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Drug Testing: Background Information

Mandatory drug testing in public schools is a relatively new issue for the law. Introduced during the late 1980s and expanding over the next decade, the practice of analyzing student urine for illegal drugs is carried out in a small but growing percentage of schools nationwide. Students in thousands of individual schools are affected, and more districts have indicated their interest in adopting testing, too. At present, the practice has been ruled constitutional in one form by the U.S. Supreme Court.

School drug-testing grew out of the so-called war on drugs. Prior to the 1980s, citizens were rarely tested for drugs except by law enforcement officers and primarily when there were grounds for suspicion. Exceptions existed in a few areas, notably in the routine testing of college and pro athletes and prison inmates. But along with other sweeping social changes, the drug war introduced the idea of so-called mandatory suspicionless testing in the work- place. After spreading from the public to the private sector, the trend reached public high schools in limited form — in the testing of student athletes — in the late 1980s.

Legally, mandatory suspicionless drug testing has proved controversial both in the workplace and school. The practice raises questions about how to balance a perceived social need for health and safety with privacy concerns. Not surprisingly, in light of its rulings favorable to workplace testing, the U.S. Supreme Court upheld suspicionless student drug testing in 1995. The Court already viewed the privacy rights of public school students as being lower than those generally enjoyed by adult citizens. Now, the majority saw an important social need for schools to combat drug usage, viewing the loss of student privacy as inconsequential.

However, the legal status of student drug-testing is cloudy. In large part, this is due to dramatic changes following the 1995 decision. School districts correctly saw the Supreme Court's decision as a green light, but some took the practice much further. Not merely student athletes but a range of student activities, such as band and choir, began requiring students to pass drug tests as a condition for eligibility. This trend has brought new lawsuits and divergent verdicts from the federal courts. As a result, the Supreme Court is expected to clarify certain limits on school drug testing in 2002.

Important legal milestones include the following:

  • The Supreme Court defined students' reduced Fourth Amendment rights in New Jersey v. T.L.O. (1985), where it ruled that schools do not have to follow the customary requirements of having probable cause or a warrant in order to carry out searches. Instead, school authorities must follow only a simple standard based on "the dictates of reason and common sense."
  • In its first landmark drug-testing ruling, the Supreme Court upheld the suspicionless drug-testing of railroad employees who are involved in accidents in Skinner v. Railway Labor Executives' Ass'n (1989). The court held that the government has a compelling interest in public safety that overrides Fourth Amendment rights of the employees.
  • In a second critical ruling on drug-testing, the Court upheld the suspicionless drug testing of U.S. Customs Service employees in sensitive positions that involve extraordinary safety and national security hazards in National Treasury Employees Union v. Von Raab (1989).
  • The Supreme Court upheld the constitutionality of mandatory suspicionless drug-testing of student athletes in Vernonia v. Acton (1995). Applying its rulings in Skinner and Von Raab, the Court found that the students' Fourth Amendment rights were outweighed by the government's interest in drug-free schools when it approved a school's policy of random suspicionless testing of student athletes. In the wake of its landmark ruling, hundreds of school districts nationwide adopted similar policies.
  • With the expansion of student drug testing beyond athletics, some schools began requiring random drug-testing as a condition for participation in other extracurricular activities. A panel of the Seventh Circuit Court of Appeals upheld the constitutionality of such a school program in Todd v. Rush County Schools (1998), and the Supreme Court refused to hear the case, letting the verdict stand.
  • In contrast, another circuit court disapproved of broad extracurricular drug testing. A panel of the Tenth Circuit Court of Appeals overturned a school drug policy in Earls v. Tecumseh (2001), holding that extracurricular testing went further than what is permitted under Vernonia. With the two circuits in obvious disagreement, the Supreme Court accepted the case for review in 2002.
  • A federal judge in Texas struck down what had been the nation's first school district policy requiring drug testing of all junior high school students in Tannahill v. Lockney School District (2001).

At both the federal and state level, the future of drug-testing policies is in question. In 2001, legal observers began to note a trend in the courts toward rejecting student drug testing as more cases ended in verdicts for plaintiffs who challenged their school policies. Although some viewed this as a shift in public attitudes, it was too early to say definitively what impact the cases would have on this developing area of law.

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