On June 27, 2002, the U.S. Supreme Court upheld as constitutional a school-based drug testing program required for participation in any extracurricular activity. The ruling in Board of Ed. of Independent School District No. 92 of Pottawatomie County v. Earls came seven years after the Court had upheld school-based drug testing for students involved in extracurricular sports (Vernonia School District v. Acton). In Earls, the Court held that the random drug testing policy instituted by Tecumseh (Oklahoma) School District, which required all middle and high school students to submit to a urinalysis if they wanted to participate in extracurricular activities, was lawful as a means of achieving the school district’s goal of preventing and deterring drug use. The Court used a balancing test established in Vernonia and, earlier, in TLO v. New Jersey to determine that this policy was not overly intrusive.
Lindsay Earls and Daniel James, both 16 at the time, and Lindsay’s sister, Lacey, attended Tecumseh High and were tested in 1999 because they were involved in extracurricular activities. Lindsay was in the school choir and marching band as well as on the school’s Academic Team and in the National Honor Society. Daniel sought to be on the Academic Team as well. The families filed suit, asserting that the policy was a violation of the students’ Fourth Amendment right to privacy. In particular, Lindsay Earls was disturbed that a monitor would stand outside the bathroom, listening while students urinated. She was also concerned that the Academic Team, band, and choir were different from sports or other clubs in that they were part of the school’s curriculum and helped fulfill the district’s fine arts requirement. Students who refused to submit a sample would receive no credit in those courses.
Once students provided the urine sample, results were released to appropriate school employees but not to law enforcement. If a student tested positive, he or she could agree to enroll in counseling within five days and would then be allowed to continue participating in extracurricular activities as long as the student also agreed to submit to another drug test in two weeks. Students were barred from participating in any activities if they did not agree to those conditions. If the second test was positive, the student was suspended from participation in extracurricular activities for two weeks and had to submit to monthly drug tests as well as complete 14 hours of substance abuse counseling. A third positive test resulted in suspension from all extracurricular activities for the remainder of the school year or for 88 days, depending which was longer.
Oral arguments in the case were very heated. Much debate ensued over whether the drug testing policy was appropriate for students involved in all extracurricular activity, as previously the Vernonia decision has considered testing constitutional only when some type of safety concern was involved. The petitioners asserted there was a safety threat, bringing up the silly examples of drug-using band members with heavy equipment. Graham Boyd, the American Civil Liberties Union (ACLU) attorney representing the Earls and James, argued there was no safety threat for students in choir or band. Boyd also asserted that the policy was enacted with no evidence of an actual drug problem in the school; in fact, national data showed that teen drug use was on the decline. Further, discussion focused on whether it was logical to test students who were involved in extracurricular activities when data repeatedly showed that such individuals were the least likely to be using drugs. The Supreme Court Justices also disagreed about the intrusiveness of drug testing. Justice Anthony Kennedy, for example, maintained that drug testing was no more intrusive than requiring students to wear school uniforms.
The Supreme Court eventually ruled 5-4 in support of Tecumseh’s drug testing policy. In doing so, the Justices viewed drug testing as an administrative search. As such, it need not be based on probable cause or even reasonable suspicion. Further, the Court held that students who elect to participate in extracurricular activities already have a reduced expectation of privacy. The Court did caution the school to ensure that the results were shared only with appropriate school personnel.
As in the Vernonia case, the Court held that drug testing programs can be a deterrent to student drug use. The Justices generally believed drug testing helps students reject peer pressure–although the data seem to tell another story. A 2003 survey involving 76,000 students across the United States found that rates of drug use did not differ significantly between districts with drug testing programs and those without such programs.
Justices David Souter, John Paul Stevens, and Sandra Day O’Connor dissented from the 2002 ruling, as they did in Vernonia. Souter was most bothered by the fact that not all of the extracurricular activities were voluntary. Justice Ruth Bader Ginsburg was concerned that the court had backtracked on its decision in Vernonia, as the district could provide no specific justification for the policy or any safety threat. She also expressed concern that the decision could deter students from becoming involved in extracurricular activities.
After the decision in 2002, the George W. Bush administration expressed support for greater use of school-based drug testing. Drug czar John Walters repeatedly called such a policy a deterrent, and the Bush administration even made available grant monies for districts wishing to implement drug testing programs. Estimates are that between 18% and 20% of school districts have implemented some type of drug testing program, most often for athletes.
In addition to the concerns noted previously, critics of school-based drug testing note that it is quite expensive to implement. The tests that school districts use are quite vulnerable to cheating; at the same time, they are often not robust enough to provide accurate results. Further, critics assert that these programs assume students to be deviant, a stance that may undermine the trust between educators and students.
- Finley, L., & Finley, P. (2004). Piss off! How drug testing and other privacy violations are alienating America’s youth. Monroe, ME: Common Courage.
- Hyman, I., & Snook, P. (1999). Dangerous schools. San Francisco, CA: Jossey-Bass.
- Kern, J., Gunja, F., Cox, A., Rosenbaum, M., Appel, J., & Verma, A. (2006). Making sense of student drug testing: Why educators are saying no. Retrieved from http://www.drugpolicy.org/docUploads/drug_testing_booklet.pdf