The Court's ruling
turns logic on its
head, giving the
insides of students'
bodies less protection
than the insides of
their backpacks, the
contents of their
bodily fluids less
protection than the
contents of their
telephone calls.
IN 2002 the U.S. Supreme Court decided an important case (Board of Education v. Earls) opening the doors to
much wider drug testing of America's public school
students. The day after the decision, Psychemedics, a
company that widely markets hair testing
for MDMA and other illegal drugs, pronounced the decision very good for business, its CEO commenting, "We believe that
yesterday's Supreme Court decision to
broaden the parameters of drug testing in
public high schools could dramatically
increase the number of drug tests performed." Unfortunately, while drug testing
companies work to fill their cups and stuff
their pockets, the rest of us, with our
children leading the way, are being forced
down a dark and dangerous path.
Raised with the ever-present
specter of coercion and control,
where urine testing is as common
as standardized testing,
today's students will have little
if any privacy expectations
when they reach adulthood.
As a result,
within a single generation,
what society presently regards
as a "reasonable expectation
of privacy" will be considerably
watered down.
Rivers of urine will have eroded
the Fourth Amendment,
our nation's strictest restraint on
the over-reaching and strong-arm
tendencies of some
government police agents.
The Supreme Court's ruling giving
public school authorities the green light to
conduct random, suspicionless, drug testing
of all junior and senior high school students
wishing to participate in extra-curricular
activities, teaches by example. The lesson,
unfortunately, is that the Fourth Amendment has become a historical artifact, a
quaint relic from bygone days when our
country honored the "scrupulous protection
of Constitutional freedoms of the individual." (See West Virginia State Bd. of Ed. v.
Barnette, 319 U.S. 624, 637 [1943].)
The Court's ruling turns logic on its
head, giving the insides of students' bodies
less protection than the insides of their
backpacks, the contents of their bodily
fluids less protection than the contents of
their telephone calls. The decision elevates
the myopic hysteria of a preposterous "zero-tolerance"
Drug War, over basic values such as respect and dignity
for our nation's young people.
Under the ruling, America's teenage students are
treated like suspects. If a student seeks to participate in
after-school activities his or her urine can be taken and
tested for any reason, or for no reason at all. Gone are any
requirements for individualized suspicion. Trust and
respect have been replaced with a generalized distrust, an
accusatory authoritarian demand that students prove their
"innocence" at the whim of the schoolmaster.
The majority reasoned that requiring students to yield
up their urine for examination as a prerequisite to participating in extracurricular activities would serve as a
deterrent to drug use. The Court reasoned that students
who seek to join the debate team, write for the student
newspaper, play in the marching band, or participate in
other after-school activities knowing that their urine will
be tested for drugs, would be dissuaded from using drugs.
While some students may indeed be
deterred from using drugs, the conventional
wisdom (supported by empirical data) is
that students who participate in extracur-
ricular activities are some of the least likely
to use drugs. Noting this, Justice Ruth Bader
Ginsburg, whose dissenting opinion was
joined by Justices Stevens, O'Connor, and
Souter, harshly condemned random testing
of such students as "unreasonable, capricious and even perverse." Even when
applied to students who do use drugs, the
Court's decision merely makes matters
worse.
The federal government has tried
everything from threatening imprisonment
to yanking student loans, to spending
hundreds of millions of dollars on "Just Say
No" advertisements, and still, some students
continue to experiment with Cannabis and
other drugs. Like it or not, some students
will use illegal drugs before graduating from
high school, just as some students will have
sex. Perhaps it's time to rethink the wisdom
of declaring a War on Drugs and adopt
instead a realistic and effective strategy
more akin to safe sex education.
Ultimately, if a student does choose to
experiment with an illegal drug (or a legal
drug, such as alcohol), I suspect that many
parents, like myself, would prefer that their
child be taught the skills necessary to survive the experiment with as little harm as possible to self or others. The
DARE program, the nation's primary "drug education"
curriculum, is taught by police officers, not drug experts,
and is centered on intimidation and threats of criminal
prosecution rather than on harm reduction. Random,
suspicionless, urine testing fits the same tired mold.
Among the significant gaps in the majority's reasoning is its failure to consider the individual and social
ramifications of deterring any student (whether they use
drugs or not), from participating in after-school activities.
Students who on principle prefer to keep their bodily
fluids to themselves, or who consider urine testing to be a
gross invasion of privacy, will be dissuaded from participating in after-school activities altogether. Similarly, students who do
use drugs and who either test positive or forego the test for fear of
what it might reveal, will be banned from after-school activities and
thus left to their own devices.
Extracurricular programs are valued for producing "well-rounded"
students. Many adults look back on their extramural activities as some
of the most educational, enriching, and formative experiences of their
young lives. Extracurricular programs build citizenship. For many
universities, participation in after-school clubs and academic teams is
a decisive admissions criterion. Whether a student uses drugs or not, it
makes no sense to bar them from the very activities that build citizen-
ship, and that help prepare young people for leadership roles in the
workforce, or that help them get into college. In other words, a policy
that deters students or bans them outright from participating in
extracurricular activities is not just bad for students; it's bad for
society.
Aside from eviscerating the Fourth Amendment rights of the
nation's 23 million public school students and imposing a punishment
that harms society as much at it harms students, the decision foreshad-
ows a Constitutional Dark Ages. When a young person is told to
urinate in a cup within earshot of an intently listening school author-
ity, and then ordered to turn over her urine for chemical examination,
what "reasonable expectation of privacy" remains? When today's
students graduate and walk out from behind the schoolhouse gates,
what will become of society's "reasonable expectation of privacy?"
Raised with the ever-present specter of coercion and control,
where urine testing is as common as standardized testing, today's
students will have little if any privacy expectations when they reach
adulthood. As a result, within a single generation, what society
presently regards as a "reasonable expectation of privacy" will be
considerably watered down. Rivers of urine will have eroded the
Fourth Amendment, our nation's strictest restraint on the overreaching and strong-arm tendencies of some government police
agents. As aptly stated by Justice Ginsburg and the three other justices
who joined her dissenting opinion: "That [schools] are educating the
young for citizenship is reason for scrupulous protection of Constitu-
tional freedoms of the individual, if we are not to strangle the free
mind at its source and teach youth to discount important principles of
our government as mere platitudes."
The U.S. Government recently allocated another 20 billion dollars
to fight the so-called War on Drugs, yet all we really have to show for
it is a tattered Constitution and the largest prison population in the
history of the world. Fellow Americans have been constructed as "the
enemy" simply because they'd rather have a puff of Cannabis than a
shot of bourbon.
And that is perhaps the greatest tragedy of the Court's ruling. The
decision not only victimizes our children, it makes them the enemy.
Being a public school student is now synonymous with being a
criminal suspect or a prisoner. The values of trust and respect have
been chased from the schoolyards and replaced with baseless suspi-
cion and omnipresent policing. The lesson for America's students as
they stand in line with urine bottles in hand, is that the Fourth
Amendment's guarantee is a broken promise, yesterday's dusty
trophy, worthy only of lip service. The lesson for the rest of us is that
the so-called War on Drugs desperately needs rethinking.
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