Pubdate: Wed, 03 Apr 2002
Source: Sacramento Bee (CA)
Copyright: 2002 The Sacramento Bee
Contact:  http://www.sacbee.com/
Details: http://www.mapinc.org/media/376
Author: Peter Schrag, Bee Columnist
Bookmark: http://www.mapinc.org/youth.htm (Youth)
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

PRIVACY AND THE PURSUIT OF POT IN POTTAWATOMIE

Nobody much complained when the Tecumseh School Board, formally Independent 
School District No. 92 of Pottawatomie County, Okla., voted to force all 
students in every extracurricular activity, from choir to FFA, the Future 
Farmers of America, to undergo drug tests.

As one parent told the board, "School's a training ground and this is 
something they have to get used to."

Ah, yes.

Nor did anyone notice the irony when Tecumseh Superintendent Tom Wilsie 
signed an exclusive vending machine contract with Coca-Cola. There would be 
more money upfront, he told the board, and that, suggested board member 
Terry O'Rourke, would almost cover the cost of the drug-testing program and 
thus almost totally "eliminate" the cost to students.

Unfortunately, most members of the U.S. Supreme Court didn't notice the 
irony either. In oral arguments in a suit challenging the rule's 
constitutionality two weeks ago, most of the justices seemed blithely 
undisturbed by this form of civics instruction in the land of the free. "No 
one is arrested," said Justice Stephen Breyer. "It's counseling."

The only exception to this near-unanimity appeared to be Lindsay Earls and 
her family, who brought the suit when she was a Tecumseh student. She's now 
a freshman at Dartmouth.

Lindsay Earls seems to have understood more about constitutional privacy 
rights than the illustrious judges or the Justice Department lawyer, who 
saw nothing wrong with mandatory random drug testing, even if it involved 
all students. As Justice Antonin Scalia told her lawyer, the "school 
district was trying to train and raise these young people to be responsible 
adults." It's certainly an original way to teach citizenship.

The high court hasn't yet rendered its decision but from the questions and 
from its decision in another drug case last week -- that one from Oakland 
- -- it's pretty clear which way the court is going to go.

In the Oakland case, the court, reversing an appellate court ruling, held 
8-0 that federal law allowed the eviction of any tenant from public housing 
for drug use by any household member or any guest, even if that drug use 
took place without the tenant's knowledge and in some place removed from 
the premises.

The case was brought by four elderly Oakland Housing Authority residents, 
among them Herman Walker, a partially paralyzed 79-year-old whose caretaker 
possessed cocaine, and Pearlie Rucker, whose mentally disabled daughter was 
arrested on cocaine charges three blocks from their home. The other two had 
teenage grandsons who were arrested smoking marijuana in the project's 
parking lot.

But the fact that the tenants had no apparent knowledge -- or, in the case 
of Walker, who is totally dependent on help, little control of his 
caretaker -- did not trouble the justices. The law, said Chief Justice 
William Rehnquist, drawing himself to his full Pecksniffian heights, is the 
law.

But in fact the inflexibility of the drug-eviction process seems never to 
have been intended by Congress. The law, the U.S. Court of Appeals for the 
9th Circuit held, was ambiguous and, judging by the text of a 1991 Senate 
report, assumed precisely this kind of exception.

Although Congress never wrote an innocent tenant exception into the housing 
statute, the Senate report accompanying revisions declared, "Eviction would 
not be the appropriate course if the tenant had no knowledge of the 
criminal activities of his/her guests or had taken reasonable steps under 
the circumstance to prevent the activity."

In its original regulations, the Department of Housing and Urban 
Development seemed to allow for precisely that flexibility, giving local 
housing authorities "discretion to consider all of the circumstances of the 
case, including the seriousness of the offense, the extent of participation 
by family members, and the effects that the eviction would have on family 
members not involved in the proscribed activity. In appropriate cases, the 
PHA may permit continued occupancy by remaining family members."

But in 1996, the Clinton administration imposed a zero-tolerance policy, 
which, in the words of the lower court, "ties federal funding to increased 
crime-related evictions."

The attempt to protect public housing tenants from the crime and nuisance 
associated with neighbors' drug use and drug dealing -- a major problem in 
some projects -- is totally understandable. It's also understandable that 
the people of Pottawatomie County don't want to send their children to what 
Justice Anthony Kennedy, once a Sacramento liquor lobbyist, called a 
"druggie school."

But there was a time not long ago when infringements on privacy and 
property rights had to be balanced against the evils that any infringement 
on those rights is supposed to reduce. And needless to say, the FFA kids 
and choristers are the least likely to be involved in drugs.

Justice Scalia once rejected the drug testing of customs agents as 
requiring "an excretory function traditionally shielded by great privacy" 
and thus "a search particularly offensive to personal dignity."

But these, of course, are only kids and poor old people, and they're not 
entitled to any such things. 
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MAP posted-by: Jay Bergstrom