By LINDA GREENHOUSE
WASHINGTON, Nov. 8 - The Supreme Court agreed today to
decide whether public schools may require students to pass
drug tests as a condition of participating in
extracurricular activities.
The decision, due before the current term ends early next
summer, should clarify the court's 1995 ruling that upheld
drug testing for student athletes but that left school
districts uncertain about whether they could apply drug
testing programs to other groups, or perhaps even to all
students, as a way to deter drug use.
The continuing legal uncertainty has limited the adoption
of drug testing programs, which remain the exception rather
than the rule in the country's 15,500 public school
systems. Lower courts around the country have reached
different conclusions on whether various drug testing
programs, none of which require suspicion of individual
wrongdoing, amount to unreasonable searches in violation of
the Fourth Amendment.
The case the justices accepted today is an appeal by the
school board of a rural district in Tecumseh, Okla., 40
miles southeast of Oklahoma City, which adopted a drug
testing program in 1998 for middle school and high school
students engaged in athletics and in other activities
involving interscholastic competition. These included most
extracurricular activities, among them the chorus, the
band, the Future Farmers and Future Homemakers of America,
the cheerleading squad and the academic team.
Under the policy, students were to be tested, by
urinalysis, at the beginning of the school year and then
randomly throughout the year, with names drawn every month.
Those who refused to be tested were to be barred from
participating in their activities at the regional, state or
national level. Those who failed the test could continue in
their activity if they agreed to participate in drug
counseling and stopped using drugs.
Two families with children in the high school sued to have
the program declared unconstitutional because it went
beyond the testing of athletes that the Supreme Court had
upheld. The two original student plaintiffs have graduated,
but Lacey Earls, the younger sister of one plaintiff, now a
high school sophomore, was permitted to enter the case to
prevent it from becoming moot.
The plaintiffs lost in Federal District Court in Oklahoma
City but won a 2-1 decision last March from the United
States Court of Appeals for the 10th Circuit that the
Tecumseh program was unconstitutional.
The drug testing policy was instituted for the 1998-99
school year and was voluntarily suspended when the suit was
filed. Of 505 high school students tested, only three, all
athletes, showed evidence of drug use.
The appeals court majority said that Tecumseh had not
demonstrated that there was "an actual drug abuse problem
among those subject to the policy" and that therefore the
balancing test the Supreme Court adopted when it upheld the
testing of student athletes in Vernonia, Ore., tipped
against the school district in Tecumseh. School officials
in Vernonia had shown that the student athletes there were
at the center of a drug culture and were negative role
models for other students.
In explaining why the Supreme Court's decision in the
Vernonia case did not require upholding the Tecumseh
program, the 10th Circuit emphasized that it was not
requiring evidence of a drug abuse epidemic. But a school
district had to show that it had a problem for which the
particular drug testing program was the solution, the
appeals court said.
"Any district seeking to impose a random suspicionless drug
testing policy as a condition to participation in a school
activity must demonstrate that there is some identifiable
drug abuse problem among a sufficient number of those
subject to the testing, such that testing that group of
students will actually redress its drug problem," the
appeals court, which sits in Denver, held in an opinion by
Judge Stephen H. Anderson, joined by Judge Wade Brorby.
Judge David M. Ebel dissented.
Graham Boyd, director of the American Civil Liberties
Union's drug policy litigation project, which represented
the plaintiffs, said in an interview today that programs
such as Tecumseh's were counterproductive because studies
have shown that students involved in extracurricular
activities are less likely to use drugs.
"You're setting up barriers to participation in the very
programs that can save kids from drugs," he said.
In its appeal, Board of Education v. Earls, No. 01-332, the
school district argues that the 10th Circuit's approach
"will eliminate a vital tool" for deterring drug use and
force school officials "to point an accusatory finger at
individual students." That would `'transform the process
into a badge of shame," the school board's brief said.
In the appeals court, the school district was supported by
the National School Boards Association. In an interview
today, Edwin Darden, deputy general counsel, said the
national organization saw drug testing programs like
Tecumseh's as an option that local boards should be free to
adopt as one means of creating a safe learning environment.
The Supreme Court's eventual view of the case is not
necessarily predictable. The vote to uphold the testing of
athletes was 6 to 3, with a spirited dissenting opinion by
Justice Sandra Day O'Connor. In 1997, the court ruled 8 to
1 that a Georgia law requiring political candidates to
submit to drug tests to appear on the ballot was
unconstitutional.
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