- The Washington Times - Friday, November 9, 2001

The Supreme Court agreed yesterday to decide if public schools could require routine drug testing for students who did not play interscholastic sports.
The case, which was expected to set boundaries for school drug-testing, involved a young Oklahoma woman from a rural high school who said yesterday she was humiliated and angered by the three urine tests required because she joined the choir, marching band and academic team.
"I felt that they were accusing me just because I sang, just because I played an instrument, just because I was smart and on the academic team. I think it's absolutely insane," Lindsay Earls, 19, said in an interview from Dartmouth College, where she is a freshman.
The Pottawatomie County Board of Education appealed the 10th U.S. Circuit Court of Appeals ruling that the school board conducted unconstitutional searches in the testing required of extracurricular high school groups, also including Future Farmers of America, Future Homemakers of America, the color guard, pompom squad and chess club.
"The earlier case allowed testing of football players in part because the stars were role models. Not here. Nobody ever said, 'I want to party with that kid because he's in Future Farmers of America,'" said Miss Earls' attorney, Graham A. Boyd of New Haven, Conn.
Only four of the 500 tests conducted from 1998 to 2000 were positive, raising a second issue of whether standards for testing differed if drugs were not widely used.
The appeal was expected to clarify issues unanswered by the court's 1995 opinion recognizing the "special needs" of schools that justified in testing a football team whose stars were portrayed as leaders of the school "drug culture."
"Deterring drug use by our nation's schoolchildren is at least as important as enhancing efficient enforcement of the nation's laws against the importation of drugs or deterring drug use by engineers and trainmen," the court said then in a case from Vernonia, Ore.
The 6-3 opinion was written by Justice Antonin Scalia and joined by Chief Justice William H. Rehnquist, with the ideological mix of Justices Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Ruth Bader Ginsburg. Dissenting were Justices Sandra Day O'Connor, John Paul Stevens and David H. Souter.
While joining the majority to allow drug testing in Vernonia, Justice Ginsburg wrote separately and described it as limited to athletes whose most severe sanction would be elimination from sports.
"I comprehend the court's opinion as reserving the question whether the district constitutionally could impose routine drug testing not only on those seeking to engage with others in team sports, but on all students required to attend school," she said.
"I'm not sure this is a case that's going to split super-cleanly along the conservative-liberal line," said Mr. Boyd, founding director of the American Civil Liberties Union's drug-policy project in New Haven.
He and others say locker-room shower conditions and physical exams unique to athletes made the case differ from clubs the Oklahoma students were joining.
He predicted that this time Justices Ginsburg and Kennedy, and perhaps others, would join the three dissenters to declare that the county's program went too far. Mr. Boyd represents Miss Earls and Daniel James, both now college freshmen, and 11th-grader Lacey Earls, who joined the case to keep the issue from being thrown out as moot when her sister graduated.
"It seems to me it's going to be much more difficult to show that someone participating in the chorus or the band is going to have minimal expectations of privacy," said Timothy R. Volpert, of Portland, Ore., who represented Vernonia schools and successfully defended its test program but predicted the Oklahoma case would go the other way.
"Those kids are different from athletes whom the Vernonia court said had minimal expectations of privacy," Mr. Volpert said.
Linda Meoli, of the Center for Education Law in Oklahoma City, did not respond to calls yesterday seeking the school board's viewpoint, but her legal brief said: "Public schools in the nation are responsible for the safety of the students under their supervision on a daily basis and must address drug use which threatens their safety."
The Clinton administration Justice Department joined the Vernonia case, but to date the Bush administration has filed no papers in the Oklahoma appeal.


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