Liberals and conservatives should be outraged at last week's U.S. Supreme Court ruling in favor of an Oklahoma school district's mandatory drug testing policy for students involved in extracurricular activities. That 5-to-4 decision, written by Justice Clarence Thomas, was an assault on parental rights.
Since drugs were involved, the justices felt free to indulge in judicial activism -- something conservatives such as Thomas are supposed to abhor. There is more anti-drug rhetoric than law in what Thomas wrote.
While hearing arguments on the case, Justice Anthony Kennedy scolded ACLU attorney Graham Boyd, who represented students and parents who objected to the Tecumseh school district policy. Kennedy said that mandatory drug testing should help parents keep their kids out of "the druggie school" -- and no parent would pick such a school "except perhaps your client." Oooph.
Lori Earls -- a medical technician and parent of plaintiff Lindsay Earls -- believes her daughter does not do drugs and does not condone student drug use. She also understands the Constitution (better than Kennedy) and doesn't believe the government should search people without due cause.
She added, "We just believed that they stepped into a realm that took parents' rights away. They took away the parents' job in the home. They put the parents in the position of 'need to know'" -- when it should be the schools that operate on a need-to-know basis.
A little background: In 1995, the Big Bench ruled that an Oregon school could require school athletes to submit to random drug testing. The court explained that the school had a pervasive drug problem, and as athletes were both role models and known offenders, drug use "increased the risk of sports-related injury."
The Tecumseh school district expanded that policy by requiring all students in extracurricular activities to submit to random drug testing. Since students can join or not join clubs, the test isn't mandatory for all students. A positive test reading would require a student to submit to anti-drug counseling. Failure to submit to counseling, three positive tests or a refusal to pee in a cup could lead to suspension from the club or activity.
Attorney Judy Appel of the Drug Policy Alliance's Oakland office noted that the new decision basically threw out the 1995 ruling's carefully crafted criteria for allowing searches without suspicions. "They're taking the role of in loco parentis very seriously," Appel noted, thus making the school a "co-parent."
Appel added, "I read the Thomas decision (as) to indicate a willingness to expand drug testing for all students." She's not stretching. Not when Thomas quotes a ruling that equates schools with children's guardians. Not when Thomas rejects the need for there to be a pervasive drug problem, as he did.
What about parents who object to having their kids drug tested in order to play chess or join Future Farmers of America? "The answer is that your child cannot participate in extracurricular activities," answered Edwin Darden of the National School Board Association, which supported Tecumseh. "It's not negotiable."
So parents have no say in the matter.
This makes no sense. Before, parents were free to drug test their children, if they chose. Now the highest court in the land says that schools have a pre-eminent role in those personal decisions, and parents who want their kids to participate in important extra-curricular activities can't, well, just say no.
Lori Earls told me that the drug-testing policy came about after a mother found her athlete son and friends doing drugs in her home. The mother complained to the school board that the school had to do something.
"She didn't have to address it," Earls noted. "The school had to do something." In that, the policy encourages parents to abrogate their responsibilities.
Tecumseh Assistant Superintendent Danny Jacobs denied that the athlete's mom prompted the policy. "The school board was looking into this policy and they asked me to review it, and it was not based on that one individual's situation, as you described," he said.
The justices and school boards may not see it this way, Lori Earls noted, but the Thomas decision greatly expands a school's "obligation."
If schools can decide to test students without due cause and over the objection of parents, what's to stop the schools from deciding how families deal with their children's drug problems?
Alas, not the Supreme Court.