- The Washington Times - Monday, July 8, 2002

Line drawing is the art of Fourth Amendment construction. It speaks in chiaroscuro, not in prime colors. "Unreasonable searches and seizuress" are prohibited; but no specific clues are provided to demarcate the reasonable from the unreasonable. It is all a matter of degree. To be weighed are the urgency of the government's search or seizure justification, its purpose, and the stigma, humiliation or intrusion on personal intimacies suffered by the target.
On that score, the Supreme Court's 5-to-4 decision in Board of Education of Independent School District No. 92 of Pottawtomie County vs. Earls (June 27, 2002) sustaining confidential drug testing of students participating in extracurricular activities seems unworrisome.
Student drug abuse is widespread. According to the Department of Health and Human Services, the percentage of high school seniors using any illicit drug climbed from 48.4 percent in 1995 to 53.9 percent in 2001 and 41.7 percent to 49 percent for marijuana alone. Rural communities evocative of Norman Rockwell have not escaped the drug-abuse epidemic.
In 1998, the school district responsible for administering Tecumseh, Okla., public schools fashioned a student activities drug-testing policy. It requires consent from middle- and high-school students to testing for illegal drugs as a condition to participation in any extracurricular activity. The policy did not promise a miraculous ending or vertical fall in drug abuse among adolescents. It did, however, aim to dent the problem by deterring some who craved extracurricular excitements and by cuing students that drug use was more to be deplored than imitated. Any lessening of an evil is laudatory, even if greater success would be coveted.
The drug testing policy in Tecumseh was no dragnet for dispatching students to prison or even school discipline. Access to the test results are denied law enforcement authorities. The tests occasion no school penalties or academic demerit. They are separated from a student's educational records and shared with school personnel only on a case-by-case "need to know" basis.
The stigma or embarrassment risked by a drug-test failure is generally insubstantial, but not chimerical. For example, if an Ursa Major star football quarterback suddenly vanished from the roster like the Cheshire cat, drug use would be the self-evident explanation even to the dullest of the dull. In the ordinary case, however, the sole loss for testing positive is nonparticipation in extracurricular endeavors.
And even imposition of that disadvantage bespeaks mildness and understanding of teen-age rebelliousness.
Under the policy, after an initial positive test, the school arranges a meeting with a student's parent or guardian. Student extracurricular participation may continue if within five days of the meeting drug counseling is undertaken and a second specimen is provided within two weeks. Even after a second positive, the student receives but a 14-day suspension from extracurricular programs, plus four hours of drug-abuse counseling and monthly drug testing.
Only after a third strike do extracurricular privileges cease for the remainder of the school year or 88 school days, whichever is longer.
The drug testing is minimally intrusive or embarrassing. Urine samples are routine in normal private doctor health checkups. No obloquy or suspected depravity is awakened. Under the policy at Tecumseh, a faculty monitor stands outside a closed restroom stall while the student produces a sample. The monitor is necessary to prevent tampered specimens and to establish an accurate chain of custody. The sample is poured into two bottles, sealed, and placed in a mailing pouch. The entire process from beginning to end should be untraumatic for the typical student, occasioning no more anxiety or stress than passing through safety detectors at public buildings or airports.
Drug abuse endangers a student's personal health and may menace fellow classmates. Public school authorities are surrogate parents during the school day, and testing for drugs among extracurricular participants seems a reasonable exercise of their "in loco parentis" obligations. They might be civilly liable for negligence for failing to test if a student drug abuser caused injury to himself or others during athletic competitions or otherwise.
Detractors of the Earls precedent fret that it creates a slippery slope to testing all students for illegal drugs in cahoots with state and local police. A long trail of teen-agers marching to bleak prisons filled with hardened inmates is portended. But to paraphrase Sam Johnson, slippery slope arguments are the last refuge of lawyers on the wrong side. They are as unpersuasive as embracing anarchy because any scheme of government might descend into Stalinist totalitarianism.
But the chief distinction between civilization and barbarism is knowing when to stop. The exact point in each case will be tolerably inexact, like the demarcation between day and night. The small area remaining for dispute should make any solution reasonably acceptable to the mainstream. Justice Oliver Wendell Holmes crafted the answer to those who would denounce Earls as a harbinger of a public school Gestapo in Panhandle Oil Co. vs. Knox (in 1928): "not while this court sits."


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