School drug testing faces test in court

But others say the stakes are too high when the health and safety of children are at risk. "We have an epidemic in this country with drug abuse, and it is a growing epidemic with young people," says Calvina Fay, executive director of Save Our Society From Drugs in St. Petersburg, Fla.

"If we have a tool [random tests] to intervene and fix the problem, why would we not use that tool," she asks. "What are we going to do as a civilized society – sit back and wait until our children are so addicted that we can't help them?"

Ms. Fay says random testing has proved successful in the workplace and helped dramatically reduce drug use in the US military to about 4 percent. The same techniques would work in schools, she says.

In earlier cases, the Supreme Court has upheld suspicionless drug tests for railroad employees involved in accidents and US Customs Service agents working in drug law enforcement.

But the high court has also struck down a Georgia state law that required candidates for certain public offices to submit to drug tests.

By far, the closest case to the Tecumseh policy is a 1995 decision in which the Supreme Court upheld a policy adopted by a school board in Vernonia, Ore., requiring random drug tests of all student athletes.

The majority opinion, written by Justice Antonin Scalia, found that the policy was not an "unreasonable search" under the Fourth Amendment, because a serious drug problem existed at the school and athletes had been identified as being leaders in the student drug culture.

The justices reasoned that student athletes had a lower expectation of privacy than other students because they underwent preseason physical examinations and showered and changed clothes together in the same locker room.

In addition, the justices expressed concern that illegal drug use by athletes might contribute to certain sports-related injuries.

The key to that case, according to Justice Scalia, was whether the drug-testing policy was one that a "reasonable guardian and tutor" of children in a school setting might undertake.

The justices made a special effort to warn lawyers and school board members against reading the opinion too broadly. "We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts," Scalia wrote.

The Tecumseh policy was adopted in September 1998. It requires as a condition of participating in extracurricular activities that students agree to random drug tests throughout the year.

Extracurricular activities offered at Tecumseh schools include: sports, academic team, band, chorus, Future Homemakers of America, Future Farmers of America, and cheerleading.

Earls and another student challenged the policy in court with the help of the American Civil Liberties Union. A federal judge upheld the policy, but a divided panel of the 10th US Circuit Court of Appeals in Denver struck it down by a 2-to-1 vote.

The appeals court said that the possible deterrent effect of tests wasn't enough to justify their use as a precondition to participation in extracurricular activities.

A decision in the case is expected by late June.

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