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Matt Fogg is Awesome

Back in April, the Metropolitan Police Dept. here in D.C. announced plans to go door-to-door asking to search homes in high-crime neighborhoods. Flex Your Rights joined with several local groups to oppose the measure and we shot this great video of Matt Fogg from Law Enforcement Against Prohibition speaking at a community meeting.

I post it now because it randomly popped up at The Agitator and DrugWarRant last week and I realized I’d never shared this here. Matt Fogg is wildly entertaining and gets me riled up every time I run into him.

MPD cancelled the home-search program due to public opposition, proving that events like this can really make a difference.

Search and Seizure: Supreme Court to Hear Case of School Girl Strip-Searched for Ibuprofen

The US Supreme Court agreed last Friday to review the case of a 13-year-old honor student who was subjected to a strip search by school officials looking for prescription-strength Ibuprofen. In doing so, it will once again revisit the contentious topic of just how far school officials can go in performing anti-drug searches that would be considered unconstitutional if conducted outside the school setting.
US Supreme Court
The case had its genesis in the 2003 search of then 8th-grade honor student Savana Redding after another student who had been found with Ibuprofen pills in violation of school policy said Redding had given her the pills. Redding denied having provided any pills. School officials searched Redding's locker and belongings and found nothing. They then made Redding strip to her bra and underwear and ordered her, in the words of the appeal court, "to pull her bra out to the side and shake it" and "pull out her underwear at the crotch and shake it." No pills were found.

Redding's mother filed a lawsuit challenging the strip search as unconstitutional and seeking damages from the school district. A trial judge dismissed the lawsuit against school officials, ruling that they were immune from suit. A three-judge panel of the US 9th Circuit Court of Appeals agreed, but was overturned in a 6-5 vote by the full court, which ruled that the suit could go forward against the assistant principal who ordered the search.

The 9th Circuit majority was scathing in its opinion. "It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude," Judge Kim McLane Wardlaw wrote for the majority, quoting a decision in another case. "More than that: it is a violation of any known principle of human dignity."

But in his dissent, Judge Michael Daly Hawkins said that while the case was "a close call" given the "humiliation and degradation" endured by Redding, school officials were "not unreasonable" in ordering the search. "I do not think it was unreasonable for school officials, acting in good faith, to conduct the search in an effort to obviate a potential threat to the health and safety of their students. I would find this search constitutional," he wrote, "and would certainly forgive the Safford officials' mistake as reasonable."

Now, the Supreme Court must decide two questions: "Whether the Fourth Amendment prohibits school officials from conducting a search of a student suspected of possessing and distributing prescription drugs, and whether the 9th Circuit departed from established principles of qualified immunity in holding that a public school administrator may be liable in a damages lawsuit for conducting a search of a student."

The case is Redding v. Safford Unified School District #1, or, as it is now known with the school district appealing, Safford Unified School District v. Redding.

Southeast Asia: Philippines President Names Herself Drug Czar, Orders Random Testing of All High School Students, More to Come

Philippines President Gloria Arroyo named herself the country's drug czar Monday and ordered government agencies to prepare for battle against big-time drug traffickers. But in the meantime, she has announced new marching orders on another front: student drug testing. As one of her first acts as drug czar, she ordered random student drug testing for every high school in the country, public or private.
Philippine president and top drug war demagogue Gloria Arroyo
The immediate cause of Arroyo's seizure of the reins of drug control policy was the "Alabang Boys scandal," in which three Ecstasy traffickers managed to get initially acquitted despite the strong evidence against them, leading to suspicions of crooked prosecutors. Arroyo this week ordered five prosecutors suspended pending further investigation.

But problems in the Philippines' drug war policing go much further than the Alabang Boys. Filipino drug fighters have compiled a dismal record in prosecuting drug evidence, due apparently, to equal parts incompetence and corruption. Of the nearly 100,000 cases filed by the Philippines Drug Enforcement Agency (PDEA) in the last five years, nearly 78,000 are still unresolved.

Arroyo has pledged to change all that. "Governments that delay action against illegal drugs, or regard it as a routine police matter, do so at their own peril," Arroyo told a Monday cabinet meeting. "A country awash with illegal drugs is a country compromised, its law and order institutions tainted and corrupted. I will temporarily act as czar, or overseer, of the war against illegal drugs," Arroyo added, stressing that the campaign would include boosting law enforcement and prosecution.

On Tuesday, Arroyo showed she meant business by sending Executive Secretary Eduardo Ermita out to tell reporters she had ordered law enforcement agencies to prepare an order of battle against traffickers. "Our law enforcement agencies involved in the campaign must come up with specific actions against those who are known big-time people involved in drug trafficking. It follows without saying, the President wants immediate identification of those who could be subject of this campaign and bring them before the bar of justice," Ermita said at the Palace news conference.

Anybody involved in drugs is fair game, he warned. "There will be no sacred cows on this. The drive will go all the way. Anyone who will be involved, whoever they may be, they will have to account before the law."

