ACLU Op-Ed Against Student Drug Testing

Just Say No to Random Drug Testing”In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution.”

— Justice Abe Fortas, Tinker v. Des Moines (1969)

By David Rocah

Ridgefield Park, like at least nine other school districts in New Jersey, recently decided that it would not permit its junior and senior high school students to participate in interscholastic sports unless they agreed to have their urine tested for traces of certain illicit drugs at random intervals during the athletic season. Because we believe that this intrusive and demeaning search of students’ bodily fluids violates fundamental constitutional principles, the American Civil Liberties Union of New Jersey is representing a student and his parents in a legal challenge to the Ridgefield Park program.

One of the fundamental features of our legal system is that we are presumed innocent of any wrongdoing unless and until the government proves otherwise. Random drug testing of student athletes turns this presumption on its head, telling students that we assume they are using drugs until they prove to the contrary with a urine sample. The overwhelming majority of student athletes in Ridgefield Park, and throughout New Jersey, are law abiding citizens, and there is no basis in law or logic to presume otherwise or to treat them worse than accused criminals.

An equally cherished constitutional command is the rule that government officials may not search us without an adequate reason. Thus, for example, even though we know there is a drug problem in our society, we do not allow the police to randomly stop us on the street to see if we are carrying drugs.

The constitutional prohibition against “unreasonable” searches also embodies the principle that merely belonging to a certain group is not a sufficient reason for a search, even if many members of that group are suspected of illegal activity. Thus, for example, even if it were true that most men with long hair were drug users, the police would not be free to stop all long haired men and search them for drugs.

Unfortunately, many school officials concerned about drug use by students seem willing to ignore these principles. There is no doubt that the concern is well placed, and it is one that we share. Drug use is a scourge on our society, exacting a terrible toll in lost lives. And no one is arguing that we should tolerate students’ use of illegal drugs. But zero tolerance for drugs should not lead us to have zero tolerance for constitutional limits. Sadly, that is exactly what is happening.

Parents and school officials currently have a wide variety of tools at their disposal to address drug use by students. Educating students about the dangers of drug use can be highly effective. A recent study by the Parent’s Resource Institute for Drug Education shows that students who are warned about drugs by their parents use them 30 percent less often than those who are not, and students who said their parents set “clear rules” regarding drugs used them 57 percent less than those whose parents did not.

In addition, school officials currently have the power to require any student whom they reasonably suspect of using drugs to submit to a drug test. Indeed, if the affidavits submitted in court by the Ridgefield Park School Board are to be believed, school officials there have been grossly irresponsible in failing to act when they had reason to suspect particular students were using drugs. Not only did they not conduct drug tests, there is no indication that they even informed the parents of their suspicions.

Acting on the basis of individual suspicion ensures both that hundreds of innocent children are not subjected to a degrading search, and demonstrating that school officials care about all students who use drugs, not just student athletes. The Board also could have implemented a truly voluntary drug testing program, rather than coercing parents to consent by denying their children the opportunity to participate in interscholastic athletics. Had the Board done so, it is likely that no one would have objected, and the ACLU could not and would not have challenged it.

Given these tools, which, when employed vigorously can be an effective and constitutional means of dealing with drug use by the entire student body, why are school districts resorting to random drug testing of athletes? Because they improperly read a 1995 U.S. Supreme Court decision as giving them carte blanche. In a case involving a school district in Vernonia, Oregon, the Court decided that the district could constitutionally require student athletes to submit to random drug testing where officials testified that they were no longer able to maintain discipline in the school system because of a culture of pervasive drug use and disrespect for authority, and where student athletes were the leaders of the drug culture.

Are the parents and administrators in Ridgefield Park prepared to admit that they cannot maintain order and discipline in their schools? There is no evidence of this, and we would be surprised if it were so. Ridgefield Park has a fine school system, which sent 73 percent of its graduates to college last year.

Are student athletes leaders of the drug culture? Although the Ridgefield Park School Board’s court papers scandalously attempted to portray its student athletes as a pack of drug addled alcoholics, these same athletes won state championships in football for the past two years. Nationally, student athletes have been found to have higher academic achievement and fewer disciplinary problems than non-athletes, due in large part to the tremendous discipline required to balance a full academic program and the time demanded by practice and competition schedules. Singling out athletes in New Jersey because of a problem in Vernonia, Oregon is both ridiculous and unfair.

School officials argue that random drug testing will deter drug use. But students should not use drugs because they are harmful and illegal, not because they might get caught. Moreover, random drug testing simply encourages students to defer drug use until after the athletic season is completed, rather than completely refraining from drug use.

School officials also argue that participating in interscholastic athletics is a privilege, not a right, and that they may therefore impose any conditions on the exercise of that privilege that they see fit. This ignores the well established constitutional doctrine that the government may not condition the receipt of a governmental benefit on the waiver of constitutional rights. Just as a school could not condition participation in interscholastic athletics on students giving up their right to free speech, they also may not condition participation on students giving up their right to be free from unreasonable searches.

Some also argue that students who aren’t doing anything wrong have nothing to fear. This ignores the fact that what they fear is not getting caught, but the loss of dignity and trust that the drug test represents. And we should all be afraid of government officials who believe that a righteous cause warrants setting aside bedrock constitutional protections. The lesson that our schools should be teaching is respect for the Constitution and for students’ dignity and privacy, not a willingness to treat cherished constitutional principles as mere platitudes.

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David Rocah is a staff attorney with the ACLU of New Jersey.