by Richard Cusick
The superintendent of schools in Salem, MA, wants to implement random drug testing, a decision he made after discovering his own son was addicted to the painkiller OxyContin. The superintendent has created a task force to explore the issue and plans to submit a proposal to the city's school committee before he retires in June. If the schools in his district decide to randomly drug-test student athletes and those involved in extracurricular activities—which is allowed by federal law—it will be the first time a district has drug-tested students in Massachusetts.
The Massachusetts ACLU has vowed to fight back, starting in the State Supreme Court.
"The American Civil Liberties Union is committed to keeping drug testing in schools as contained as possible," says ACLU public education coordinator Anjuli Verma. "We think not only is it a violation of privacy rights from a legal standpoint, we also think it's bad policy."
Since 1995, the US Supreme Court has allowed random student drug testing on a limited basis, while acknowledging that even limited drug testing can still be unconstitutional in individual states. That creates an opportunity for the ACLU. "We have tried to file lawsuits in states where the state constitution offers students more privacy rights than the federal constitution," Verma explains, outlining a strategy of effective resistance. "We have to tread carefully, because any case we lose, we make bad law."
Meanwhile, published reports in the Boston Globe have suggested that Salem School Superintendent Herbert Levine is so upset about the experiences of his son that he just might try to drug-test the whole damn school. If that happens, it will represent the first time in US history that a school district has sought to drug-test the entire student body.
According to Sarah Wunsch of the Massachusetts ACLU, "If they were to go and try to test everybody, then there's two questions: Does that violate the Fourth Amendment of the US Constitution? And does that violate the State Constitution of Massachusetts?'"
The US Supreme Court has visited this issue twice before. In 1995, the court found that random drug testing without cause was constitutional for middle- and high-school student athletes, and in 2002 the court included students involved in any after-school activities. On both occasions, the court expanded a school's ability to test its students, but it also stopped short of saying that the mandatory random testing of an entire student body was constitutional.
The ACLU fought all of these encroachments on students' freedoms by arguing that the urine test—the gold standard of drug testing—was inherently invasive. In 1995, the court found that student athletes who take communal showers together and students in competitive extracurricular activities who sometimes share hotel rooms obviously have "a diminished expectation of privacy," and it gave the gold standard a green light for these two groups only. Clearly the whiz quiz, with all its attendant flailing genitalia, was threatening to limit the scope of student drug testing, and so a new, less invasive test technology was required.
In 2003, an article in the International Journal of Drug Testing touted the saliva test—a very flawed testing matrix as far as pot smokers are concerned—as the noninvasive alternative to the urine test. In "To Pee or Not to Pee: School Drug Testing in an Era of Oral Fluid Analysis," the unbridled drug warrior Dr. George Yocoubian argued that the time had come to implement "a random drug testing program for all students [emphasis his], regardless of their involvement in extracurricular activities....
"The ACLU's argument, that drug testing is inherently invasive is specious with the advent of the virtually noninvasive Oral Fluid testing," Yocoubian averred. "Unless opponents of school-based drug testing are prepared to argue that the collection of any biological specimen is inherently intrusive, OF analysis should provide an acceptable alternative to urinalysis."
In April 2004, the Bush administration proposed new guidelines and standards for hair, sweat and saliva testing for federal employees. These guidelines will also be used throughout the private sector, as well as in school districts. In January, the president proposed a 2006 Drug War budget that decreased the federal role in almost all state and local drug-control activities, with several glaring exceptions: an increase in funding for his own "Access to Recovery" voucher program, because it includes faith-based rehabilitation initiatives, and an increase in federal funds for student drug testing, from $10 million last year to $25 million in 2005. (The program began with a mere $3 million in seed money in 2004.)
To win a war, you must understand your opponent's strategy. The Bush administration's Drug War strategy seems to include plans to drug-test every high-school student in this country. Justice Department attorneys, waiting for a test case to fast-track to the top, are no doubt hoping for a new witch hunt in Salem. A careful reading of the political tea leaves shows that, before he completes his second term, George W. Bush will take randomized, suspicionless drug testing of an entire student body before the US Supreme Court. And given the climate of the current court, it's possible he just might win.