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Supreme Court Watch

March 19, 2002 at 12:00 AM EDT


GWEN IFILL: In 1995, the Supreme Court ruled for the first time that it was not a violation of privacy rights for schools to test student athletes for drugs. Today, the Court was asked to expand on that ruling by allowing tests of students involved in other activities, like band and Glee Club. For more on today’s arguments, we turn to NewsHour regular Jan Crawford Greenburg of The Chicago Tribune.

So Jan, what makes today’s case arguments different from the 1995 case?

JAN CRAWFORD GREENBURG: This just involves a much larger group of students. In 1995, in what was a landmark ruling, the Supreme Court ruled that schools that had a problem of drug use in among athletes could test those athletes for drugs.

Now, in the wake of that ruling, schools really sought to expand on those policies and, as the school district in Oklahoma implemented, policies that would test all students wanting to become involved in any extracurricular activity.

GWEN IFILL: Now the school district in Oklahoma, why did they decide to choose only students only involved in extra curricular activities. Why not all students?

JAN CRAWFORD GREENBURG: Well, that came up a lot in court today. And the question is where do you draw the line. And the lawyer for the school district said we’ll draw the line here. A student can always elect not to participate. If you decide to test all students — school is obviously mandatory — so the school could be in the position of testing students and really having a punitive impact.

They said the purpose of the drug testing isn’t to punish, the lawyer emphasized repeatedly that the purpose was to deter drug use among students.

GWEN IFILL: Now the case in 1995 was brought because there was evidence student athletes were, there was more evidence of drug use among student athletes?

JAN CRAWFORD GREENBURG: That’s right. In the court, I remember in oral arguments that indicates that the lawyer talked repeatedly that there was such a problem among athletes. Athletes were role models – they were just acting crazy in the hallways; and the school was just at a loss to what to do with it. They also emphasized at that time there was a safety concern. The wrestling coach at the time said he was worried that student athletes using drugs could be harmed when they were competing. Obviously some of those things weren’t at issue today. If you’re looking for the Glee Club you’re not so concerned about safety on the playing field or on the wrestling mat.

GWEN IFILL: Exactly. I was a member of the Glee Club and I don’t remember drug testing. Is this something they were looking for a line to draw or a line the school may have more control over, like an extracurricular activity?

JAN CRAWFORD GREENBURG: Well, again the lawyer for the school district said that line was a clear and important one here. But some of the Justices who were hostile to the great expansion of the ’95 ruling, such as Justice David Souter and Justice Ginsburg, were very worried about that line being quite a fuzzy one, because to Justice Souter and Justice Ginsburg, today if these arguments held, because there is no safety concerns for people in the Glee Club and they’re really not a strong, certainly as in the 1995 case a strong evidence of rampant drug use then why not test everybody? That was their concern today.

GWEN IFILL: So there doesn’t have to be individual suspicion, it doesn’t have to be an individual person?

JAN CRAWFORD GREENBURG: No, that’s why the 1995 case was such a landmark one, because that ruling marketed first time that the Supreme Court in this context said, “you don’t need to suspect the individual in the school before you search them.” Or as here, a drug test is considered a search– conduct a drug test.

GWEN IFILL: We have talked so many times about privacy rights at this table, does this basically give educators more power for a warrantless search than the police?

JAN CRAWFORD GREENBURG: Sure. And Justice Scalia, writing for the majority, emphasized in 1995 why this is so: Because schools acting in the place of parents. And of course the court in the late ’60s ruled students don’t leave their constitutional rights at the schoolhouse gates. The court over the years, in 1985 and beyond, began really suggesting that students have lesser expectations of privacy and that schools acting as parents have greater control over the students than the government would of course, in say an office situation for employees.

GWEN IFILL: Is there a slippery- slope argument here, first with the athletes and then students in other activities?

JAN CRAWFORD GREENBURG: That’s what Justice Souter’s concern was today and Justice Ginsburg’s as well, the next step was all students in middle school and high school, that schools could just come in and have a random drug testing.

GWEN IFILL: So Justice O’Connor wrote the dissent the last time around. What did she sound like today?

JAN CRAWFORD GREENBURG: She seemed very disturbed as well, saying a couple of times it was counterintuitive and odd, and her point, again one Justice Ginsburg made: What is the school district trying to accomplish here? Are the students in extracurricular activities, like you in the Glee Club, is that really where we’re having our drug problem?

And Justice Ginsburg and Justice O’Connor pointed to evidence that showed it’s not the students in the extracurricular in the activities, it’s the students, who as Justice Ginsburg put it today, who are idle, they’re the students who are having the drug problems. They were questioning the school’s purpose in having this policy in the first place.

GWEN IFILL: Tell me if I’m wrong. It sounds like the justices were more engaged in laying out how they stand.

JAN CRAWFORD GREENBURG: To some degree, yes, because it’s a replay of that ’95 case. This is interesting on a number of levels because it shows how quickly the law evolves in the wake of the Supreme Court ruling. We had that landmark ’95 ruling.

Then we saw school districts across the country begin to implement these drug- testing policies, and like with any court decision, you know school districts here tried to push the envelope a little bit.

GWEN IFILL: Right. Justice Scalia wrote the majority last time around.


GWEN IFILL: What did he sound like today?

JAN CRAWFORD GREENBURG: Oh, he was clearly supportive of the school board’s attempt to test students who are involved in extracurricular activities, and he again emphasized today schools are acting in the place of parents.

GWEN IFILL: Now when you talk about the fact immediately laws change and perhaps behavior changes after a Supreme Court ruling who is watching this most closely, educators, is it state courts?

JAN CRAWFORD GREENBURG: It’s certainly the schools who are trying to implement these policies, but lower courts, state and federal courts, there has been a split here.

For example, the federal appeals court in Chicago, in 1998, said this kind of policy was constitutional. The federal appeals court in Denver last year said it was not. So we had a split in the federal courts. And the state courts, of course, are looking at slightly different issues, because these policies can also be challenged under the state constitution, and in some states, the state constitutions provide more protection.

GWEN IFILL: And have school boards been rushing to implement it or is it still just that murky?

JAN CRAWFORD GREENBURG: A story I did recently suggested that there were not a huge rush of school districts trying to implement these drug testing policies — there are other mechanisms that schools can use and drug tests are pretty expensive so there hasn’t been this rush to do it, but some of the schools that have, have gone obviously beyond what the Supreme Court said is specifically allowed.

GWEN IFILL: So what happens to the students, not athletes, they’re not members of any school clubs? Is there any way school districts are trying to figure out how to get a handle on what their drug use might be, drug abuse may be, and use the courts or these kinds of rulings to get at it?

JAN CRAWFORD GREENBURG: Schools– this was emphasized in court today– schools have other mechanisms for detecting drug use: Drug sniffing dogs and students sometimes report the use of students doing drugs, or teachers might suspect it. Schools can always conduct drug testing based on suspicion when they have reasonable grounds to believe that there is something wrong that’s going on.

So sure, I mean some of the students who may not be caught by the random drug testing because they’re not in extracurricular activities or at they’re not in athletics, if they’re using drugs schools have other ways to detect that.

GWEN IFILL: All right, Jan, thanks for taking us inside the court.