, the school district's lawyer, that she found it illogical to tie drug testing to extracurricular activities because testimony in the lower court indicated that students involved in activities posed less of a drug problem "than students who don't do anything after school."
Justice Breyer seemed favorably disposed to the Pottawatomie program. "No one is arrested," he told Mr. Boyd. "It's counseling. It's an effort to deal with the demand side of drugs."
Referring to the Vernonia case, he told the lawyer: "You might be able to drive a millimeter of light" between the two cases. "Go ahead and try," he added.
But before Mr. Boyd could get very far, Justice Breyer said: "Undoubtedly, you're right. This is a slight expansion of Vernonia. But it's hard for me to see how if I came out one way in Vernonia, I should come out differently here."
The justices appeared unusually snappish. When Justice Souter was invoking the small number of positive drug tests to question the district's need for drug testing, Chief Justice William H. Rehnquist offered a helping hand to Ms. Meoli. "The existence of the policy might be expected to deter drug use, wouldn't it?" he asked the district's lawyer.
"Then we'll never know, will we," Justice Souter said with some asperity.
"Let her answer the question," the chief justice said sharply.
But most surprising was Justice Kennedy's implied slur on the plaintiffs in the case. He had posed to Mr. Boyd the hypothetical question of 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."
In fact, Lindsay Earls passed her drug test, which she challenged as an invasion of her right to privacy. She is now a freshman at Dartmouth College and was in the audience today.
Questions:
- Is the current law on drug testing as spelled out in the Veronia case consistent with the Court’s position on student searches under the TLO case? Support your answer.
- If the court approves the drug testing in this case, would such a ruling be consistent with the TLO case? Support your answer.
- How do you think the court should rule on this case? Why?
- How do you think the court will rule in this case? Why?