Court expands school drug tests

Children attending public schools can be required to submit to random drug tests, even when school officials have no reason to suspect widespread use of illicit narcotics.

In a major exception to Fourth Amendment prohibitions against suspicionless searches, the US Supreme Court has given a green light to public schools across the nation to use random drug-testing procedures on a wide variety of children. The high court said in a 5-to-4 decision announced Thursday that the deterrent effect of such drug testing was enough to overcome Fourth Amendment privacy protections.

The ruling opens the way for schools to dramatically expand drug testing if they so choose for students involved in extracurricular activities like band and choir. But some experts believe that the cost of carrying out the tests, coupled with lingering privacy concerns, will limit the number of schools that will actually do so.

In writing for the majority, Justice Clarence Thomas says, "The need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy." He adds, "Testing students who participate in extracurricular activities is a reasonably effective means of addressing the school district's legitimate concerns in preventing, deterring, and detecting drug use."

The decision marks a major victory for antidrug groups and others who believe random testing can provide an effective deterrent to the use of illicit narcotics by teens. "It is a victory for common sense, and our schools will be safer as a result," says David Evans of the Drug-Free Schools Coalition.

Privacy advocates see it as an erosion of Fourth Amendment protections against government intrusion in the daily lives of children. "What the court has done here is a very serious departure from its prior precedent," says Graham Boyd of the drug-policy litigation project of the American Civil Liberties Union. "It had allowed testing when there was a demonstrated need. Now they've thrown it open to schools even when there's no need," he says. "They can do it on a whim."

The decision upholds a drug-testing program adopted by the school board in Tecumseh, Okla. The 1998 policy required all students participating in extracurricular activities such as band, academic team, and the Future Farmers of Americato submit to random urinalysis tests. The policy was challenged by two high school students, Lindsay Earls and Daniel James, who argued that students have a right to participate in extracurricular activities without having to surrender privacy to suspicionless drug tests.

The Fourth Amendment prohibits the government from searching an individual unless government officials have reason to suspect criminal activity. But the court has long recognized that Fourth Amendment privacy protections are somewhat relaxed in a school setting, where school officials have a responsibility to protect the health and safety of schoolchildren.

Although the majority upheld the constitutionality of the school policy, the justices stopped short of endorsing it.

In a dissent, Justice Ruth Bader Ginsburg said the school's policy violated Fourth Amendment protections. "It is capricious, even perverse," she writes. The "policy targets for testing a student population least likely to be at risk from illicit drugs."

In earlier rulings involving random drug tests, the court had established that Fourth Amendment prohibitions could be overcome when a "special need" existed that justified extraordinary measures. The court has ruled that a special need justifies the random drug testing of train drivers involved in an accident, US Customs inspectors working in areas of high drug smuggling, and student athletes who formed the leadership of the drug culture in a particular high school.

The court's decision is significant because it broadens this "special need" rationale to include any student, not just those at higher risk of involvement with illegal drugs.

The Tecumseh school board adopted its policy in an effort to create a strong incentive for students to avoid any involvement with drugs. School officials justified the policy by saying that any student wishing to avoid the test could choose not to participate in after-school activities.

Some education and drug-abuse experts say that students who participate in extracurricular activities are much less likely than other students to use illegal narcotics. Others maintain that such random testing is useful because if offers drug-free children a means to reject invitations by their peers to try drugs.

Over the past three years, about 5 percent of schools nationwide have required drug tests for athletes, while about 2 percent have tested students in other extracurricular activities.

In the student's lawsuit, a federal judge upheld the drug-testing policy. But the 10th US Circuit Court of Appeals in Denver disagreed. The appeals court ruled that school officials could not subject students engaged in extracurricular activities to drug tests without first showing that those students were somehow more at risk for illicit drug use than other students.

• Mark Clayton in Boston and Liz Marlantes in Washington contributed to this report.