ACLU Brings First Federal Challenge to Drug Testing of Students in Academic Courses

FOR IMMEDIATE RELEASE
Wednesday, August 18, 1999

OKLAHOMA CITY, OK — The American Civil Liberties Union filed a federal lawsuit today on behalf of two high school juniors who are fighting a policy requiring them to take a urine test for certain academic courses.

The lawsuit, filed against officials the Tecumseh Board of Education and Public School District in Pottawatomie County, is the first federal challenge to a drug and alcohol testing requirement for students in academic courses. The ACLU is asking the court to ban the practice, saying that it violates the students’ constitutional right to be free from unreasonable searches and seizures.

At issue is a policy that purportedly requires a urine test of all students in grades 7-12 who sign up for non-athletic extracurricular activities. But some of those activities — Academic Team, Marching Band and Choir — are linked to the academic curriculum, and a refusal to take the drug test means no credit for the course and no admission to other activities.

For Lindsay Earls and Daniel James, both 16-year-old juniors at Tecumseh High School, that means they are shut out of the demanding courses and activities that now make up their school day — and that they had planned to include on their college applications.

“First, schools wanted to test student athletes, then it was students in extracurricular activities, and now it’s students competing in quiz bowls and performing in choir — where does it end?” said Graham Boyd, Director of the ACLU’s Drug Policy Litigation Project and lead counsel for the students.

“The district’s drug testing policy is more about symbolism than substance,” he added. “Tecumseh officials initiated urine testing without any evidence of a drug problem at the school and at a time when government reports show that teen drug use is on the decline nationally.”

Experts in the fields of medicine and social science agree that policies like Tecumseh’s are the wrong approach to preventing drug use. In a 1996 position statement opposing suspicionless drug testing, the American Academy of Pediatrics said that “students and student athletes should not be singled out for involuntary screening for drugs,” citing the importance of confidentiality and autonomy for adolescents and lack of accuracy in detecting certain drugs.

Earls, a resident of Tecumseh — a small town 30 miles northwest of Oklahoma City — said she felt she had no other choice but to consent to the urine test when the program first began last year, because she didn’t want to miss out on competing in the Academic Team’s quiz bowls or performing in Show Choir and Marching Band.

Even more critical, the credit she earns for the courses fulfills the school’s fine arts requirement for graduation. The only other option for Earls and other students is a ceramics class or “music appreciation,” neither of which involve performance or competition.

“I’ll take the test again this year if I have to, but I know it’s not right and I know it’s not fair,” Earls said. “That’s why I’m fighting it.”

Daniel James, who also attends Tecumseh High School and lives in the town, said the policy “was like something out of 1984,” George Orwell’s frightening vision of a society where no one is safe from governmental surveillance.

“The policy gives all kinds of people access to my private information when there isn’t even any reason to think I’m doing drugs,” he said.

In fact, as a member of the peer counseling groups Life Guides, James has already voluntarily pledged not to take drugs or alcohol. Of the other school groups he wants to join, Academic Team requires a drug test and Youth Alive, a student prayer group, does not.

Recent government studies and other data show that students who participate in after-school activities are among the least likely to use drugs.

“Instead of treating all students like suspects, schools should be encouraging them to sign up for activities that guarantee they will be doing something positive under adult supervision,” the ACLU’s Boyd said.

Nonetheless, following a 1995 U.S. Supreme Court decision upholding random drug testing for student athletes in Oregon, many schools implemented drug testing policies. But the Court’s finding, Boyd noted, was based on evidence of rampant drug abuse at the school, and specifically did not address whether routine, suspicionless drug testing would be constitutional for either non-athletic or academic programs.

A state Supreme Court in Colorado answered that question last year in a case similar to today’s challenge, ruling that drug testing for non-athletic activities is unconstitutional. The state did not appeal the ruling to a federal court.

The case is Earls v. Board of Education, filed in U.S. District Court for the Western District of Oklahoma. Volunteer attorney Michael Salem of Norman, OK is participating in the lawsuit with lead attorney Boyd of the national ACLU.

The ACLU’s Drug Policy Litigation Project was established in 1998 to identify and rein in the legal excesses of government’s so-called “war on drugs.”