In its final flurry of decisions for its 2001 2002 term, the U.S. Supreme Court issued a 5-4 ruling that could have adverse consequences for children in America's public schools.
Not the experimental voucher program in Cleveland, but the court's conclusion that schools may order students involved in extracurricular activities to submit to drug tests whether or not there is a drug problem at the school.
Lindsay Earls, now a student at Dartmouth College and a self-described “goodie two-shoes,” objected to a requirement that she undergo a drug test as a condition of belonging to the National Honor Society and the school choir at her Oklahoma high school. Although she tested negative, she challenged the blanket testing policy as a violation of her rights under the Fourth Amendment to be free from “unreasonable searches and seizures.”
In brushing that claim aside, Justice Clarence Thomas in his majority opinion made two principal arguments: schools have a right to promote the health of their students, and high school students have a minimal expectation of privacy, since they are subject to physical examinations and vaccinations.
The latter argument does away with a distinction emphasized by Justice Antonin Scalia in a similar case seven years ago upholding drug tests for school athletes. In that case, Justice Scalia pointed out that athletes are in and out of locker rooms, and in and out of their clothes, on a regular basis. “School sports,” he added, “are not for the bashful.”
Neither, apparently, are choir and the debate team. But both justices misconstrue the privacy issue at stake here. It's not about locker-room nudity or taking off one's clothes for a doctor's exam. Testing for illegal drugs without reasonable cause is a psychological violation as much as a physical one. Schools shouldn't engage in such testing casually, or because an administrator wants to score public-relations points for having a “zero tolerance” policy.
Justice Thomas also emphasized that the Fourth Amendment did not apply because school officials in Oklahoma did not turn over the results of drug tests to the police.
But that suggests that as long as the cops aren't called in, public-school officials can be as intrusive and arbitrary as they please, to the point of conducting random strip searches for drugs or weapons simply to make a point. Fortunately, this decision cannot and does not absolve school officials of using their own discretion. We can imagine situations in which a pervasive drug problem might justify random searches of students, and not just football strays, debaters, or members of the choir.
But before making use of the power the the court has given them, administrators should ask themselves: Is this really necessary?