Court Allows Schools To Drug Test Athletes

The United States Supreme Court may just have opened the door to greatly increased use of drug-testing in public schools across the nation.

The high court ruled yesterday that middle and high-school athletes can be required to submit to such tests as a condition of participation in sports, even if their behavior gives no hint of actual drug use.

The 6-to-3 ruling marks perhaps the most important expansion in law-enforcement searching authority the court has allowed in over a decade. It breaks new ground in an area justices have struggled with for some time: how to balance Americans' right to privacy and dignity against the need for a safe public environment.

The decision "fits a pattern of more flexibility on searches. It also reflects a broadre pattern of deference to persons who have to run more complex institutions," says Richard Fallon, a Harvard Law School Professor.

The facts of the case centered on seventh-grader James Acton's desire to play football at his Oregon lumber town school. When he brought home a drug-test consent form for his parents to sign, they balked. His father, Wayne Acton, thought it would be humiliating for his son to give a urine sample while the coach watched. He also felt the test would educate James to think he was guilty until proved innocent.

In response, the Vernonia (Ore.) School District barred James from the gridiron. Administrators had instituted a random drug-testing program in the late 1980s to combat what they perceived to be drug problems and a lack of discipline.

Athletes were chosen as the test subjects because more than half of the school's 690 students, including its most popular leaders, played sports. If athletes were drug free, the thinking went, the rest of the student body would follow.

Indeed, when arguing the case before the high court, Vernonia's lawyers claimed that drug testing had seemed to lessen rowdy behavior, especially among student clubs such as the "Big Elks," whose members would roam school halls shouting and butting heads.

Problem was, Vernonia's policy went beyond what many legal scholars held to be permissible. They based their beliefs on a 1985 Supreme Court ruling in which justices had upheld the search of a 14-year-old girl's purse for cigarettes on the grounds that smoke in the bathroom provided "reasonable suspicion."

Authorities in Vernonia had no reason to suspect James Acton of using drugs, after all. They were just instituting a general policy.

Vernonia's lawyers argued that the "reasonable suspicion" criterion should be shifted and that random searches should be allowed for all students - thus putting them on the same legal footing as adults responsible for the lives of others, such as airline pilots. The Supreme Court has now sided with this view.

Instead of the "reasonable suspicion" standard the majority opinion in Acton v. Vernonia says the school only needs a "legitimate" reason to search. Justice Antonin Scalia, writing for the majority, said that the loss of privacy accompanying urinalysis testing is, in fact, "negligible."

"The importance of deterring drug use by all this nation's school children cannot be doubted," Mr. Scalia wrote.

Scholars note that the ruling opens up the questions of how the 16,000 school districts across the country will decide what is a "legitimate" interest.

"Does this mean that all schools have carte blanche to test whenever they want to," asks John Guendelsberger, an expert in Fourth-Amendment search-and-seizure law at Ohio Northern University Law School in Ada, Ohio. "Or do they have any responsibility to prove, by some incident or cases, that they have a reason to test? What is the formula?"

Civil libertarians are concerned that the courts not begin to make social policy - in this case, a "just-say-no" campaign against drugs - by legal decrees.

In dissent, Justice Sandra Day O'Connor wrote that "the greatest threats to our constitutional freedoms come in times of crisis." She added that suspicion of drug use should continue to be the standard by which the need for drug tests is measured.

Her dissent was joined by Justices John Paul Stevens and David Souter.

Some scholars were surprised at the decision, saying that they believed that the specific facts in the Vernonia case were not entirely compelling. For example, while the school stated it had an "epidemic" of drugs, the district concedes that there has not been a single drug-related sports incident in the Vernonia schools. Only one Vernonia teacher has ever seen a student taking drugs.

"It seemed to me the school board had a real problem substantiating the facts," Mr. Guendelsberger says.

In other action, the court:

* Allowed student-led prayers at public school graduation ceremonies. The court did so by setting aside as moot - no longer legally relevant - a lower-court ruling that had banned such prayers in nine Western states.

* Rejected a free-speech challenge to an anti-child-pornography law, allowing it to stand. The law, passed by Congress in 1990, requires pornography producers to keep names and birth dates of all those featured in sexually explicit films, videotapes, and photographs.

* Agreed to rule on whether local telephone companies may tap into cable-television services and sell programming directly to customers. Last year, a federal appeals court found that limiting telephone companies' access to cable was the same as limiting their free-speech rights.