Pubdate: Sun, 11 Feb 2007
Source: Dispatch, The (IL)
Copyright: 2007 Moline Dispatch Publishing Company, L.L.C.
Contact:  http://www.qconline.com/
Details: http://www.mapinc.org/media/1306
Author: John Donald O'Shea
Note: John Donald O'Shea of Moline is a retired circuit court  judge.
Bookmark: http://www.mapinc.org/testing.htm (Drug Test)
Bookmark: http://www.mapinc.org/youth.htm (Youth)

SHOULD SCHOOLS DRUG TEST? LAWYER-FATHER SAYS, 'YES'

To Drug Test, or Not to Drug Test? That is the  Question. -- 
"Hamlet," Shakespeare (more or less)

Few Americans who are not lawyers will ever read the  full opinion of 
a case decided by the United States  Supreme Court. The Rockridge 
school district is  considering establishing a policy that would 
require  some students to be tested for illegal drugs. A number 
citizens claim such a policy will violate the "privacy  rights" of 
the students tested.

The leading case on the issue is the Supreme Court 2002  decision in 
Board of Education v. Earls, 536 U.S. 822.  I intend to set forth a 
number of passages from the  opinion. I believe that it is good for 
citizens to see  for themselves the depth of reasoning our court is 
capable of bringing to an issue.

In 1998, the school district of Tecumseh, Okla.,  adopted a drug 
testing policy, which required all  students to consent to drug 
testing prior to  participating in any extracurricular activity. 
Additionally students were required to submit to random  drug testing 
while participating in that activity, and  to be further tested at 
any time upon reasonable  suspicion.

Not surprisingly, two students sued the School  District, challenging 
the policy. They alleged that the  policy violated their Fourth 
Amendment rights, and  sought to have it struck down as 
"unconstitutional."  They also argued that the district failed to 
identify a  "special need" for testing students who participate in 
extracurricular activities, and that the "Drug Testing  Policy 
neither addressed a proven problem nor promised  to bring any benefit 
to students or the school."

The Supreme Court, in Earls, disagreed and held that  the School's 
Drug Policy was "reasonable" and  constitutional. "Because this 
Policy reasonably serves  the School District's important interest in 
detecting  and preventing drug use among its students, we hold  that 
it is constitutional."

The high court's reasoning to me appears unassailable.  I reach that 
conclusion both as a lawyer and a parent.  Whether a policy is 
reasonable is always a question of  fact. Whether a course of action 
or a policy is  reasonable always involves a balancing of the 
competing  facts and interests.

"It is true that we generally determine the  reasonableness of a 
search by balancing the nature of  the intrusion on the individual's 
privacy against the  promotion of legitimate governmental interests."

Two excerpts from the court's opinion clearly show the  "facts" or 
"governmental interests" that concerned the  court. First, the court 
stated "Drug abuse is one of  the most serious problems confronting 
our society  today." In factual support of that statement, the court 
further note

"The number of 12th graders using any illicit drug  increased from 
48.4 percent in 1995 to 53.9 percent in  2001. The number of 12th 
graders reporting they had  used marijuana jumped from 41.7 percent 
to 49.0 percent  during that same period."

The court, however, was entirely mindful of the fact  that the Fourth 
Amendment's guarantees did in fact  apply to children in school. "The 
Fourth Amendment to  the United States Constitution protects 'the 
right of  the people to be secure in their persons, houses,  papers, 
and effects, against unreasonable searches and  seizures.' Searches 
by public school officials such as  the collection of urine samples, 
implicate Fourth  Amendment interests."

But the court distinguished between the amendment's  application in 
the "criminal context," and its  application in the "school context."

"In the criminal context, reasonableness usually  requires a showing 
of probable cause. The  probable-cause standard, however, "is 
peculiarly  related to criminal investigations" and may be unsuited 
to determining the reasonableness of administrative  searches where 
the "Government seeks to prevent the  development of hazardous conditions."

And the court explained the distinction.

"In certain limited circumstances, the Government's  need to discover 
such latent or hidden conditions, or  to prevent their development, 
is sufficiently  compelling to justify the intrusion on privacy 
entailed by conducting such searches without any measure 
of  individualized suspicion."

The court then proceeded to analyze the privacy  interest involved in 
the context of the school  environment. "The subjects of the Policy 
are (1)  children, who (2) have been committed to the temporary 
custody of the State as schoolmaster."

The court then stated: "The most significant element in  this case is 
. that the Policy was undertaken in  furtherance of the government's 
responsibilities, under  a public school system, as guardian and 
tutor of  children entrusted to its care."

It then elaborated "When the government acts as  guardian and tutor 
the relevant question is whether the  search is one that a reasonable 
guardian and tutor  might undertake." Then the Court went to the 
heart of  the issue.

"The need to prevent and deter the substantial harm  of childhood 
drug use provides the necessary immediacy  for a school testing 
policy. Indeed, it would make  little sense to require a school 
district to wait for a  substantial portion of its students to begin 
using  drugs before it was allowed to institute a drug 
testing  program designed to deter drug use."

Some years ago, while I was still on the bench, I  stopped to have 
lunch in downtown Rock Island. A widely  respected attorney sat and 
visited. I told him I had  just sent a probationer to prison after a 
number of  unsuccessful attempts at drug treatment. I recall my 
friend telling me that once his clients became hooked  on crack 
cocaine, "it became their God." I had by that  time reached a similar 
conclusion. He put it more  eloquently.

Three additional arguments are generally advanced in  opposition to 
testing: (1) keeping kids drug free is a  job for the parents; (2) 
there is a danger of a "false  positives;" and (3) the expenditure of 
$35 per test is  a waste of funds that could better be utilized  elsewhere.

Some years ago, when Alleman was about to begin its  program of drug 
testing, I asked one of the dads what  he thought. He replied, "It's 
a tool that's not  available to me. I'd rather know sooner rather 
than later." I find that logic compelling. When kids spend  more 
waking hours at school than at home, the argument  that "it's a job 
solely for the parents" is less than  convincing.

The argument about "false positives" is also  unpersuasive. My 
sources tell me that "false positives"  from hair samples are 
virtually nonexistent. Dave Van  Landegen, the head of Rock Island 
County probation,  advises that his office, which has used 
"preliminary" urine drops for years, solves that problem 
by  immediately having more sophisticated testing done  whenever the 
person dropping contends that the  "preliminary test" is faulty.

Nor does the $35 cost argument wash. If the cost per  test is indeed 
$35, then 100 tests cost $3,500. If just  one child becomes drug 
addicted, the cost to send him  for in-patient substance abuse 
treatment is $515 per  day at a facility in Rockford. When it is 
understood  that the average stay is 30 days, the cost of treating 
just one child is in excess of $15,000. When a  delinquent child with 
a drug addiction is sent to St.  Charles, taxpayers pay $153 per day.

 From my point of view, that of a parent and a lawyer,  it makes 
sense to test. My dad once told me, "If you  never start smoking, 
you'll never have to quit." If  just one child doesn't start using 
drugs, the school  renders a great service to that family. In 
this  balancing of "the right of privacy,"versus "the health of a 
child," I would opt for the  latter.

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John Donald O'Shea of Moline is a retired circuit court  judge.
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MAP posted-by: Beth Wehrman