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Student Drug Testing: ACLU Sues Northern California High School Over New Expanded Policy

The American Civil Liberties Union (ACLU) Northern California chapter has joined with a small number of students and their parents in filing a lawsuit against the Shasta Union High School District, charging that its newly-expanded drug testing policy for students violates the state constitution. The move came after the district failed to act to address ACLU concerns over the new policy.
drug testing lab
Under previous district drug testing policy, only students involved in athletics were subject to suspicionless random drug testing. But earlier this year, the school board expanded the program to include students who participate in choir, band, drama and other competitive co-curricular and extracurricular school programs at the district's three main high schools. It also required students and their parents to consent to the drug testing regime in order for students to be able to use school computers.

Such requirements violate the students' right to privacy, equal protection, and to be free from unreasonable searches and seizures under the state constitution, the ACLU argued in its filing. The group and the plaintiffs seek an injunction blocking the drug testing program to avoid "irreparable harm" to the students.

But last week, the district was still talking tough. The district's new drug testing policy is "within the confines of the law," Superintendent Jim Cloney, who is named as a defendant in the law suit, told the Redding News. "We've discussed it," Cloney said. "The board chose to follow the policy as it's written."

The district doesn't have to waste its money defending an unconstitutional drug testing policy, said the Northern California ACLU's Michael Risher. "We are still... happy to speak with the district and try and resolve the issue," he said.

In the meantime, the Shasta school board can continue to throw away money as it tilts after windmills.

Asserting Your Rights Doesn't Mean You're Getting Away With Something

Last week I posted Don't Consent to Police Searches or Answer Incriminating Questions in response to this story in which three men were arrested for marijuana after mindlessly consenting to a police search. A commenter responded with this (emphasis in original):

While I respect that you disagree with me, it's my personal opinion that headlines that encourage the skirting of laws are not going to be useful in influencing the citizens and legislators we need to help us change the laws.

I agree that teaching people their rights isn’t necessarily a direct path to drug policy reform, but I want to address the idea that my headline "encourages[s] the skirting of laws," which I think misses the point. In my work with Flex Your Rights, I’ve frequently encountered a false distinction in which asserting constitutional rights is considered honorable when one has nothing to hide, but is somehow perceived as disingenuous when the assertion of those rights prevents the discovery of criminal evidence. At worst, this argument takes the form of claiming that it’s an abuse of the constitution to refuse a search when one possesses marijuana, for example (that’s not what the commenter above is saying, but it’s where that line of thinking often leads).

All of this is premised on the assumption that police are legally entitled to discover contraband and that you’re "getting away" with a crime if police procedures don’t result in your arrest. Technically, however, there is no crime until police obtain probable cause for an arrest, thus any citizen who effectively asserts 4th and 5th Amendment rights is not getting away with anything. They are legally innocent, because evidence of guilt never emerged.

Thus, the whole point of understanding and asserting basic constitutional rights when confronted by police is that you are always innocent until proven guilty under the law. Asserting your rights can never be equated to "skirting the law," because these rights are the law.

As for the larger question of whether encouraging citizens to assert their rights is a bad message for reformers, I would insist that we have nothing to gain by remaining silent on this issue as our prisons are filled with naïve drug offenders who waived their rights on the side of the road. Flex Your Rights was formed to end that silence and we’ve drawn remarkably little public criticism for these efforts, probably because our opposition recognizes that criticizing know-your-rights education comes perilously close to criticizing the constitution itself.

Feature: West Virginia School Board's Random Teacher Drug Testing Plan Headed for Court

After several months of discussion, the Kanawha County (Charleston), West Virginia, school board voted 4-1 in October to go ahead with a plan to randomly drug test teachers and other school district employees. The new policy expands an existing policy that provides for drug testing of teachers upon suspicion of drug use. The move came despite repeated warnings that it would result in a long and costly legal battle with teachers and civil libertarians.
drug testing lab
The policy of randomly testing teachers and other employees without cause is at the spear tip of the expansion of drug testing. While random drug testing of students involved in athletics or extracurricular activities has been approved by the US Supreme Court, the random testing of teachers and other district employees breaks new ground. A similar battle is underway in Hawaii, where Gov. Linda Lingle is attempting to impose drug testing as part of a new teachers' contract, and a Louisiana state legislator is attempting to do the same thing there. But beyond those instances, data is scarce.

