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Supreme Court Watch

June 27, 2002 at 12:00 AM EDT


RAY SUAREZ: Still with me is Jan Crawford Greenburg. Jan, let’s look at the school drug test case first. What was at stake there?

JAN CRAWFORD GREENBURG: At stake is whether or not schools across the country could test all students, all junior high and high school students who were involved in any kind of extracurricular activity, be it band or choir or the chess club if they could test those students randomly for using drugs.

RAY SUAREZ: And this was without any previous suspicion of drug use?

JAN CRAWFORD GREENBURG: That’s right. Now, in 1995 — we have to look at this case against the backdrop of a 1995 ruling in which the court, for the first time ever, ruled that none of that suspicion was required in the public school context when a school wanted to test athletes. After the court handed down this ruling, school districts across the country started pushing the envelope a little bit. They started saying, “Look, if we’re going to test athletes, let’s see if we can test other students involved in these other extracurricular activities.” Schools said they had a very significant interest in deterring students from using drugs and protecting them from the harms of drug use.

A student in Tecumseh, Oklahoma, a very bright, promising student involved in the band and choir and a number of other extracurricular activities, challenged that school district’s drug testing policy, the expanded policy. Sued. She argued that it violated her right to be free from unreasonable searches and seizures that are guaranteed by the Constitution’s Fourth Amendment. That was the case that was heard toy in the Supreme Court, and that’s the court that the court used today to announce this broad holding that schools across the country can, in fact, test a wide range of students randomly for drugs.

RAY SUAREZ: How big with the majority, and what did the opinion say?

JAN CRAWFORD GREENBURG: This was a narrowly divided opinion 5 to 4. It’s an interesting question because, in 1995, the decision was 6 to 3. They lost today, Justice Ginsburg. In 1995, Ginsburg emphasized that the ruling should apply only to athletes because of the special needs that athletes may have. She was persuaded that athletes could be harmed on the playing field if they were under the influence of drugs, and that sometimes they’re the leaders in the schools.

Furthermore, athletes have what we call a “lesser expectation of privacy” because they’re used to being in the locker room and those kind of settings. None of that applied today in Justice Ginsburg’s mind to students who are just in the choir or in the band and she wrote the dissent for one of the dissents for the court today, explaining all of those concerns and suggesting that the ruling was in fact perverse because these are the very students who typically don’t have problems with illicit drug use, the ones who are heavily involved in school activities.

She suggested these aren’t the students that we need to be worried about. The schools are off trying to do these new drug testing programs, in which they really are not tuned in to what their interests in protecting students should be about.

RAY SUAREZ: And the majority’s defense of their decision was based on…

JAN CRAWFORD GREENBURG: Justice Thomas, Clarence Thomas wrote the opinion for the majority, and he emphasized that schools do in fact have a very strong and compelling interest in protecting students from drug use. And he stressed that central to the previous holding, as is true today, was that schools act as guardians, as stand-in parents for the school children. So they have different privacy interests then, say, you and I would if we were just walking down the street.

Schools protect the children, they act as guardians, and so therefore, students lesser privacy interests and the schools have these heightened concerns. Based on those two things, Justice Thomas, writing for the majority today found that this program did not run afoul of the Fourth Amendment.

RAY SUAREZ: Now, are there a lot of school districts that have been using tests of this kind that now have a green light to move ahead in a much broader way?

JAN CRAWFORD GREENBURG: You know, that’s a good question. And I think it’s hard to define. After the court handed down this first ruling testing athletes, as I said, other schools started pushing the envelope. And some lower court opinions started coming up evaluating whether or not schools could continue this broader drug testing.

I did a story a couple of years ago, in which I interviewed students from all over the country and school districts across the country, and many school districts said, “you know, this may be a good idea, and yes, we’re very interested in deterring drug use, but these are pretty expensive tests. Some of them cost, you know, $35 a pop, and you know, we’re going to spend our money on other things.” Of course other school districts have used it as an opportunity to expand, so it’s really now up to the individual school district and whether they believe that this is somewhere they need to be spending their money.

RAY SUAREZ: The other big decision from today involved the election of judges. It was a Minnesota case. What was being argued?

JAN CRAWFORD GREENBURG: This involved a judicial campaign speech and whether or not judges, like candidates for city council or, you know, the State Senate or any other political office should be able to express their views on issues of the day. Minnesota, like eight other states, has a code that prohibits judicial candidates from announcing their views on disputed legal or political issues. As the court found today, that strictly and severely restricts what they can say on a wide variety of topics.

A judicial candidate in Minnesota challenged that as a violation of his free speech rights under the First Amendment. And the Supreme Court, in a 5 to 4 ruling today written by Justice Scalia, said that he in fact did have a First Amendment right to be able to make these statements; that this code was unconstitutional because it targeted a core speech, core political speech, that’s at the heart of our freedoms, and that violated the First Amendment.

RAY SUAREZ: And what did the dissenters have to say?

JAN CRAWFORD GREENBURG: This came down to a matter of free speech. We need to be able to allow judges to be able to say this, the majority said, and the dissenters led by Justice Ginsburg who summarized her dissent from the bench today quite passionately that this is about impartiality and the public’s trust in the judicial system, that we cannot have and the states have an interest in limiting some of the things that judicial candidates can speak about because the public needs to know that the judiciary is impartial and unbiased. When they get a case, they’re not going to already have their mind made up, they’re not going to be biased. Justice Ginsburg in her dissent said, “I do not believe an election is an election, is an election.” Judicial elections are different and the majority she said today ignored all of that.

Justice Stevens also wrote a separate dissent, articulating further on how he found the majority’s reasoning so troublesome and suggesting it was just naive to think that the public confidence would not be undermined by today’s ruling. Now, Justice O’Connor, who was with the majority, had a very interesting concurring opinion that she wrote.

This wasn’t an issue in the case, this opinion doesn’t really have any sway in the lower courts, but she said, “look, if the states are so concerned about an impartial judiciary, they’ve brought all of this on themselves.” She questioned the very wisdom of electing judges in the first place. It wasn’t around at the time of the founders, in fact, the founders of the Constitution had serious concerns of electing judges.

So they traced the origin of how we’ve come to elect judges; 38 states now elect their own judges to the state Supreme Courts, and she suggested that that’s really… not really the way to go, that of course a judge who’s up for re-election would be influenced by how the public, who might later have to vote on them at the ballot box, how they might view one of his rulings.

RAY SUAREZ: Well, how did the majority deal with just that issue, that idea that if someone’s opinions on different laws in the state are well-known, you might choose them because you want that law overturned?

JAN CRAWFORD GREENBURG: Well, the court looked at that when it said, “we hear you in Minnesota, we know you’re concerned about bias. We know you’re concerned about open-mindedness, but this doesn’t narrowly get at the bias problem. We’re not talking about a bias in specific case.” And judges may be talking about issues, and it’s impossible for us to believe that courts can limit the speech of somebody who’s campaigning, can limit their… the campaign speech on a core political issue. This is not about open- mindedness. We know that judges who are on the bench talk about their own views. This is only a campaign political core free speech issue.

RAY SUAREZ: Jan, thanks.