The Supreme Court this week heard oral arguments in Pottawatomie County Board of Education v. Earls, the case brought by Tecumseh, OK, high school student Lindsay Earls, who challenged the school district's policy requiring drug tests for all students involved in any extracurricular activities. In 1995, the Supreme Court okayed drug testing for student athletes in certain circumstances, but attempts by local school boards to extend drug testing beyond athletes have met with mixed results in state and federal courts. The Tecumseh policy was found unconstitutional by the 10th US Circuit Court of Appeals, but other federal appeals courts have approved similar schemes in other school districts.
In an ominous note for student privacy, government attorneys arguing the case used the occasion to claim that the law already permits the blanket, suspicionless drug testing of all high school students -- not just athletes or those involved in extracurricular activities. Deputy Solicitor General Paul D. Clement told the court just that. He argued that it is constitutional to test all students, not just those in voluntary extracurricular programs, as was the case at Tecumseh High School. "We're not saying this is constitutional because it's consensual," he said.
Clement also attempted to draw a parallel between US Customs Service employees, whose testing the Supreme Court okayed in 1989 because they were on the "front lines" of the war on drugs, and high school students. "Children today are on the front lines of the drug problem on the demand side," he told the court.
A ruling upholding the school district or going even further to accept the expansive reasoning of the Justice Department could lead to massive drug testing of the nation's 24 million secondary students. Currently, only a small number of the country's 15,500 school districts operate drug testing programs, in large part because of uncertainty over their legality.
The hour-long oral arguments were marked by heated exchanges between the justices and the attorneys and among the justices themselves. Justice Anthony Kennedy drew gasps from the courtroom audience when he appeared to personally attack plaintiff Lindsay Earls. Kennedy posed a hypothetical with one school that had drug testing and one that did not -- "the druggie school," he called it. "Every parent" would want to send his children to the first school, Kennedy told plaintiff's attorney Graham Boyd of the ACLU's Drug Policy Litigation Project, but then added dismissively, "Well, perhaps not your client."
Outside the Supreme Court after the hearing, a visibly upset Lindsay Earls told reporters: "I don't use drugs. I shouldn't have to prove that."
But if the questions and comments of the justices are any indication, she and every other high school student in America may soon have to do precisely that. Boyd argued that Tecumseh had not shown there was a drug problem justifying drug tests and that such tests violated the Fourth Amendment injunction against unreasonable searches. Neither had school officials demonstrated any particular risks to participants in extracurricular activities, Boyd said. "There's nothing about band or choir that is dangerous," Boyd said.
But Justice Antonin Scalia, author of the 1995 decision okaying testing of student athletes, shot back: "You think life and death is not at issue in the fight against drugs? How about death from an overdose?"
"Of course, your honor," Boyd gamely replied, "but these students are the least likely to use drugs. So there is almost no chance of that happening."
But Scalia was not persuaded. He told the courtroom that the key to deciding whether the policy was constitutionally permissible was whether the policy was one a "reasonable guardian and tutor" of students in a school setting might apply.
Justice Kennedy also telegraphed his position with his questions and comments. After Boyd cited the school district's own figures to show that it did not have a significant drug problem -- only three out of 550 tests administered in two years came back positive -- Kennedy questioned why a lack of evidence of drug use should hold back testing. "You're saying there must be a great crisis -- they should lose a few years of students before acting?" he asked. Kennedy also dismissed objections to drug testing by suggesting requiring students to urinate in a cup was little different than requiring them to wear school uniforms.
Justice Stephen Breyer chirped in to note that in the 1995 Vernonia case, the court ruled that a school district can impose testing on student athletes in response not merely to local drug problems but to nationwide drug use. The Tecumseh school "did what I would have done," said Breyer. "I would have asked my kids what's really going on in the school."
Only two justices, Sandra Day O'Connor and David Souter, evinced any skepticism about the Tecumseh policy. Justice O'Connor raked school district attorney Linda Meoli over the district's resort to drug testing without any evidence of a drug problem. She pointed out that the district had been telling the federal government in annual reports that it had no drug problem and that the evidence the district presented suggested that students involved in extracurricular activities were less likely to use drugs than those who were not. "It seems odd to leave those students untested," she said. "It's counterintuitive, isn't it?" She later added: "This is a school that certified to the federal government that it did not have a drug problem. I mean, the whole thing seems odd."
Justice Souter also zeroed in on the district's claim that it had a significant drug abuse problem. When attorney Meoli defended the policy as "a reasonable response to drug use," Souter cut her off and asked about the annual reports showing no drug abuse. "Were they lying?" he asked. Noting also that fewer than a handful of students had tested positive for drugs, Souter added: "I don't see how you don't lose, whether we look at it ex ante (from before) or ex post (from after)."
The normally mild-mannered Souter bore down so sharply on Meoli that Chief Justice William Rehnquist intervened, saying "Let her answer the question, will you?"
But Souter's and O'Connor's remarks aside, the previous history of the court and the tenor of the questions from the bench suggest that the Supreme Court is ready to once again deepen the drug war exception to the Fourth Amendment. The court is expected to rule by June.