"It's hard to get firm data on this," said Lisa Soronen of the National School Board Association. "We don't have much more than anecdotal information, but my sense is that teacher drug testing is an issue that is more often considered than followed through on because cost, constitutional challenges, and political pressure not to do it make in undesirable for many school boards."

The association takes no position on teacher drug testing, said Soronen. "We have not taken specific positions on either student or teacher drug testing," she explained. "Our mantra is one of local control. Our view is not that school districts should do this, but that they should make the decisions themselves. If they want to do it, they should be able to."

Although both West Virginia courts and the US Supreme Court have held that government workers cannot be forced to participate in suspicionless random drug testing programs unless they are working in "safety sensitive" positions, the Kanawha school board is hoping to get around those rulings by defining virtually all school jobs as "safety sensitive."

"I guess there's nothing more safety sensitive than someone who has my child all day long," school board president and mother Becky Jordon told the Charleston Daily Mail late last month.

In local press articles, all four board members who voted for random drug testing cited community pressure, despite little evidence of drug use among district employees. That pressure was in part the result of three highly publicized but statistically insignificant incidents involving drugs and school employees in recent years. In one case, an elementary school teacher was arrested for cocaine possession, but was later acquitted and returned to work. In another case, there are allegations that a librarian had a relationship with two male students that included drug use. In a third case, an elementary school teacher was arrested after police found methamphetamine making materials in his home.

But some board members also suggested they hoped they could set legal precedent in expanding the scope of drug testing. "As a board member elected by the public, with the constituents I could not find any reason why I should not at least respond to the will of the people to pursue something I was not totally convinced had been eliminated as totally unconstitutional," board member Bill Raglin told the Daily Mail. "I'm not going to go against the ruling of the courts, but I want to hear what the courts have to say," he said. "And I'm not willing to accept what I am told by the ACLU lawyer or anyone else because it's an opinion they have -- it's not a court ruling."

Now, the warnings of legal challenges have come true. On November 26, the American Federation of Teachers (AFT) West Virginia affiliate filed suit in Kanawha County District Court seeking to block the program from being implemented. Last week, the West Virginia Education Association (WVEA) and the American Civil Liberties Union (ACLU) joined the fray, filing a second district court lawsuit seeking to block the program before it goes into effect on January 1.

"The Board left us no choice but to file the suit once they decided to implement a policy that risks student safety and violates the constitutional rights of its employees," said AFT-Kanawha chapter head Fred Albert. "The policy violates the constitutionally protected privacy rights of those school employees who will be randomly screened and who are not engaged in safety sensitive positions. The policy, in effect, places all teachers under suspicion; and this is both morally and legally wrong."

"The proposed random drug testing of public school employees is an affront to our fundamental rights and a senseless waste of scarce taxpayer dollars that will not increase student safety," said Adam Wolf, an attorney with the American Civil Liberties Union. "Public servants should not be required to surrender their constitutional rights as a condition of serving their community."

The AFT-Kanawha's Albert told the Chronicle Wednesday that while the issue of employee drug use probably drove the board to its decision, there was really very little of substance to it. "We had a case three years ago of an administrator who was caught with a substance, but he was cleared in a court of law and reinstated," Albert said. "There have been two other cases, but neither one was people showing up impaired by drugs. I think this was the primary factor in the board's decision."

