In a Thursday ruling the Supreme Court decided in a 5-4 vote to allow public schools to conduct drug testing of any students involved in any type of extracurricular activity. Justice Clarence Thomas expressed the opinion of the majority stating that youths involved in extracurricular activities voluntarily give up some of their rights to privacy. He further argued that though urination is listened to by the faculty member present that the intrusion upon the student's privacy is "negligible," especially because "male students [are allowed] to produce their samples behind a closed stall." According to the majority opinion, this "negligible" intrusion is justified by the need to fight drugs. Thomas quoted an earlier ruling that "the necessity for the State to act is magnified by the fact that this evil [drug use] is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction... Indeed, the nationwide drug epidemic makes the war against drugs a pressing concern in every school."
Justice Sandra Day O'Connor wrote the opinion for the dissenting justices, including Souter, Ginsburg and Stevens. She began by mentioning that she dissented in the earlier drug testing case that the court heard and from which it drew its precedents. She wrote, "Many children, like many adults, engage in dangerous activities on their own time; that the students are enrolled in school scarcely allows government to monitor all such activities." She further criticized the majority for stating that extracurricular activities are part of the educational system in order to justify the school conducting drug tests yet stating that they were voluntary to justify that the drug tests are not forced upon the students. Ginsburg added stinging criticism of the Tecumseh, Oklahoma school district program that the ruling upheld, calling it "capricious, even perverse."
"We believe the testing of students violates their 4th amendment right to protection from unreasonable search and seizure," said Shawn Heller, National Director of Students for Sensible Drug Policy (http://www.ssdp.org). "The role of schools is to educate, not investigate and incriminate. Schools can perform a useful rule in educating students about the real harms of drug and alcohol use. This shouldn't involve the taxpayers writing a blank check to the drug testing industry to invade student privacy when drug testing can't reduce the harms caused by drug and alcohol use." Heller added, "After-school programs are the best way to keep kids off drugs and off the street. Being part of the band or the student newspaper gives a kid something to do."
Graham Boyd, director of the ACLU's (http://www.aclu.org) Drug Policy Litigation Project and attorney for Tecumseh student Lindsay Earls told the Associated Press, "I find it very disappointing that the court would find it reasonable to drug-test students when all the experts, from pediatricians to teachers, say that drug testing is counterproductive."