The Supreme Court

Testing for Drugs

Drug-free schools are a slogan you see in many communities. Working to keep them that way is a constant challenge for school administrations. Some schools conduct periodic drug testing for students. One such program at Tecumseh, Oklahoma School District requires all middle and high school students who want to participate in extracurricular activities to submit to urinalysis testing for drugs.

Two Tecumseh High School students and their parents sued the school saying this policy violated the students Fourth Amendment rights. The district court disagreed and ruled in favor of the school administrators. The students and parents then appealed the case to the circuit court, which ruled in their favor and agreed the policy did violate the Fourth Amendment.

The board of education appealed the circuit court decision to the Supreme Court in the case Board of Education v. Earls. The case was decided and on a split 5 to 4 decision. Justice Thomas wrote the opinion of the Court and was joined by Chief Justice Rehnquist, and Justices Scalia, Kennedy and Breyer. Justice O'Connor filed a dissent and was joined by Souter. Justice Ginsburg also wrote a dissent and was joined by Stevens, O'Connor and Souter.

In the majority opinion announced June 27, 2002, Thomas wrote:

• “Tecumseh's Policy is a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren and does not violate the Fourth Amendment …. In contrast to the criminal context, a probable cause finding is unnecessary in the public school context because it would unduly interfere with maintenance of the swift and informal disciplinary procedures that are needed. In the public school context, a search may be reasonable when supported by 'special needs' beyond the normal need for law enforcement. Because the 'reasonableness inquiry cannot disregard the schools' custodial and tutelary responsibility for children, a finding of individualized suspicion may not be necessary.”

In deciding this case the majority used a precedent set in 1995—Vernonia School Dist. 47J v. Acton—in which a school district was granted the right to test all athletes for drugs because drug use could increase the risk of sports injury. In writing her dissent, Justice O'Connor did not believe the Tecumseh School District's drug testing program met the test:

• “Today, the Court relies upon Vernonia to permit a school district with a drug problem its superintendent repeatedly described as 'not … major,' to test the urine of an academic team member solely by reason of her participation in a nonathletic, competitive extracurricular activity—participation associated with neither special dangers from, nor particular predilections for, drug use.
• “[T]he legality of a search of a student, this Court has instructed, 'should depend simply on the reasonableness, under all the circumstances, of the search.' … The particular testing program upheld today is not reasonable, it is capricious, even perverse: Petitioners' policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects ….
• “In this case … Lindsay Earls and her parents allege that the School District handled personal information collected under the policy carelessly, with little regard for its confidentiality. Information about students' prescription drug use, they assert, was routinely viewed by Lindsay's choir teacher, who left files containing the information unlocked and unsealed, where others, including students, could see them; and test results were given out to all activity sponsors whether or not they had a clear 'need to know.' … The policy requires that '[t]he medication list shall be submitted to the lab in a sealed and confidential envelope and shall not be viewed by district employees'.
• “In granting summary judgment to the School District, the District Court observed that the District's 'Policy expressly provides for confidentiality of test results, and the Court must assume that the confidentiality provisions will be honored.'”

Given how closely divided the court was on this issue, it is likely another case will wind its way to the Court in the future.

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.