Saturday, October 19, 2013
The title of this post comes from this local article describing an ongoing legal dispute between the ACLU and a local school over the school's suspicionless drug testing policy. According to the article, "The district's drug policy requires middle and high school students to give an initial urine sample when joining any club or sport, or when they apply for a parking pass needed to drive themselves to school. In addition to the initial drug test, these students are also randomly tested." In this case, the ACLU challenged the policy as a violation of the Fourth Amendment after the school told a seventh grader that she could not participate in the school's scrapbooking club because she had refused to submit a urine sample.
Here's the article:
Alexis and Meghan Kiederer and their parents, Glenn and Kathy Kiederer of Milford, are represented by the American Civil Liberties Union of Pennsylvania in a case that charges that the district's drug testing policy violates students' Fourth Amendment right against unreasonable searches and seizures.
The lawsuit originated when, at age 12 and in seventh grade, Alexis Kiederer wanted to join scrapbook club but could not unless she provided a urine sample. She refused and was barred from joining the club.
“Just because you don't have anything to hide doesn't mean you should give up your rights,” said Alexis Kiederer, now 17.
Meghan Kiederer, 15, recently explained the Fourth Amendment to a school friend.
“He said, 'I didn't even know I had that right.' All my friends think once they step on school property, all their rights are taken from them. That's not true.”
The district's drug policy requires middle and high school students to give an initial urine sample when joining any club or sport, or when they apply for a parking pass needed to drive themselves to school. In addition to the initial drug test, these students are also randomly tested.
That means testing affects between 65-70 percent of students in junior high and above. The district is not allowed to test all students for drugs.
“You can't test everyone because it is an invasion of privacy,” said ACLU attorney MaryCatherine Roper said. “The Supreme Court says drug testing is an invasion of privacy. You have to have a reason for it.”
The ACLU argues the school cannot show that students in extracurricular activities are more likely to use drugs, and therefore, they are improperly singled out.
The Kiederers are concerned about drugs, but this suit is not about drugs, it is about civil rights.
“Why are you testing the good kids?” Glenn Kiederer said. “When you ask a child to give up their rights at 12, how do they know to defend them when they are 18?”
The family has received quiet support from school district employees whom they say are afraid to speak out and jeopardize their jobs.
During the final day of testimony Thursday, school board member Sue Casey told the court that she originally voted against the drug policy in 1996. At the time, her daughter brought marijuana home from school to show her mother how easy it was to get.
“There was a drug problem, but I did not think it was up to the school to solve it,” Casey said.
But when the policy came up for review in 2006, Casey voted “wholeheartedly” to support it because the policy seemed to be working she said. The policy helps students stand up to peer pressure by making it easier to reject drugs. They can always say no on Friday night because on Monday they might be tested, Casey said.
I generally have a problem with suspicionless searches in any context, including in public schools. The Fourth Amendment requires a government search to be reasonable, which generally requires a warrant. However, the warrant requirement is waived in special circumstances, and the Supreme Court has ruled that public school environment provides such circumstances. In the public school, the Court balances the student's privacy interests against the nature of the intrusion.
In Pottawatomie City v. Lindsay Earls, 536 U.S. 822 (2002), the Supreme Court ruled that a school's suspicionless drug testing policy for "competitive extracurricular activities" did not violate students' Fourth Amendment right to be free from unreasonable searches and seizures. As the dissent noted, the majority ruling was an extension of an earlier case, Veronia School District v. Acton, 515 U.S. 646 (1995), in which the Court upheld a school's random drug testing policy of students participating in extracurricular athletics who school officials had observed "an almost three-fold increase in classroom disruptions and disciplinary reports along with the staff's direct observations of students using drugs or glamorizing drug and alcohol use led the administration to the inescapable conclusion that the rebellion was being fueled by alcohol and rug abuse as well as the student's misperceptions about the drug culture." No such showing was made in Pottawatomie (police found "marijuana cigarettes near the school parking lot" and they "once found drug paraphernalia in car" owned by a student who participated in extracurricular activities) (emphasis added). The ruling is certainly dubious. And, one federal court recently held that suspicionless drug testing policies in colleges violate the Fourth Amendment.
Regardless, the drug testing policy challenged by the ACLU is not limited to competitive extracurricular activities (unless I misunderstand the intensity with which scrapbook clubs are devoted to their very serious tasks), and the article does not identify a need for the drug testing program.
While the school undoubtedly (hopefully?) has at least some principled basis for the policy, the article observes only the questionable claims of a school board member whose support for the policy comes from the do-goodery of her daughter; the school board member's daughter ostensibly bought marijuana (broke the law) and brought it home to draw her mother's attention to a problem she had misperceived.
Random drug policies are not constitutionally prohibited, and these policies appear to sufficiently meet the needs of the school. As the school board member reportedly observed, "The policy helps students stand up to peer pressure by making it easier to reject drugs. They can always say no on Friday night because on Monday they might be tested[.]" Indeed, the effectiveness of drug testing policies likely comes from the randomness of the search.
Finally, I'm not convinced that such attempts are wise public policy. Rigid rules that prevent otherwise good students from participating in school activities because of moderate (or even a singular instance of) drug use seem to foreclose important opportunities for schools to positively impact students--to provide positive role models and substantive reasons to forego such behavior. It seems more retributive than utilitarian, and might actually distance students from impactful experiences.
CRL&P related posts:
- Women allege forcible strip searches violated their civil rights
- Third Circuit finds middle schoolers’ “I ♥ boobies” bracelets protected by First Amendment.