Bush administration files brief in Tecumseh drug testing case

Friday, January 18th 2002, 12:00 am
By: News On 6

OKLAHOMA CITY (AP) _ The Bush administration has asked for time to argue in favor of a drug-testing program used by Tecumseh High School that is being challenged before the U.S. Supreme Court.

``The compelling nature of the government interest in deterring drug use in schools is alone sufficient to justify a drug-testing policy like the one at issue here,'' the solicitor general's office argued in a brief filed last month.

The solicitor general, the administration's advocate before the nation's high court, also has asked for time to make its case during oral arguments set for March 19.

The school district wants justices to reverse a decision by the 10th U.S. Circuit Court of Appeals that struck down the drug testing as unconstitutional.

The appeals court ruled the Tecumseh policy didn't meet the standards laid out in a previous Supreme Court decision that upheld the testing of high school athletes in a school with severe drug problems.

The Tecumseh school policy, instituted in 1998, requires the testing of all students who want to participate in athletics, cheerleading, pompom squad, choir, band and academic teams. Random tests and tests of students suspected of drug use also are part of the policy.

In 1999, three Tecumseh students challenged the legality of the tests in federal court in Oklahoma City. U.S. District Judge David Russell upheld the drug testing policy, but his decision was overturned by the 10th Circuit. The Tecumseh district appealed to the Supreme Court.

The high court's ruling, which is expected sometime before the court adjourns this summer, should help school districts across the country determine when they can test students who aren't necessarily suspected of using drugs.

American Civil Liberties Union attorney Graham Boyd, who has represented the students challenging the policy, said Thursday the Bush administration's arguments vary little from the school districts or other supporters of the policy.

While the solicitor general's filing carries some weight, it would be better if the administration was fighting for a federal interest rather than a local one, Boyd said.

``What's most important is that the solicitor general has experienced, talented lawyers,'' Boyd said. ``I'm not sure that makes any difference in this case because I don't think the school policy is defensible, no matter how talented their lawyers are. At the end of the day, the justices are going to look at the merits.''

The Bush administration, like the school district, is arguing the Tecumseh policy is constitutional because its intent is similar enough to the policy upheld for athletes in a 1995 case. Boyd argues that the Tecumseh case is vastly different from the circumstances in that case.

Boyd said in the 1995 case, there was a serious drug problem revolved around star athletes whom other students looked up to, and that the athletic activities could be even more dangerous for students using drugs.

In Tecumseh, he said, there was no evidence presented of widespread drug use. In Boyd's brief, he stated that of 505 students tested, only three tested positive and all three were athletes.

However, the solicitor general argued that ``the Court should leave school administrators with flexibility to adopt common-sense, drug-deterrence measures like the policy at issue in this case.''