Drug Tests at Schools Argued at High Court

WASHINGTON —  With drug use on the rise again, the Supreme Court justices strongly hinted Tuesday they are likely to uphold mandatory drug testing for most or all high school students.

During a sharp back-and-forth argument, several conservative justices said they, like most parents, want to keep “the druggies” out of their local schools.

Apparently agreeing, Justice Stephen G. Breyer compared drug testing to metal detectors at school doors--a new but necessary means of keeping schools safe.

“If there’s a [drug] problem of a serious sort, why can’t they do this?” Breyer asked a lawyer for the American Civil Liberties Union.

Because of the 4th Amendment and its ban on “unreasonable searches and seizures” by the government, replied the lawyer, Graham Boyd of New Haven, Conn.

He was representing a sophomore choir singer at a rural Oklahoma high school who had objected to the mandatory urine tests that came with participation in extracurricular activities.

The “core constitutional principle” is that officials must have “individualized suspicion” before they search someone, Boyd said confidently as he opened his argument. The government cannot search everyone in hopes of catching someone, he said.

Within seconds, Breyer cut him off. What about metal detectors? What about throat swabs, the justice asked in a scornful tone.

In 1995, the court had upheld an Oregon school board’s policy of testing all of its athletes for drugs. The requirement of “individualized suspicion” is a figment of the past, Breyer suggested, especially when the police are not involved.

The attorney stopped, but then continued in a soft voice, as if the wind had been knocked out of him and his argument. He spent the rest of his 30 minutes at the lectern backpedaling, as the conservative justices went on the attack.

It is just not reasonable to test all students in extracurricular activities, Boyd argued, since there is no evidence of a serious drug problem in rural Tecumseh, Okla.

“Why should I trust your assessment over the local citizens who elect the school board?” snapped Justice Antonin Scalia. If parents do not like the policy, they can ask the school board to change it, he said.

Boyd pointed out that some parents in the community had opposed the drug-testing policy and supported the lawsuit.

“Are you saying that if a minority of the parents object, it’s unconstitutional?” asked a skeptical Chief Justice William H. Rehnquist.

Justice Anthony M. Kennedy, who earlier voiced his contempt for the “drug culture,” leaned toward his microphone.

Suppose parents had a choice of schools in the community, he offered. They could choose to send their child to a “druggie school.” Or they could choose one that was drug-free, a policy enforced by a mandatory drug testing.

“No parent would send their child to the druggie school--other than perhaps your client,” Kennedy said.

Taken aback, Boyd objected. His client, Lindsey Earls, is now a student at Dartmouth College, and she was never a drug user, he said.

The sharp exchange amplified the court’s more conservative approach to issues of student rights.

During the Vietnam War, the high court upheld a student’s right to wear a black armband, saying high school students “do not shed their constitutional rights at the schoolhouse door,” an oft-quoted line.

These days, most of the justices voice a different view.

Scalia said Tuesday that school officials make the rules at school, and he derided the notion that students have privacy rights.

“You are dealing with minors here. You can keep them in prison in effect, and say, ‘You have to stay after school because you haven’t done your homework,’ ” he said. “There’s a world of difference between minors and adults.”

Scalia wrote the 1995 opinion that upheld drug testing of student athletes for a 6-3 majority. Since then, it has been unclear whether schools could test all students, or athletes only.

Lower courts have split on the question.

The Tecumseh school board chose a midpoint, requiring routine and random tests for all students who participate in after-school activities, including the band, cheerleaders and the Future Farmers of America.

Only three students tested positive for drugs in the first year, requiring a school meeting with the parents and their child.

But the ACLU sued on behalf of Earls and the U.S. Court of Appeals in Denver struck down the policy on a 2-1 vote.

The Supreme Court agreed to take up the case, and Tuesday’s argument had the air of a showdown on the issue of school drug testing.

Surveys show that drug use among students rose in the 1990s, the National School Boards Assn. said in a brief filed with the court. Last year, 41% of high school seniors said they had used illegal drugs, according to one survey.

Linda Meoli, the school board’s lawyer, called the broader testing policy “a natural, logical and rational application” of the ruling that allowed athletes to be tested.

The liberal justices, David H. Souter and Ruth Bader Ginsburg, said they feared there was no stopping point if the drug-testing policy wins.

“Your argument is really that all students can be tested,” Ginsburg interjected.

Not necessarily, Meoli replied. Students can choose not to participate in after-school activities.

But when the Bush administration’s deputy solicitor general, Paul Clement, rose to defend the school board, he agreed all students can be tested.

“We think it would be constitutional” to test everyone, said Clement, a former clerk to Scalia.

The argument had gotten off to a bad start for the school board lawyer.

Justice Sandra Day O’Connor, usually the swing vote in close cases, said she found the drug-testing policy peculiar. Students in extracurricular activities were the least likely to be drug users, she said. Why test them? “It’s counterintuitive, isn’t it?” she said.

But O’Connor was one of the three dissenters in the 1995 case, and her vote is unlikely to sway the outcome this time either.

Breyer joined the conservative side to form the majority in 1995, and he said he saw no reason to strike down the school’s policy in the new case.

A ruling in the case, Board of Education of Pottawatomie County vs. Earls, 01-332, is expected by summer.