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School drug tests upheld THE SUPREME COURT


WASHINGTON -- The Supreme Court yesterday gave public school officials authority, with few limits on it, to order mandatory surprise drug tests of students -- starting with athletes, but potentially going further.

By a 6-3 vote, the court upheld an Oregon school district's rule requiring random urine screening for any student who wants to play a team sport, even when officials have no basis to believe that a particular athlete uses drugs.

As a policy idea, drug testing of athletes has gained popularity since the 1986 death, from a cocaine overdose, of Len Bias, a basketball star at the University of Maryland.

Yesterday's ruling seems likely to have its strongest effect on millions of athletes among the nation's public school children.

But depending on how lower-court judges interpret the decision, school officials might wind up with permission to order drug screening of many more students to deal with a perceived drug problem.

One justice voting in the majority, Ruth Bader Ginsburg, insisted that the ruling applied only to students who want to join in team sports. But her vote was not necessary to the outcome, and no other justice signed on to her separate opinion. The five others in the majority embraced a far more sweeping opinion written by Justice Antonin Scalia.

The decision, the first the court had issued in six years on the legality of drug testing, broke new ground. Never before had the court authorized official intrusion into bodily privacy, without any suspicion, if the intrusion was not justified by work-related duties or public safety.

Random tests for police, firefighters, airline and railroad crews, and for prison inmates, have become common.

The ruling will not affect state colleges and universities. The court stressed that it was dealing only with children, not adults, and with students who are required to go to school and remain under the control of administrators, not those who attend college voluntarily and come and go as they please.

Gwendolyn H. Gregory, deputy general counsel of the National School Boards Association, noted that there is not much drug testing in public schools now, and the few court decisions that have emerged usually have barred such tests.

But the new decision, she said, gives school officials "a policy discretion that had been problematic before." Factors likely to determine how many school districts use the new decision to justify drug-testing programs, Ms. Gregory said, are the reaction of local communities and cost.

She said she expected that most school board lawyers would interpret the decision as a narrow one, and she predicted that most "are going to be pretty careful about trying to expand this to the entire student body."

Nothing in the decision applies to drug testing by business or other private organizations, because the ruling was based on the Constitution's Fourth Amendment -- a limit only on government-ordered searches.

Justice Scalia's majority opinion said the key to the ruling was that public school students are "children who have been committed to the temporary custody of the state as schoolmaster." Those students, the court said, have lesser rights of privacy than adults.

"While children assuredly do not shed their constitutional rights at the schoolhouse gate, the nature of those rights is what is appropriate for children in school," Justice Scalia wrote.

Of the three main factors the Scalia opinion cited to justify the mandatory random testing at issue, two seem to justify school drug tests that go beyond student athletes: First, the students involved are youngsters, and, second, they are required to attend school and while there are under administrators' control as temporary stand-ins for the parents. Those two factors would always be present in any school-ordered drug testing program.

The third factor cited seems to support tests only for athletes: the nature of school athletics. Students involved volunteer to join teams, are routinely subject to locker-room conditions that provide little privacy, are often required to take physical exams not required of other students, are subject to injury especially if they are using drugs, and act frequently as "role models" for other students.

With sometimes graphic descriptions of the scene in locker rooms, Justice Scalia remarked that "school sports are not for the bashful."

After dismissing the privacy interests of student athletes as "insignificant," the court said it found strong community interest in "deterring drug use by our nation's schoolchildren. . . . School years are the time when the physical, psychological, and addictive effects of drugs are most severe."

Joining the Scalia opinion in full were conservatives Chief Justice William H. Rehnquist and Justice Clarence Thomas and moderate Justice Anthony M. Kennedy, plus one of the more liberal justices, first-year member Stephen G. Breyer.

Justice Sandra Day O'Connor, a moderate, wrote the dissenting opinion, joined by the more liberal Justices David H. Souter and John Paul Stevens. Justice O'Connor said one of the most eloquent reasons against random drug testing of student athletes was in the testimony of the youth involved in the case, James Acton of Vernonia, Ore., now 16.

James, who refused random testing as a condition for playing football in the seventh grade, was asked on the witness stand in a lower court why he had refused. His reply: "Because I feel that they have no reason to think I was taking drugs."

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