WASHINGTON - Several Supreme Court justices strongly hinted Tuesday that they are likely to uphold random drug testing for high school students involved in after-school activities, a major step toward allowing drug testing for all students.
During a sharp back-and-forth argument, several conservative justices said they, like most parents, want to keep "the druggies" out of their local schools.
Apparently agreeing, Justice Stephen Breyer compared drug testing to metal detectors at school doors, a new but necessary means of keeping schools safe.
"If there's a (drug) problem of a serious sort, why can't they do this?" Breyer asked a lawyer for the American Civil Liberties Union.
Because of the Fourth Amendment and its ban on "unreasonable searches and seizures" by the government, replied the lawyer, Graham Boyd of New Haven, Conn.
He was representing a former sophomore choir singer at a rural Oklahoma high school who had objected to the mandatory urine tests that came with participation in extracurricular activities.
The "core constitutional principle" is that officials must have "individualized suspicion" before they search someone, Boyd said as he opened his argument. The government cannot search everyone in hopes of catching someone, he said.
Within seconds, Breyer cut him off. What about metal detectors? What about throat swabs, the justice asked in a scornful tone.
In 1995, the court had upheld an Oregon school board's policy of testing all of its athletes for drugs. The requirement of "individualized suspicion" is a figment of the past, Breyer suggested, especially when the police are not involved.
It is just not reasonable to test all the students in extracurricular activities, Boyd argued, because there is no evidence of a serious drug problem in rural Tecumseh, Okla.
"Why should I trust your assessment over the local citizens who elect the school board?" Justice Antonin Scalia asked. If parents do not like the policy, they can ask the school board to change it, he said.
Boyd pointed out that some parents in the community had opposed the drug-testing policy and supported the lawsuit.
"Are you saying that if a minority of the parents object, it's unconstitutional?" Chief Justice William Rehnquist asked.
Justice Anthony Kennedy, who earlier voiced his contempt for the "drug culture," asked Boyd to suppose parents had a choice of schools in the community. They could choose to send their child to a "druggie school." Or they could choose one that was drug-free, a policy enforced by a mandatory drug testing.
"No parent would send their child to the druggie school, other than perhaps your client," Kennedy said.
Taken aback, Boyd objected. His client, Lindsay Earls, is now a student at Dartmouth College, and she was never a drug user, he said.
Earls attended the hearing, but afterward said nothing about Kennedy's remarks.
Scalia wrote the 1995 opinion that upheld drug testing of student athletes for a 6-3 majority. Since then, it has been unclear whether schools could test all students or athletes only. Lower courts have split on the question.
The Tecumseh School Board chose a midpoint, requiring routine and random tests for all students who participate in after-school activities, including band, cheerleaders and the Future Farmers of America.
Only three students tested positive in the first year. But the ACLU sued on behalf of Earls, and the U.S. Court of Appeals in Denver struck down the policy on a 2-1 vote.
The Supreme Court agreed to take up the case.
The liberal justices, David Souter and Ruth Bader Ginsburg, said they fear there is no stopping point if the drug testing policy wins.
Justice Sandra Day O'Connor, usually the swing vote in close cases, said she found the drug testing policy peculiar. Students in extracurricular activities were the least likely to be drug users, she said. Why test them? "It's counterintuitive, isn't it," she said.
A ruling in the case is expected by summer.
Compiled from reports by the Los Angeles Times, The Associated Press and the Boston Globe.
I would raise holy hell with those ignorant fucks...Assumed innocent until proven guilty