Drug Testing Expands – Again
over student and staff safety in public schools are manifesting
themselves in zero-tolerance policies and stringent disciplinary
practices. One of the most controversial strategies is to subject
students to urinalysis screening for drug use.
In June, 2002, the United States Supreme Court delivered an important
decision, Board of Education v. Earls, in which it upheld
a school districtís program that requires all middle and high
school students to consent to urinalysis testing for drugs as
a prerequisite to participation in extracurricular activities.
Although in practice only students participating in competitive
activities have been tested, the reach of the policy is far broader.
Reversing the Tenth Circuit Court of Appeals, the Supreme Court
in Earls relied heavily on its 1995 decision, Vernonia
School District 47J v. Acton, in which it upheld random drug
testing of student athletes in public schools. In both cases the
Court found no violation of the Fourth Amendmentís protection
against unreasonable government searches. The Court in Earls
concluded that students participating in extracurricular activities
have a limited expectation of privacy as they voluntarily subject
themselves to many of the same privacy invasions as do student
athletes. The Court also noted that the intrusion on privacy is
not significant, given that a faculty monitor waits outside the
closed restroom stall while the student produces the urine sample.
The Supreme Court was convinced of the need for the program, given
the evidence presented of a nationwide drug epidemic and increased
drug use in the school district itself. The Court further noted
that a demonstrated drug abuse problem is not always necessary
to justify implementation of a suspicion-less drug-testing program.
Even before the Earls decision, public school students
could be subjected to urinalysis with reasonable suspicion of
drug use. But courts have not spoken in unison as to what it takes
to establish such reasonable suspicion. In 1999, the Seventh Circuit
Court of Appeals in Willis v. Anderson did not find reasonable
suspicion to test all students as a condition of returning to
school if they had been suspended for various offenses, including
fighting and truancy, as there was not a sufficient connection
between those behaviors and drug use. The court further observed
that unlike students who elect to participate in extracurricular
activities, the students who have been suspended have not voluntarily
consented to be drug tested.
The need to establish reasonable suspicion on an individual basis
may decline if the Supreme Court continues to expand the category
of students who can be subjected to blanket or random urinalysis.
The majority of secondary students participate in at least one
extracurricular activity, so they can now be tested for drug use.
Although school districts have not implemented suspicion-less
drug-testing programs for their entire student bodies, given the
Supreme Courtís rulings in Acton and Earls, there
may be movement in this direction.#
McCarthy, Ph.D. is the Chancellor Professor, School of Education,
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