- The Washington Times - Friday, June 28, 2002

The Supreme Court yesterday cleared the way for schools to drug-test all children who join in extracurricular activities, such as the band, chess team, pompom squad or choir.
"The invasion of students' privacy is not significant," said the 5-4 decision, which freed school boards to require random testing among 7 million schoolchildren involved in voluntary programs.
That marked a victory for Pottawatomie County, Okla., and for the policies of the National School Boards Association, which yesterday predicted a vast expansion of the testing first permitted in 1995 for high school athletes on grounds their safety was at special risk.
"We conclude that the drug testing of students who participate in extracurricular activities effectively serves the school district's interest in protecting the safety and health of its students," said the court opinion written by Justice Clarence Thomas who stopped short of conditioning tests on compulsory attendance.
"We express no opinion as to its wisdom," said the ruling joined by Chief Justice William H. Rehnquist, Justices Antonin Scalia, Anthony M. Kennedy and Stephen G. Breyer.
Justice Sandra Day O'Connor usually among the majority on school cases joined dissenters yesterday who also included Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg, who said the ruling allows unreasonable invasions of privacy.
"The particular testing program upheld today is not reasonable, it is capricious, even perverse," said the opinion written by Justice Ginsburg, who said the policy targets "a student population least likely to be at risk from illicit drugs and their damaging effects."
That view was echoed by American Civil Liberties Union lawyer Graham Boyd, who fought the policy on behalf of student Lindsay Earls, who describes herself as a "goody two-shoes" humiliated by having to submit to urine tests to compete on a quiz team and sing in the choir.
Three children tested positive out of 505 given urine tests in the Pottawatomie schools before the lawsuit halted the program.
"Every available study demonstrates that the single best way to prevent drug use among students is to engage them in extracurricular activities," said Mr. Boyd, who forecast the decision will lead to more intrusive demands for DNA and health records.
The court's ruling dismissed out of hand objections that the students tested were least likely to be drug abusers, and said such screening prevents, deters and detects drug use as part of the school district's legitimate interest in student safety and health.
"It would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use," the court said.
Testing persons suspected of drug use is allowed under many circumstances but previous high court decisions limited so-called "suspicionless" testing decisions to such groups as customs agents exposed to severe temptations, train crews working amid special dangers and high school athletes. Five years ago, the justices threw out a Georgia law requiring urine tests for candidates to high office.
The Bush administration argued to the Supreme Court in March that it would be constitutional to test all students for drug use.
"We're not saying this is constitutional because it's consensual," Deputy Solicitor General Paul D. Clement said.
The National School Boards Association called it "crucial" that local school boards have the legal power to quash student drug abuse.
"While each community will make its own decisions on strategies to create safe and secure learning environments, school boards will now be able to create the policies they and the community believe will best address the problem of student drug abuse," NSBA President Mossi White said.
The National Education Association opposes testing when there is no suspicion.
"When we have situations where [tests] are done in a suspicionless situation, we believe that is an invasion of privacy," said NEA President Bob Chase. "If there is suspicion of drug use, that is quite another story, but in this case it was not."
Justice Breyer issued a separate opinion citing the toll of life and money taken by drug abuse as further justification for voting with the more conservative members of the court.


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