Albert was quick to point out that while his organization is fighting the new policy, that doesn't mean it supports dope-snorting teachers. "My union does not and has never advocated for teachers or any other school employee using drugs or being impaired and putting children in harm's way," he said. "There is a policy in place, approved by the board about a year ago, that anyone who appeared to be impaired on the job should be tested on suspicion. We don't have any problem with that. But we don't feel that the rest of us who don't use illegal drugs should be considered guilty and have to prove our innocence."

Now it will be up to the courts to decide. And the Kanawha School Board is preparing to spend hundreds of thousands of scarce education dollars to find out. Albert and the teachers think that money, and the estimated $40,000 a year to implement the random drug testing program, could be better spent actually educating students.

Don’t Consent to Police Searches or Answer Incriminating Questions

Here’s the perfect illustration of how not to handle an encounter with police:

WHEELING -- The Ohio County Sheriff's Department initiated a traffic stop early this morning at the Mount de Chantal Kroger.

After getting permission to search the vehicle, deputies found nearly a half a pound of marijuana, a digital scale, baggies and blunt wraps, along with some cash.

25-year-old Andre Smith of Wheeling, 20-year-old Jeff McGhee of Wheeling and 18-year-old George Oliver were arrested and taken to the Northern Regional Jail.

One of the suspects later admitted to deputies that the marijuana was purchased out-of-state, and he planned to sell it. [WTRF]

Of course, there’s no guarantee that refusing the search will prevent it from happening, but it often will, and if police search you anyway, you’ll at least have a shot at getting the evidence thrown out in court. I’ve discussed this exact issue with dozens of defense attorneys and the answer is always the same: if the suspect refused consent, the charges are frequently dropped.

I recently met a defense attorney from Kansas who called Flex Your Rights to order a copy of our video. Doing criminal defense in Kansas, this guy deals with traffic stop arrests all day every day. The drug war in Kansas is initiated on the highways and then fought out in court, and this lawyer is the guy you want to know if you get jammed up in a traffic stop. He said he gets very few clients who refused consent, and as a result a lot of his work involves negotiating plea bargains for drug cases. On the rare occasion that he gets someone who actually had the presence of mind to refuse the search, they walk. He’s a badass and he knows how to annihilate improperly seized evidence.

Every case is different and police misconduct is a virus, but the bottom line is that giving consent will always destroy you if there’s anything in the car. It’s just that simple. Don’t play their game.

Random Drug Testing Won’t Save the Children From Heroin

Here’s drug czar John Walters shamelessly using a young woman’s death as an opportunity to plug student drug testing:

Heroin killed 19-year-old Alicia Lannes, and her parents say she got the drug from a boyfriend.  Experts say that's how most young kids get introduced to drugs: by friends or relatives.

While teen drug use is declining, Walters says a Fairfax County heroin ring busted in connection with Lannes' death proves it's still a problem.  He supports a federal program used in more than 4,000 schools to randomly drug test students.

"There's no question in my mind had this young woman been in a school, middle school or high school with random testing," said Walters, "She would not be dead today." [FOX DC]

Walters sounds supremely confident, as usual, yet the reality is that random drug testing is often impotent when it comes to discovering heroin use. Student drug testing programs typically rely on urine tests, which can only detect heroin for 3-4 days after use. Only marijuana -- which stays in your system for up to a month – can be effectively detected this way. Thus, random testing actually incentivizes students to experiment with more dangerous drugs like heroin that increase your chances of passing a drug test.

And thanks to the complete failure of the drug war, heroin is stronger today than ever before:

The drug enforcement agency says the purity of heroin found in Virginia is typically higher than usual—making it more deadly.

"They tend not to know how to gauge the strength and they usually take more than they need to," said Patrick McConnel, who oversees Treatment for Youth Services Administration Alcohol and Drug Services.

There are no easy answers here, to be sure, and I don’t claim any monopoly on the solutions to youth drug abuse. But I guarantee you that the problem isn’t our failure to collect more urine from young people. As long as the most dangerous substances continue to be manufactured, distributed, and controlled by criminals, the face of our drug problem will remain the same.

