Urinalysis and Other After School Activities

A few years ago, the Supreme Court upheld a random testing regime in which student athletes were testing for drugs following evidence (disputed by the dissent) that there was a drug problem in the community, one specifically prevalent among student athletes, who also served as role models for other students. Furthermore, additional “special needs” were present because athletes in particular generally require more testing and are less likely to see random urine tests as a violation of privacy: athletes after all shower together, sometimes must take steroid tests, and have medical checkups to qualify for some sports. Therefore, even if the Fourth Amendment usually considers random drug tests without individual suspicion “unreasonable” searches, it is acceptable in this more limited area. After all, even certain adults, including drug agents, are required to take drug tests. Justice Ginsburg in particular said the special issue of student athletes is why she concurred with the majority. Nonetheless, Justice O’Connor led three dissenters in saying that even here targeting innocent students is a clear violation of privacy and the Fourth Amendment. Drug use has various visual signs; so targeting those school officials has individualized probable cause (though a lesser standard is used for students, rightly or wrongly) is possible as well as being constitutionally required. And, random drug testing is quite different from other activities athletes must perform, not the least because they accuse the student of wrongdoing, as compared to ordinary activity (showering) or basic health checkups.

Board of Education of Pottawatomie County v. Earls (5-4) took things one step further. Now, students were required to take drug tests before being involved in extracurricular activities. Now, the argument that after school activities (quite important for college, the high school experience, certain electives, and enjoyment) is voluntary is ridiculous. Calling attendance at college football games and graduation ceremonies voluntary did not cut it in the school prayer cases and the argument shouldn't here. The Court rightly said such events are quite important to students, so public school supported prayers could not be used before them, even if technically one need not attend. The same applies here: extracurricular activities are basic to the educational experience, so their alleged “voluntary” nature does not make random searches noticeably less troubling (Justice Breyer, however, voiced doubt testing all students would be legitimate, but arguably his reasoning is at least somewhat ad hoc). It is nice that the policy is not punitive, unless one considers losing the right to enjoy extracurricular activities is a serious punishment for many students, but the privacy concerns are much broader than the student athlete case. And, given all activities are covered (e.g. Chess Club), much less defensible, especially since those who do not spend as much time being involved in extracurricular activities sponsored by the school have more time to use drugs!

This policy sends a great message to students, if the message is that the government doesn't trust you and rights don't apply to powerless groups. Maybe, they will complain in the school newspaper ... unless the authorities won't let them because it is considered "controversial," by authority given by the Supreme Court when it took one more liberty from school children and allowed principals broad rights to censor student newspapers. Some might consider urine tests not a great violation of privacy, but the principle upheld in this case is much broader: the right of the state to target certain groups for inexact “special needs” without individualized suspicion, while privacy concerns are thrown to the wayside. Schools currently have a great deal of power over students (even maximum security prisoners cannot be whipped, while students can be paddled in many states), now constitutional demands are weakened a bit more and the lesson is taught to children that current fears are more important than our basic liberties. Yes, our students are being educated, but should we be so happy with is on the curriculum?

Finally, the special circumstances excuse is basically bogus. The idea being put in promoted is that basic freedoms, like speech and privacy, are great ... except when a special circumstance is involved denigrates the underlining liberty. Of particular concern is the tendency to use arguments that sound reasonable (e.g. “if we only use individualized suspicion, socially disfavored groups might be unjustly targeted”) but run against what the Constitution says. Is the Constitution a type of list of suggestions that we can pick and choose from as we go along? It is true that the Fourth Amendment talks about "reasonable" searches, but reasonable includes respect of constitutional liberties like individual suspicion, privacy, and the like. This includes not having to pee in a cup to join Chess Club.