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When did 'School Testing' means testing kids for drugs?
[June 27, 2002]

By S. M. Oliva

The big news of the day in the Supreme Court is their decision to uphold the constitutionality of Cleveland’s school voucher program. But the more important ruling, at least if you believe that freedom applies to all Americans, is the Court’s 5-4 decision in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls. Led by the normally pro-freedom Justice Thomas, the Court said that students in public schools enjoy no substantive rights under the Fourth Amendment. Of course, they didn’t say that directly, but that is the only rational interpretation of their non-reasoned decision, which upholds a school district’s policy of requiring all students to take a drug test as a condition of being allowed to participate in any extracurricular activity, such as the chess club (where I can only imagine that cocaine use is rampant!)

Justice Thomas said the ends justified the means; the “ends” being the school district’s “important interest in preventing and deterring drug use among its schoolchildren” and that the drug testing policy “does not violate the Fourth Amendment.” This is true, of course, if you don’t actually read the Fourth Amendment, which says, in relevant part “The right of the people to be secure in their persons…against unreasonable searches and seizures, shall not be violated.” Making a student urinate in the cup so you can see if he’s using drugs is a “search”, and in the absence of any reason to believe an individual student may be culpable, there is no “reasonable” grounds for such a search.

Justice Breyer, concurring in the Court’s opinion, says that it would it be impractical to actually follow the Constitution, since requiring “individualized suspicion” could cause schools to “unfairly target members of unpopular groups, or leave those whose behavior is slightly abnormal stigmatized in the minds of others.” In other words, it’s better to subject all students to random drug testing, rather than actually trying to figure out who the real drug users are first. It would be like the government trying to find Islamic terrorists by randomly searching all airline passengers. Oh, wait…

Justice Ginsburg thankfully tries to inject some reason into this case with her forceful and convincing dissent, which was joined by Justices O’Connor, Stevens and Souter. She goes right to the intellectual core of the problem here, which is that there is absolutely no rational grounds for a school district to presume that all students engaged in extracurricular activities are potential drug users requiring state intervention in their bodies. She mocks the school district’s claim that concern for “health and safety” allow random urine tests of members of Future Farmers of America (which handle livestock), a cooking club and the band: “Notwithstanding nightmarish images of out-of-control flatware, livestock running amok, and colliding tubas disturbing the peace and quiet of Tecumesh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree.”

In fact, Justice Ginsburg correctly states, students engaged in these kinds of extracurricular activities tend to be less inclined towards using illicit drugs. That’s obvious to most thinking people. The reason most people take drugs, especially minors, is that they are trying to flee a reality in which there mind cannot cope and achieve. The respondent in this case, Lindsay Earls, was a member of the choir, marching band, Academic Team, and the National Honors Society. Does this sound like the profile of a heroin addict?

But perhaps the biggest fraud which this case perpetuates is the doctrine of in loco parentis, the notion accepted by the Court that schools are a direct substitute for parental authority in the context of public education. What the Court did today was say that schools must be allowed to operate over parental authority, as Miss Earls’ parents were the ones who initially filed suit to stop the drug testing policy. Not only do schools have the right to ignore the Fourth Amendment, they don’t even have to abide by parental judgments as to whether their children are appropriate targets of random drug testing policies. In other words, the state always knows best.

Justice Ginsburg also raises the disturbing fact—completely unaddressed by Justice Thomas—that the school district in this case was violating their own policies with respect to the drug testing, allowing unauthorized persons access to the supposedly confidential results. The trial court, in granting summary judgment to the school district, said that they believed the district’s mere statement that they weren’t violating the policy, even though the Earls’ presented clear and unimpeached evidence to the contrary. Justice Ginsburg correctly states that the trial court erred in not considering summary judgment according to facts most favorable to the Earls, but the Court’s majority saw no issue there, continuing to promote the doctrine that the ends always justify the means, especially when the end might be impeded through application of individual rights.

Today’s decision is a disaster for individual rights. It adopts a collectivist interpretation of the Fourth Amendment that allows school districts—a government agent—to deny rights based simply on a person’s age, status and decision to participate in extracurricular activities. School districts who wish to act as agents of the government’s “War on Drugs” may now do so free of constitutional restriction or parental authority. Concluding her own dissent today, Justice Ginsburg states a sad truth:

“It is a sad irony that the petitioning School District seeks to justify its edict here by trumpeting ‘the schools’ custodial and tutelary responsibility for children.’ In regulating an athletic program or endeavoring to combat an exploding drug epidemic, a schools’ custodial obligations may permit searches that would otherwise unacceptably abridge students’ rights. When custodial duties are not ascendant, however, schools’ tutelary obligations to their students require them to ‘teach by example’ by avoiding symbolic measures that diminish constitutional protections. [As the Court held in a 1943 case] ‘That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount the important principles of our government as mere platitudes.”


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