Two weeks ago, DRCNet reported on the Lockney, Texas, high school drug testing case, in which a US District Court judge ruled unconstitutional the random, suspicionless drug testing of all students in the district's junior high and high school grades (http://www.drcnet.org/wol/177.html#lockney). Now, judges on the 10th US Circuit Court of Appeals, have ruled the same way in the case of the Tecumseh, Oklahoma, school board and its testing program.
In Tecumseh, beginning in 1998, the school board required random drug tests for all students involved in extra-curricular activities. In the fall of 1999, students Lindsay Earls, a member of the show choir, marching band and academic team, and Daniel James, also a member of the school's academic team, challenged the policy in court, backed by the American Civil Liberties Union.
As in Lockney, Earls and James ran up against significant popular support for the testing regime. According to reports in the Shawnee (Oklahoma) News-Star, a public meeting prompted by the students' lawsuit was packed with parents and community members who applauded any measures to protect their children from drugs.
In March 2000, US District Court Judge David Russell upheld the drug testing, ruling that the district's concerns about student health trumped constitutional protections against unreasonable searches and seizures.
A split panel of the 10th Circuit Court, sitting in Denver, begged to differ. If student health had been the district's primary concern, the majority wrote, then the district would test all students, not just a certain group -- those who had been targeted for their extraordinary achievements.
The 2-1 majority opinion said, "Schools must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to testing, such that testing that group of students will actually redress its drug problem."
The judges added that, "It is difficult to imagine how participants [in extracurricular activities] are in physical danger if they compete... while using drugs, any more than any student is at risk simply from using drugs. In essence, [the testing policy] too often simply tests the wrong students."
The Tecumseh school board has not decided whether to appeal to a full panel of the appeals court, as dissenting Judge David Ebel encouraged it to do. In his dissent, Ebel wrote that the Supreme Court may have to decide "the important constitutional issue presented in this case."
The Lockney and Tecumseh decisions conflict with rulings in other federal appeals courts since 1995, when the Supreme Court gave its imprimatur to the suspicionless drug-testing of student athletes in the Vernonia, Oregon, school district. The US 7th Circuit Court of Appeals in Chicago upheld an Indiana district's program of drug-testing students involved in extracurricular activities, prompting a wave of school districts around the country to begin similar programs. (The Indiana policy was reversed last August by the Indiana Court of Appeals, which found that it violated the Indiana constitution. Earlier this month, however, the Indiana Supreme Court accepted the case for review, and some of the 69 school districts that had halted drug-testing after the appeals court ruling have begun re-instituting the program, the Indianapolis Star reported.)
State courts in New Jersey, Oregon, and Pennsylvania have also struck down similar policies in the last few months.
"The political and legal atmosphere is really changing," said Graham Boyd, the director of the American Civil Liberties Union's (ACLU) drug policy litigation project. "There's not just the knee-jerk reaction against any effort to challenge a policy that purports to be about pursuing the war on drugs," he told the New York Times.
With conflicting rulings emanating from the federal appeals courts, student drug testing appears destined to be revisited by the Supreme Court.