Things are Bad All Over (including the Republic of Georgia)

Things are bad in the drug war here in the US, but they're bad all over. The Hungarian Civil Liberties Union has released another in its series of films on international drug policy, this one detailing mass forced drug testing among other abuses in the Republic of Georgia:

Washington Times Attacks Flex Your Rights

FYR's response to the new random search program on public transportation in DC is continuing to generate media hits, including a negative reaction to our work in The Washington Times. 

The editorial includes factual errors regarding the breadth of the program (amazingly, they didn’t know it includes bus stops) and even accuses Flex Your Rights of endangering public safety. It's revealing that our only opposition got the facts completely wrong. Fortunately, Washington Times published my reply today. Check it out.

It’s not everyday that I get accused of endangering everyone in DC, so you can imagine how amused I am by all of this.

Southeast Asia: Philippines Supreme Court Upholds Drug Testing for Students, Workers, But Not Political Candidates or Criminal Defendants

The Philippines Supreme Court this week upheld mandatory, random, suspicionless drug testing of workers and high school and college students, but struck down as unconstitutional provisions of the Comprehensive Dangerous Drugs Act of 2002 that required drug tests for candidates for political office or those charged with criminal offenses.

In a unanimous decision written by Justice Presbitero Velasco Jr., the court noted that the law says the random drug testing of employees "shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity," and that employers are not required to report positive test results to prosecutors. It also found that "the intrusion into the employee's privacy... is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal."

In the case of students, the high court found that drug testing was not only constitutional, but perhaps even necessary. It noted the presence of drugs in the country "that threatens the well-being of the people, particularly the youth and school children who usually end up as victims," adding that, "until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected."

Candidates for political office, however, may not be subjected to drug tests as condition of candidacy, the court held. The drug law's provisions requiring testing of candidates unconstitutionally added to the constitution's provisions defining the qualification or eligibility of candidates, the Supreme Court said.

The court was equally kind to people charged with criminal offenses, holding that they cannot be drug tested because they might incriminate themselves and because drug testing in their cases would not be random or suspicionless. "To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the objectives of RA 9165 [the drug testing law]. Drug testing in this case would violate a person's right to privacy guaranteed under Section 2, Article III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves," the opinion declared.

Flex Your Rights Protests Random Searches in D.C.

{Cross-posted from Flex Your Rights}

On Wednesday, Flex Your Rights brought together numerous allies, volunteers and friends to protest random searches on public transportation in the Nation’s Capital. The effort was aimed at voicing opposition to the new search policy, while educating the public about the 4th Amendment right to refuse police searches.

The event generated considerable media attention, including the Washington Post, the Washington CityPaper, and local ABC and NBC affiliates:

Thanks so much to our friends at the Electronic Privacy Information Center, Law Enforcement Against Prohibition,, Students for Sensible Drug Policy, and all the volunteers who came out and made this effort a success.

The constant emergence of new threats to our civil liberties is a difficult thing for any freedom-loving citizen to behold, but this unfortunate event also provided a unique opportunity to educate the public about 4th Amendment rights, and that’s exactly what we did.

Random Searches in Our Nation’s Capital

I’ve got a post at Flex Your Rights about a new random search program that will supposedly protect Washington, DC’s public transit system from terrorism. Of course, anyone found with contraband will be arrested, and you can bet they’ll be finding a lot more bongs than bombs.

As many of you know, I don’t buy into that defeatist "4th Amendment is dead" hyperbole, because that mentality leads people to surrender and start waiving their rights. The greatest threat to the 4th Amendment is the widespread misconception that it’s no longer worth understanding and asserting our rights. People who know their rights get better outcomes during police encounters and that remains true despite anything and everything the wars on drugs and terror have done to undermine our basic freedoms.

So we put together The Citizen’s Guide to Refusing DC Metro Searches. If you live in the DC area, or plan on visiting sometime, you’ll want to check this out.

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