But it is high school students who will first feel the tender mercies of Arroyo's newly reinvigorated war on drugs. The Department of Education announced this week that while it had already planned to reinstitute random drug testing of students -- the Philippines did it between 2003 and 2005 -- it was now moving ahead at an accelerated pace to suit Arroyo's wishes.

And testing of students may be just the beginning. Some Philippines political figures are talking about drug testing employees of outsourced call center workers, others are calling for testing university students, and the government is currently considering drug testing all government employees.

Supreme Court Strikes Another Small Blow Against Exclusionary Rule

The Supreme Court handed down yet another bad 4th Amendment ruling today. I've got a post over at Flex Your Rights explaining, as I often do, that the 4th Amendment isn't dead yet.

Drug Testing: Chess Players Rebel

The World Chess Federation, better known by its French acronym FIDE, has gotten itself into a controversy over drug testing. FIDE instituted its anti-doping program in a so far futile attempt to gain chess entrance into the Olympic Games, but now, with its threat to order a two-year suspension for Ukrainian Grandmaster Vassily Ivanchuk, the federation is facing rebellion and ridicule in the ranks.
chess board (courtesy
Players had already ridiculed the drug testing policy and criticized the quest to gain Olympic status as misguided, but the looming Ivanchuk suspension is bringing matters to a head. Ivanchuk, the third-ranked player in the world and a very popular figure in the game, failed to take a mandatory drug test after he lost a crucial game at the Chess Olympiad in Dresden, Germany, in November. Instead of completing the drug test, an angry and distraught Ivanchuk left the building and was later seen stomping around and kicking posts outside.

"Can we believe such news?" Latvian-born Spanish Grandmaster Alexei Shirov, once a challenger for the world title, wrote in an open letter on the Ivanchuk case in December. "A player who has been at the very top for more than 20 years... gets banned simply because he wanted to calm down after a lost game?"

Another prominent player, German veteran Robert Hübner, one of the best players in the West during the 1970s and 1980s, refuses to participate in FIDE events to protest the drug testing policy.

The Ivanchuk affair is a case of "bureaucracy gone haywire," Washington, DC, tournament organizer Michael Atkins told the Washington Times this week. "Enhancing physical performance for athletes obviously needs testing, but I don't think anyone has ever shown that there are mental performance-enhancing illegal drugs that would improve play over the board to the degree that it affects results," he said. "Having to become a chess cop would drive me away from tournaments quickly. It really isn't worth it to do this just to get in the Olympics."

FIDE's anti-doping regulations are based on those of the World Anti-Doping Association, the body that governs drug testing in Olympic sports. The association's list of prohibited substances includes not only steroids, stimulants, gene doping and other "performance enhancing" substances, but also all illicit drugs, including marijuana, LSD, and heroin.

This isn't the first time FIDE has stirred controversy in the ranks over anti-doping policies. In the 2004 Chess Olympiad on the Spanish island of Mallorca, officials forfeited two lower ranking players after they objected random drug tests after their match. But Ivanchuk is a much more prominent and well-liked player, and that's giving the federation pause.

FIDE officials have postponed announcing a final decision on the mandatory two-year ban. Instead, a "doping hearing panel" will review the case in the next couple of months and make a decision. In the meantime, Ivanchuk is still playing tournament chess, and FIDE is a laughing stock for its members.

Metro Threatens Flex Your Rights with Legal Action, ACLU Defends

Flex Your Rights' opposition to random searches on D.C. public transportation has finally pushed Metro officials over the edge. Whole story here.

Drug Testing: Federal Judge Rejects West Virginia School Board's Random Tests of Teachers

A federal judge in Charleston, West Virginia, Monday stopped the Kanawha County school system's plan to randomly drug test teachers in its tracks, issuing a scathing rebuke of the policy and the school board as he did so. US District Judge Robert Goodwin said the plan would force teachers to submit to an unjustified and unconstitutional search.
drug testing lab
Despite being warned ahead of time that the county was in for a costly and probably futile legal battle if it approved the policy, the school board did so anyway in a 4-1 vote in October. The West Virginia chapter of the American Federation of Teachers filed suit to block the policy from being implemented in late November, and the West Virginia Education Association and the American Civil Liberties Union joined the fray last month.

On Monday, Judge Goodwin granted the motion for a temporary injunction. Goodwin said the school board's plan to test one-quarter of teachers and other school workers each year was crafted although there was no evidence of a pervasive drug problem in the community and was based on unreasonable worse-case scenario hypotheticals. He asked why the district did not also have a policy to randomly test teachers for tropical diseases.

"Total security for us and our children is only possible -- if unlikely -- in a totalitarian state," Goodwin said. "Who wants to live in a society when a government will stop at nothing to prevent bumps and bruises," he added.

Previous federal court decisions have held that government employees cannot be subjected to random suspicionless drug testing -- with a handful of exceptions, most related to public safety and security. The school board offered up the novel argument that teachers -- and cafeteria workers and janitors -- held "safety sensitive" positions and if they were impaired by drug use their inability to supervise a classroom could jeopardize student safety. But Judge Goodwin wasn't buying that.

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.

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