Opponents and supporters agreed on one thing when the Supreme Court ruled four years ago that schools could randomly test student athletes for illegal drug use. The ruling, they said, would spur districts across the country to begin routine drug testing of athletes in middle school and high school.
To organizations such as the American Civil Liberties Union, such a prospect was cause for outrage. It “vehemently” condemned the court’s ruling, which it said could affect every school district in the country.
To advocates of drug testing, however, the court’s opinion gave schools a powerful way to counter student drug use. The White House adviser on drug control policy said the court’s 6-3 opinion was a “victory for kids” and predicted schools nationwide would start routine testing.
But since the court ruled in Vernonia School District vs. Acton, something quite different has happened. Though some schools clearly have gone well beyond what the court specifically allowed, testing virtually anybody involved in extracurricular activities, the vast majority, including those in Illinois, largely have not launched drug testing programs.
“That Supreme Court decision probably made no difference at all in our state,” said David Fry, the executive director of the Illinois High School Association. “I’ve not heard of any school district that has implemented drug testing in the last two to three years.”
Whether for lack of community support, the high cost of testing–about $35 a test–or legal concerns, the story across the country is much the same. Although some school districts have implemented drug testing, others have abandoned their programs. As a result, the number of testing programs has stayed constant, said Jerry Diehl, an assistant director with the National Federation of State High School Associations.
“In terms of the 15,000 or so school districts across the country, there are only a handful that have taken up drug testing,” added Edwin Darden, a staff attorney at the National School Boards Association. “There hasn’t been a great sweep across the landscape of school districts moving to drug test.”
But that doesn’t mean the ruling has had no effect. Some schools have started drug testing and even taken it a step beyond what the court specifically allowed when it upheld the drug-testing policy in Vernonia, an Oregon school district.
In that case, the court said schools confronted with serious drug problems can randomly test athletes in junior high and high school. It marked the first time the court has allowed school officials to search students who are not suspected of wrongdoing.
The opinion, by Justice Antonin Scalia, said random tests were justified because of the serious problem in the school and because students, particularly athletes, are entitled to less protection under the 4th Amendment than adults. The court didn’t decide whether schools could test all students involved in any extracurricular activity, but some lower courts recently have said the broadly worded opinion would allow it.
To that end, some schools have begun testing all students involved in extracurricular activities, whether it’s the chess club or the academic team, instead of limiting it to athletes.
“In the last two years, word somehow got around among school boards in some regions that drug testing students for extracurricular activities . . . might be appropriate,” said Graham Boyd, counsel for the ACLU’s National Drug Policy Litigation Project.
Within the past year, Boyd said the ACLU has received complaints from parents about drug testing in schools in 12 states: Idaho, Wyoming, Oklahoma, Louisiana, Wisconsin, Indiana, Arkansas, Florida, North Carolina, Michigan, Ohio and Texas.
Schools have been more confident of their ability to begin broader testing because of a decision last year by a federal appeals court in Chicago. The decision permitted testing for students in extracurricular activities at an Indiana school, and the Supreme Court declined to review the case.
The Supreme Court’s refusal to get involved is not a ruling on the issue, but it means schools in the appeals court’s jurisdiction, Indiana, Illinois and Wisconsin, can engage in such broad testing. The Illinois Association of School Boards has developed sample policies for schools that include testing for students in extracurricular activities.
Anna Lovern, a director in the association’s policy department, said few schools have adopted the policy, primarily because of the expense or because they don’t believe it is necessary.
Still, the case has emboldened other school districts to begin similar programs nationwide, said Joseph Franz, who owns a company in Ohio that tests for drugs on behalf of school districts.
Those attempts to expand the decision beyond the facts of the Vernonia case, which involved only athletes, illustrates how the law can quickly develop in the wake of a Supreme Court ruling.
Some of the justices anticipated it in the Vernonia case. Justice Ruth Bader Ginsburg, who joined Scalia’s opinion upholding the Vernonia program, wrote separately to stress that the ruling should apply only to student athletes. She noted that schools could justify testing athletes because, among other things, they run a risk of physical harm if they use drugs while competing. But the other five justices in the majority refused to go along with Ginsburg on that point.
Thomas Christ, the Portland, Ore., lawyer who represented student James Acton in his fight against the Vernonia School District’s policy, said he wasn’t surprised that school districts are expanding the scope of drug testing to include all extracurricular activity.
“That’s natural. It comes with any Supreme Court decision. The winner will seek to expand the ruling and the loser will try to confine it,” he said.
Christ said the justification for testing athletes, that they were at risk of injury on the playing field, could also apply to shop classes or driver’s education, for example.
“Once you open the door to testing without suspicion, it’s kind of hard to close it again,” Christ said. “And there’s room in the majority opinion to go either way on whether non-athletes are subject to testing, which is probably why lower courts are struggling over it.”
Timothy Volpert, the lawyer who argued on behalf of the Vernonia School District before the Supreme Court, said he believed it was a “stretch from the Vernonia decision” to hold that the 4th Amendment would allow drug testing of members of the chess club or band.
That’s because one of the linchpins of the decision was that student athletes, because of the nature of sports and the locker room environment, have a lesser expectation of privacy than other students, Volpert said.
Volpert said he believed schools would have to show there was evidence of a serious drug problem in the non-athlete population before such testing would be legal. Vernonia officials were able to show problems existed among athletes, he said.
“I see Vernonia historically as part of a slippery slope of the court’s decisions favoring the government’s right to search, over and above the individual’s right to privacy,” Volpert said.
Boyd is representing two high school juniors, Daniel James and Lindsay Earls, in their effort to stop a drug testing program at their small high school 30 miles outside of Oklahoma City. At issue is a policy that requires all students in grades 7-12 who sign up for extracurricular activities to agree to a urine test.
“I feel like I’m living in `1984,’ ” said James, 16, referring to George Orwell’s novel about government oppression.
James, who wants to join the school’s academic team, said he “could take the drug test right now and be perfectly fine. I’d pass it, but it’s the principle.”
Ken Shultz, the athletic director of Homewood-Flossmoor Community High School, which began drug testing athletes in 1990, said he is surprised more schools don’t test.
Homewood-Flossmoor tests 20 students at random every other week for drugs and, in the last decade, has gotten fewer than 30 positive results. That indicates the testing deters students from drug use, Shultz said.
He keeps the results confidential, disclosing them only to the student and parent, not the coach or the principal. The student is not punished or kicked off the team, so long as he or she attends a treatment program. He said no student has ever declined to take the test or refused to sign the consent form.
“It’s been a very positive reaction,” he said. “The comments now are, `Why aren’t you doing band and speech and debate and activities like that?’ “
“We might,” he added. “We get a lot of comments: `It’s not the athletes who are the problem, it’s the other kids.’ “
