Supreme Court to hear arguments on drug tests for school activities

Monday, March 18th 2002, 12:00 am

By: News On 6

(OKLAHOMA CITY) - A case before the U.S. Supreme Court Tuesday could help decide whether school districts can require drug tests for students who want to participate in after-school activities from cheerleading to chess squad.

The case arises from an Oklahoma high school student who objected to taking a drug test in order to sing in the school choir.

The high court has agreed to decide whether the Fourth Amendment right against unreasonable searches allows drug tests without evidence that the student has a drug problem.

``It's basically a misdirected policy,'' said Graham Boyd, an attorney for the American Civil Liberties Union who represents three Tecumseh School District students who challenged the district's random drug-testing policy.

``The most effective way to keep students from using drugs is to engage them in after-school activities,'' Boyd said. ``The last thing you want to do is to put up barriers to these activities.''

Supporters say random testing deters illegal drug use by school students before it becomes a problem.

``We don't think you should have to have a disaster on your hands before you do something to stop it,'' said David G. Evans of the Drug-Free Schools Coalition.

``This is really all about protecting kids. It gives kids a chance to say no.''

Student Lindsay Earls was a member of the Tecumseh High School's show choir, concert choir and academic team in 1998 when the school district began requiring students in the seventh through twelfth grades who engage in extracurricular activities to consent to urinalysis testing.

Only children involved in competitive extracurricular activities were tested on the theory that by voluntarily representing the school, they had opened themselves to greater scrutiny than other students.

``It was sort of sprung on us,'' said Earls, now a freshman at Dartmouth College. ``I felt strongly about it. That is none of their business.''

Earls said she provided urine samples for testing two or three times. All of the tests came back negative.

Overall, 505 high school students were tested for drug use. Three students, all of them athletes, tested positive, Boyd said. Two of the athletes also participated in other extracurricular activities.The school offered drug counseling after a positive test, and those who complied could remain on their teams. Those who refused were barred from competition.

In 1995, the Supreme Court ruled that a school district in Vernonia, Ore., could require drug testing for students involved in athletic competition.

``When courts have upheld blanket drug-testing, it has been based on some dangerous activity'' like sports, Boyd said. ``There's nothing about singing in the choir that poses any danger.''

Earls, her sister, Lacey Earls, and a third student, Daniel James, sued the school district in federal court alleging that the policy violated their Fourth Amendment rights.

A district judge in Oklahoma City upheld the policy, ruling that the intrusion into the students' privacy interests was minimal considering the devastating effect of illegal drug use on children.

But the decision was overturned by the 10th U.S. Circuit Court of Appeals in Denver, which said it is generally unconstitutional for public schools to require students in non-athletic extracurricular activities to be tested for illegal drugs.

The constitutionality of Tecumseh's policy could hinge on just how serious the district's drug problem is.

Legal papers filed by Tecumseh's attorney, Linda Meoli of The Center for Education Law in Oklahoma City, said a student drug problem has existed in the district since at least the 1970s.

During the late 1990s, counselors at Tecumseh's middle and high schools talked to students in the band and vocal groups about their drug use or drug use by friends or family members.

``How much of a drug problem does a school have to have?'' said Evans. ``They feel that drug testing is an effective way to reduce drug use among students.''

But Marsha Levick, legal director of the Juvenile Law Center in Philadelphia, said evidence of drug use in Tecumseh is not sufficient to justify its random drug-testing policy.

``It's very minor and very trivial and very episodic,'' Levick said. If schools do not have serious drug problems, ``it's not necessary to subject students to this kind of drug testing,'' she said.

``School districts should be able to use drug testing as a deterrent,'' said Julie Underwood, general counsel for National School Boards Association.

``Districts should not have to wait for drugs to be rampant in their student body to try to do something,'' Underwood said.

The case is Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 01-332.

Supreme Court website: www.supremecourtus.gov