- The Washington Times - Wednesday, March 20, 2002

A top government lawyer yesterday backed an Oklahoma school district's drug testing of high school pompom squads, chess teams and choirs by telling the Supreme Court it would be constitutional to test all students for drug use.
That assertion carefully planned in case the question was asked went far beyond the case before the justices and represented a vastly broadened official view of "reasonableness" in searching high school students.
Deputy Solicitor General Paul D. Clement suggested the entire student body could be tested if a problem is suspected not just athletes as current rulings permit, or pupils in voluntary extracurricular programs as Oklahoma's Pottawatomie County Board of Education requires.
"We're not saying this is constitutional because it's consensual," he said.
Recalling that urine testing was approved in 1989 for U.S. Customs agents because they face extraordinary temptation on the drug war "front lines" from the supply side, Mr. Clement said, "Children today are on the front lines of the drug problem on the demand side."
The American Civil Liberties Union said Tecumseh High School's random drug testing of students involved in extracurricular activities violates the Constitution's guarantee against unreasonable searches or seizures. It is backing two students who sued the school system.
The court appeared sharply divided over the relative importance of the drug threat versus sacrificed civil liberties.
School board lawyer Linda M. Meoli said Tecumseh's program falls within boundaries the court set in its landmark 1995 Vernonia decision, allowing sports teams to be tested because of injury risks and discipline problems with team members.
"I don't see how you don't lose," Justice David H. Souter told Miss Meoli when he cited official reports before 1998 that found no such problems.
"Were they lying?" he asked, saying only three of 505 students tested positive since then, all athletes.
"The existence of the policy might be expected to deter drug use," observed Chief Justice William H. Rehnquist.
"We'll never know, will we?" Justice Souter responded.
Justice Ruth Bader Ginsburg was troubled by the logic of testing eager and law-abiding students whose extracurricular activities include band and Future Farmers of America "a group that is less of a problem than the rest of the students who are idle."
Graham A. Boyd, an American Civil Liberties Union lawyer from New Haven, Conn., said the line must be drawn at "individualized reasonable suspicion."
"There's nothing about the band or the choir that is dangerous," Mr. Boyd said, recalling that the prospect of death figured in previous drug-screening decisions, drawing a quick retort from Justice Antonin Scalia.
"You think life and death is not at issue in the fight against drugs? … How about death from an overdose?" Justice Scalia asked.
A congressman seated alone in the front row had no misgivings about suggestions that all students be tested.
"It's the only thing that works. It's the only thing that worked in the military," said John E. Peterson, Pennsylvania Republican and member of the Speaker's Task Force for a Drug-Free America. The task force supports a bill to let the government pay for drug tests.
Miss Meoli, of Oklahoma City, said one factor blocking wider testing is the constitutional view that students must attend school so searching as a condition of admission would be involuntary.
"If we could fashion a way to do it, I believe a majority of the school boards would be behind it," she conceded.
In its written brief whose signers include Mr. Clement and Solicitor General Theodore Olson the Bush administration asked the court to "leave schools flexibility to adopt reasonable measures, like the policy in this case, to prevent illicit drugs from gaining a stronger hold on their communities, and protect school children from the life-altering perils of drug use."
But it was learned that officials believe schoolwide testing would be defensible before the Supreme Court.
Justice Anthony M. Kennedy argued for giving school boards more latitude in deciding when drug testing is needed and not shutting down testing because few positive results are found.


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