SourceShould schools drug test? Lawyer-father says, `Yes'
By John Donald O'Shea
To Drug Test, or Not to Drug Test? That is the Question. -- "Hamlet," Shakespeare (more or less)
Few Americans who are not lawyers will ever read the full opinion of a case decided by the United States Supreme Court. The Rockridge school district is considering establishing a policy that would require some students to be tested for illegal drugs. A number citizens claim such a policy will violate the "privacy rights" of the students tested.
The leading case on the issue is the Supreme Court 2002 decision in Board of Education v. Earls, 536 U.S. 822. I intend to set forth a number of passages from the opinion. I believe that it is good for citizens to see for themselves the depth of reasoning our court is capable of bringing to an issue.
In 1998, the school district of Tecumseh, Okla., adopted a drug testing policy, which required all students to consent to drug testing prior to participating in any extracurricular activity. Additionally students were required to submit to random drug testing while participating in that activity, and to be further tested at any time upon reasonable suspicion.
Not surprisingly, two students sued the School District, challenging the policy. They alleged that the policy violated their Fourth Amendment rights, and sought to have it struck down as "unconstitutional." They also argued that the district failed to identify a "special need" for testing students who participate in extracurricular activities, and that the "Drug Testing Policy neither addressed a proven problem nor promised to bring any benefit to students or the school."
The Supreme Court, in Earls, disagreed and held that the School's Drug Policy was "reasonable" and constitutional. "Because this Policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, we hold that it is constitutional."
The high court's reasoning to me appears unassailable. I reach that conclusion both as a lawyer and a parent. Whether a policy is reasonable is always a question of fact. Whether a course of action or a policy is reasonable always involves a balancing of the competing facts and interests.
"It is true that we generally determine the reasonableness of a search by balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests."
Two excerpts from the court's opinion clearly show the "facts" or "governmental interests" that concerned the court. First, the court stated "(D)rug abuse is one of the most serious problems confronting our society today." In factual support of that statement, the court further note
"(T)]he number of 12th graders using any illicit drug increased from 48.4 percent in 1995 to 53.9 percent in 2001. The number of 12th graders reporting they had used marijuana jumped from 41.7 percent to 49.0 percent during that same period."
The court, however, was entirely mindful of the fact that the Fourth Amendment's guarantees did in fact apply to children in school. "The Fourth Amendment to the United States Constitution protects `(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Searches by public school officials such as the collection of urine samples, implicate Fourth Amendment interests."
But the court distinguished between the amendment's application in the "criminal context," and its application in the "school context."
"In the criminal context, reasonableness usually requires a showing of probable cause. The probable-cause standard, however, "is peculiarly related to criminal investigations" and may be unsuited to determining the reasonableness of administrative searches where the "Government seeks to prevent the development of hazardous conditions."
And the court explained the distinction.
"(I)n certain limited circumstances, the Government's need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion."
The court then proceeded to analyze the privacy interest involved in the context of the school environment. "(T)he subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster."
The court then stated: "The most significant element in this case is .. that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care."
It then elaborated "(W)hen the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake." Then the Court went to the heart of the issue.
"(T)he need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Indeed, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use."
Some years ago, while I was still on the bench, I stopped to have lunch in downtown Rock Island. A widely respected attorney sat and visited. I told him I had just sent a probationer to prison after a number of unsuccessful attempts at drug treatment. I recall my friend telling me that once his clients became hooked on crack cocaine, "it became their God." I had by that time reached a similar conclusion. He put it more eloquently.
Three additional arguments are generally advanced in opposition to testing: (1) keeping kids drug free is a job for the parents; (2) there is a danger of a "false positives;" and (3) the expenditure of $35 per test is
a waste of funds that could better be utilized elsewhere.
Some years ago, when Alleman was about to begin its program of drug testing, I asked one of the dads what he thought. He replied, "It's a tool that's not available to me. I'd rather know sooner rather than later." I find that logic compelling. When kids spend more waking hours at school than at home, the argument that "it's a job solely for the parents" is less than convincing.
The argument about "false positives" is also unpersuasive. My sources tell me that "false positives" from hair samples are virtually nonexistent. Dave Van Landegen, the head of Rock Island County probation, advises that his office, which has used "preliminary" urine drops for years, solves that problem by immediately having more sophisticated testing done whenever the person dropping contends that the "preliminary test" is faulty.
Nor does the $35 cost argument wash. If the cost per test is indeed $35, then 100 tests cost $3,500. If just one child becomes drug addicted, the cost to send him for in-patient substance abuse treatment is $515 per day at a facility in Rockford. When it is understood that the average stay is 30 days, the cost of treating just one child is in excess of $15,000. When a delinquent child with a drug addiction is sent to St. Charles, taxpayers pay $153 per day.
From my point of view, that of a parent and a lawyer, it makes sense to test. My dad once told me, "If you never start smoking, you'll never have to quit." If just one child doesn't start using drugs, the school renders a great service to that family. In this balancing of "the right of privacy,"
versus "the health of a child," I would opt for the latter.
John Donald O'Shea of Moline is a retired circuit court judge.