Be very afraid of what was said during Tuesday's U.S. Supreme Court hearing on a case in which three Tecumseh, Okla., students challenged a mandatory drug testing program for high-school students participating in extracurricular activities.
Be afraid because statements made by some of the justices suggest that they are prepared to make the sort of results-oriented ruling -- based on ideology, not case law -- that conservatives used to lambaste when liberals made them.
Enter the war on drugs. Exit the U.S. Constitution.
Here's one example quoted in The New York Times: Justice Antonin Scalia asked ACLU attorney Graham Boyd, who opposed the testing program, "So long as you have a bunch of druggies, who are orderly in class, the school can take no action. That's what you want us to rule?"
Yes, that's right, justice. In America, there's this little thing called probable cause. Right now, teachers can ask for drug tests when they suspect a student of drug use. But for the moment, the law has not allowed schools to test all students for no cause.
Be afraid because precedent doesn't matter. In 1995, the Big Bench ruled that it was legal for an Oregon school to require athletes to submit to urine tests because the school had a big drug problem. The reasoning: Athletes were the main offenders, football players were role models, and there were safety issues with football players in heavy gear charging other players while high on drugs.
That was a narrow ruling. Now, some justices want to make members of Future Farmers of America and the band tuba player into role models. And they don't care if a school district doesn't have much of a drug problem. (Of 505 Tecumseh students tested, three were positive.)
Worse, as The Washington Times reported, Deputy Solicitor General Paul D. Clement suggested that public schools could test entire student bodies. Forget the Fourth Amendment protections against unreasonable searches.
Be afraid because most justices apparently support drug testing for
students who are less likely to be drug users than, as Justice Ruth Bader Ginsburg said, "students who don't do anything after school." Students who refuse to take the test or flunk it twice would be banned from interscholastic clubs.
Be afraid because the Bush administration and some justices want the government to be Big Father, and pre-empt parental choice. Parents can give their kids drug tests if they suspect their kids are using drugs.
There are parents who have argued that they want the school to test their kids. They shouldn't expect schools to do their dirty work for them. And they should want to keep the government out of the bathroom.
Justice Anthony M. Kennedy suggested that he was helping parents when he gave an analogy of two schools, one with drug testing and one without. He then told the ACLU's Boyd that no parents would send their children to "the druggie school" -- "except perhaps your client."
I've received letters from readers who support 20-year sentences for low-level, first-time nonviolent drug offenders because they think those sentences will protect their kids. It doesn't occur to these folks that their kids could be drug offenders. According to the Bush administration's own brief, 54 percent of high-school seniors have used illegal drugs.
Be afraid because when schools give students a choice between clubs or drugs, marginal kids will choose drugs. "It's those kids who need those activities the most (who) are going to be the easiest to deter," said Daniel Abrahamson of the Drug Policy Alliance, who wrote a brief against the Tecumseh School Board for the American Academy of Pediatrics.
The brief noted, "A strong record of extracurricular involvement is all but essential to securing admission to a competitive undergraduate college."
Because the justices weren't focusing overly on precedent, let me pose a moral question: Would the justices support a policy labeled, "Smoke a joint in high school, work at McDonald's for the rest of your life?"