In 1989 the U.S. Supreme Court upheld a drug-test requirement for anyone seeking a Customs Service position in which he would have to carry a gun, handle classified material or participate in drug interdiction. Justice Antonin Scalia dissented, calling the testing program an "immolation of privacy and human dignity in symbolic opposition to drug use."
Scalia noted that the Customs Service policy required people to perform "an excretory function traditionally shielded by great privacy" while a monitor stood by, listening for "the normal sounds," after which "the excretion so produced (would) be turned over to the Government for chemical analysis." He deemed this "a type of search particularly destructive of privacy and offensive to personal dignity."
Six years later, Scalia considered a case involving much the same procedure, this time imposed on randomly selected public school athletes. Writing for the majority, he said "the privacy interests compromised by the process of obtaining the urine sample are in our view negligible."
Not surprisingly, given its estimate of the stakes involved, the Court found that random drug testing of student athletes did not violate the Fourth Amendment's prohibition of "unreasonable searches and seizures." Now it seems poised to allow random testing of students who participate in any sort of competitive extracurricular activity, including debate, band, choir, cooking and Future Farmers of America.
The drug-testing program at Oklahoma's Tecumseh High School, which a federal appeals court overturned last year, treats those activities the same as football, basketball and wrestling. And under the logic the Court has been urged to accept in this case, public schools could force all students to demonstrate the purity of their bodily fluids by peeing into cups on demand.
"If your argument is good for this case," Justice David Souter told the Tecumseh Public School District's lawyer during oral arguments the other day, "then your argument is a fortiori good for testing everyone in school." Siding with the school district on behalf of the Bush administration, Deputy Solicitor General Paul Clement agreed, arguing that random testing of all students would be constitutional.
Scalia, who considered a much more limited testing program at the Customs Service an affront to privacy and human dignity, did not seem troubled by that suggestion. "What I miss in your argument," Scalia told an attorney challenging Tecumseh's drug tests, "is any recognition that you're dealing with minors."
It's unlikely that Scalia thinks the average teenager is less easily embarrassed than the average customs agent. Rather, he was referring to the authority that schools traditionally have over students. The school district, he said, "is trying to train and raise these young people to be responsible adults."
While teenagers in school are properly subject to special restrictions, that does not mean they have no rights, and it's hard to see how suspicionless searches prepare them to be responsible adults (or self-respecting citizens). In any case, it is emphatically not the job of government to "raise these young people." That is the job of parents, many of whom, like the parents who are challenging Tecumseh's policy, object to the seizure of their children and the search of their urine.
The violation of privacy and the usurpation of parental authority are especially troubling because there is scant evidence of a serious drug problem at Tecumseh High School. Before drug testing began in 1998, there were little more than a few scattered suspicions. Since then, less than 1 percent of the students subject to urinalysis have tested positive. Even if drug abuse were rampant at Tecumseh, there is no reason to believe that testing chess players and cheerleaders would be an effective response.
The Bush administration argues that a school should not have to demonstrate a problem before implementing random testing. "The government has a compelling interest in preventing the spread of this 'pervasive social problem,' " says Solicitor General Theodore Olson.
But the abuse of illegal drugs can be considered "pervasive" only if it's defined very loosely. Half of high school seniors have tried marijuana, for instance, but only a small percentage of them get into serious trouble as a result.
This is not because there are no hazards involved but because most teenagers who smoke pot (by far the most popular illegal drug) do so experimentally or occasionally. The unremarkable consequences of such limited use are apparent from the fact that schools generally cannot identify drug users without looking at their urine.