Pubdate: Tue, 06 Jan 2004
Source: Fairbanks Daily News-Miner (AK)
Copyright: 2004 Fairbanks Publishing Company, Inc.
Author: Dan Rice, Staff Writer
Bookmark: ( Students - United States)


A federal judge weighing the lawsuit of a North Pole High School
student whose assistant principal had planned to expel him under the
Fairbanks North Star Borough School District's drug and alcohol policy
is considering whether a urinalysis is a valid method for determining
whether a student is under the influence at school.

In a case that prompted the school district to change its drug and
alcohol policy before the start of this school year, U.S. District
Court Judge Ralph Beistline is considering lengthy arguments made by
lawyers for student Anthony Frey, his father and the district.

The Freys sued the district in July, claiming that school staff
violated Anthony's constitutional rights when they ordered him to take
a rapid-eye exam after he attended the last day of school in May with
red eyes and completed paperwork to expel him after his father, Martin
Frey, refused to allow him to take a urine test ordered by an
assistant principal.

Anthony Frey claimed that his eyes were red because he had been up
late studying for final exams, not due to any alcohol or drug use.

The Frey's lawsuit, originally filed in state court but moved to the
federal jurisdiction because of its claims of violations of the U.S.
Constitution, sought both a financial award and to force the district
to make several revisions to its drug and alcohol policy.

One of the changes they are seeking is to prevent school officials
from using a urine test to determine whether a student is intoxicated
at school. When the assistant principal ordered Frey to take a urine
test, the lawyers argued in a court filing, it amounted to an order
for him to submit to an unreasonable search.

Because a urine test can detect a substance taken several days ago,
the analysis does nothing to determine if a subject is currently
intoxicated, they argued.

"There can be no legitimate dispute that the urinalysis requested
could not prove whether Anthony Frey was, or was not, under the
influence of some substance on the morning of May 22 at 7:35 a.m.,"
attorney Don Logan wrote.

"The attempt to suspend Anthony Frey from school, and to impose other
requirements upon him, for failure to obtain the search, for whatever
reason, is constitutionally impermissible."

School district attorney Kim Stone countered that the district's
intent in using the urine test is to prevent a student from being
"under the influence," a much broader term than mere

Stone also argued that the subject of how urinalysis can be used in
schools, as well as most of the other claims asserted by Frey's
lawyers, should not be left up to a judge to determine.

A policy preventing student drug and alcohol use at school is a matter
that should be settled through the public process, specifically by the
school board, and not in the court system, Stone wrote.

The use of urine tests is one of several issues Beistline plans to
issue a written ruling on after he considers the voluminous stack of
briefs filed by attorneys for both sides.

Lawyers for the Freys had initially requested Beistline to issue a
preliminary injunction, essentially a court order that would force the
school district to make several changes.

These requested changes included a ban on disciplining a student for
any actions of their parents, refusing to call the police if a student
doesn't take a drug test, ensuring that penalties for refusing a drug
test don't exceed those for using or possessing drugs at school, and
contacting parents as soon as possible if there's suspicion of a
student using or being under the influence of drugs or alcohol at school.

Beistline denied the request for a preliminary injunction, ruling that
there was no "sufficient imminent harm" to justify an injunction.

The judge, however, ruled that many of the Frey's claims have merit
and invited the attorneys to submit more briefs on the issues.

The Frey's case continues in court despite the school board making
several changes to its drug and alcohol policy in August, including
eliminating the rapid-eye exam and establishing an equal penalty for
refusing to take a substance abuse test and using drugs or alcohol at
school. Establishing an equal penalty was an issue because the
previous policy allowed for a five-day suspension for drug or alcohol
use but a 90-day suspension for refusing a drug and alcohol test.

Attorneys for the school district have argued that the changes made
many of the Frey's points moot, especially considering the suspension
was never imposed. However, the Freys continue to pursue the case,
which also includes a claim seeking monetary damages.
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