June 28, 2002

Justices Allow Schools Wider Use of Random Drug Tests for Pupils


WASHINGTON, June 27 — The Supreme Court today upheld the widespread use of random drug testing of public school students in a significant expansion of an earlier ruling that endorsed drug testing for student athletes.

The 5-to-4 decision upheld a program in a rural Oklahoma district that required students engaged in "competitive" extracurricular activities, a category that includes the future homemakers' club, the cheerleading squad and the choir, to submit to random drug testing.

In emphasizing the "custodial responsibilities" of a public school system toward its students, rather than the details of how the program was organized, the majority opinion by Justice Clarence Thomas appeared to encompass random drug testing of an entire student population.

But one member of the majority, Justice Stephen G. Breyer, who wrote a concurring opinion while also signing Justice Thomas's, said it was significant that the program in the Tecumseh, Okla., school district "preserves an option for a conscientious objector" by limiting the scope to students in extracurricular activities. A student "can refuse testing while paying a price (nonparticipation) that is serious, but less severe than expulsion," Justice Breyer said.

Students who are found to be using drugs at Tecumseh High School are barred from their activities and referred for counseling, but are not otherwise disciplined or reported to the police. The policy was challenged by Lindsay Earls, an honor student active in several activities who is now attending Dartmouth College.

Ms. Earls lost her case in federal district court in Oklahoma City but won last year in the United States Court of Appeals for the 10th Circuit, in Denver. That court examined the Supreme Court's 1995 ruling in Vernonia School District v. Acton and said that the athletes-only precedent did not validate the broader Tecumseh policy. The Tecumseh program violated the Fourth Amendment's prohibition against unreasonable searches, the appeals court ruled.

In his opinion overturning that decision today, Justice Thomas said the Tecumseh program was "entirely reasonable" in light of the "nationwide epidemic of drug use" among school-age children. While the Tecumseh district did not now appear to have a serious problem, he said, "it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use."

The decision, Board of Education v. Earls, No. 01-332, was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy as well as Justice Breyer. The dissenters were Justices Sandra Day O'Connor, John Paul Stevens, and David H. Souter, all of whom were in the minority in the court's athletes-only ruling in 1995, and Ruth Bader Ginsburg, who had concurred in the earlier decision. In a dissenting opinion today, which the other three dissenters joined, Justice Ginsburg said the two cases were significantly different.

In the first, she said, the court "concluded that a public school district facing a disruptive and explosive drug abuse problem sparked by members of its athletic teams had `special needs' that justified suspicionless testing of district athletes as a condition of their athletic participation." But she said the 1995 opinion "cannot be read to endorse invasive and suspicionless drug testing of all students."

Had the court in the Vernonia case "agreed that public school attendance, in and of itself, permitted the state to test each student's blood or urine for drugs," she continued, "the opinion in Vernonia could have saved many words."

Justice Thomas said in the majority opinion that the differences in the two cases were "not essential." The earlier decision did not depend on the program's details but on "the school's custodial responsibility and authority," he said.

Justice Thomas added that it would not necessarily be less intrusive to require that drug testing be based on suspicions of particular students. That approach "might unfairly target members of unpopular groups" and place added burdens, including fear of lawsuits, on teachers and administrators, he said.

In another decision on the final day of its term, the court ruled that prison guards in Alabama were not entitled to immunity in a suit brought by an inmate whom they had handcuffed to a hitching post in the hot sun as punishment for disruptive conduct.

The incident occurred in 1995, by which time Alabama was the only state that used this method of restraint for prisoners. The United States Court of Appeals for the 11th Circuit, in Atlanta, ruled that the prisoner's treatment amounted to cruel and unusual punishment, in violation of the Eighth Amendment.

But the appeals court said the guards were immune from liability because in 1995, no cases dealing with "materially similar facts" had made clear the unconstitutionality of the treatment. The question for the court today in Hope v. Pelzer, No. 01-309, was whether this was the correct approach to what is known as qualified immunity.

By a 6-to-3 vote, the court overturned the appeals court and said it had used too narrow a standard. Justice Stevens said for the majority that the correct question was whether the "state of the law in 1995" gave "fair warning" to prison guards that they could not treat a prisoner in this manner. Based on the "obvious cruelty inherent," Justice Stevens said, the answer was yes.

Justice Thomas filed a dissenting opinion, joined by Chief Justice Rehnquist and Justice Scalia. The dissenters said reasonable prison guards in 1995 would not have been on notice that their conduct was unconstitutional.

Copyright 2002 The New York Times