Last month, the U.S. Supreme Court ruled in a 5-4 decision to allow random drug testing of public high school students involved in extracurricular activities. This ruling eliminates the legal roadblocks that have hindered public schools and state legislators from creating policies mandating drug testing. While testing for student athletes was deemed constitutional in a 1995 Supreme Court decision, this is the first time that drug tests can be broadly applied to any student who participates in a competitive after-school activity, including the pep band, debate team or chess club.
The ruling is the culmination of a suit brought by the American Civil Liberties Union (ACLU) on behalf of three Tecumseh, Okla. high school students: Lindsay and Lacey Earls, and Daniel James. When a Tecumseh school policy forced Lindsay to be tested for drugs because she was member of an academic quiz team and the choir, she sued over what she considered a humiliating and accusatory policy.
The High Court ruling could change the role of approximately 14,700 public school systems nationwide. Justice Clarence Thomas, who authored the Supreme Court’s opinion, wrote that schools must begin to take on a more parental-like role.
“A student’s privacy interest is limited in a public school environment where the state is responsible for maintaining discipline, health and safety,” wrote Thomas. “School children are routinely required to submit to physical examinations and vaccinations against disease. Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults.”
The decision opens the door for further limitations on privacy rights at a time when Americans depend on a justice system that will stand up for civil liberties against the Bush administration and the USA Patriot Act, says University of Montana Law Professor Mark Kende.
“I’m disappointed in a decision where the court believes requiring kids to urinate isn’t an invasion of privacy,” he says.
Thomas’ opinion also said that random drug testing is capable of “preventing, deterring and detecting drug use.” Many believe this is flawed logic and that the decision will do nothing to protect students from drugs.
“I’m really opposed to the drug testing and I think it’s unconstitutional,” says Lily Frandsen, who will be a junior at Hellgate High School in the fall. “I think it’s only going to decrease the involvement in extracurricular sports and clubs.”
Students who use drugs can feel alienated enough, and if they are prohibited from participating in activities that connect them with their peers, they may become even more disconnected, Frandsen argues.
Frandsen’s opinions are shared by many experts who study drug use, according to Montana ACLU Executive Director Scott Crichton. “Every study demonstrates that the single best way to keep kids away from drugs is to involve them in extracurricular activities,” Crichton says. “Who is to benefit from ever-expanding drug testing? It’s an enormous financial enterprise and I think that money is better spent on counseling.”
Since drug testing is costly the decision is expected to have little impact on Montana’s already underfunded schools. Public schools couldn’t just single out a suspicious student or two to test. Legally, the testing must be done at random. This would mean testing large segments of the school population at as much as $60 apiece, and this would be too costly, says Brian Fortmann, assistant principal and athletic director at Big Sky High School.
“There is something like 182 schools in this state,” says Fortmann. “Only a handful of them do drug testing.”
One of those schools that does test its athletes is Plenty Coups High School on the Crow Indian Reservation. Because of the summer recess, there hasn’t been any discussion about expanding the testing program, but one school spokesman says it’s a possibility.
“I’m not opposed to it,” says Tom Feeney, school superintendent of Plenty Coups’ district. “If the athletes are tested there should be no reason not to test the cheerleaders or the band.”
But Feeney knows that the decision is not his to make, but belongs to voters.
“The community has to want this,” Feeney says. “It’s not something the administrators or the athletic directors do. It comes from the [elected school] board.”
Last year, Rep. Joan Andersen (R–Fromberg) looked into what support drug testing would have in her community. After talking with students, teachers and school counselors, she sponsored a bill that would have implemented random drug testing of public high school students involved in extracurricular activities. Under the bill, students would be required to take a test before beginning any extracurricular activity. After the initial test, 10 percent of the students would be tested randomly every week until the activity’s season ends.
Andersen’s bill provided the opportunity for a re-test if one was requested. If the re-test’s results confirmed drug use, a compulsory, statewide consequence would be enforced–most likely losing a spot on the team or club. The bill, like the Supreme Court’s decision, would not refer test results to law enforcement and would remain confidential.
“These students wouldn’t be prosecuted,” Andersen says. “Their names wouldn’t be printed in the newspaper.”
Still, parents would likely become suspicious if one day their child just stopped going to debate team meets or cheerleading practice. In fact, the confidentiality requirement would be difficult if not impossible to pull off, and students would likely forfeit more of their privacy once their drug use became common knowledge.
But most Montana students don’t have to worry about this yet. Andersen’s bill died in committee due to funding problems when estimates for implementing the statewide mandatory testing ran between $1.2 million and $5.2 million. With a statewide budget crunch and ongoing cuts in education funding, there was no way to pay for the tests.
But Andersen says she has found ways to lower the costs significantly using less frequent and less expensive drug tests and is considering introducing a similar bill next session.