When the Supreme Court ruled in June in Earls v. Tecumseh that local school districts could constitutionally drug test students involved in extracurricular activities, the drug testing industry, some congressional drug warriors, and at least one well-known political hired gun got excited. But a round of interviews conducted by DRCNet this week suggests that school districts are not about to embark on a headlong rush into student drug testing despite the high court’s green light.
In a 5-4 decision, the Court expanded its 1995 Vernonia ruling, which allowed districts to test athletes in certain circumstances, to include students who wish to participate in activities such as debate society, chess club, and the like (https://www.drcnet.org/wol/243.html#schooldrugtesting). But while some anti-drugs groups predicted an avalanche of new drug testing programs in the schools, a number of factors are conspiring to make such an event likely.
“We did not see a big increase in school drug testing after Vernonia, and we don’t expect to see a big increase now,” said Ed Darden, senior staff attorney for the National School Board Association. “This is really a community decision, and there may be cost considerations, political objections and practical concerns that stop districts from moving in that direction,” he told DRCNet. “There will be a huge number of school districts who will not move toward drug testing no matter what the Supreme Court said.” “The Supreme Court decision hasn’t gotten a lot of play down here,” said Dr. Paul Whitten, Associate Executive Director of the Texas Association of School Administrators, which includes representatives from all of the state’s more than one thousand school districts. “Those schools that wanted to do testing are already doing it and those that didn’t want to aren’t going to start,” he told DRCNet.
The same sentiment echoed in Alabama. “We’ve got a handful of districts that have been doing it for awhile and a couple that are considering it now,” said Susan Salter, director of public relations for the Alabama Association of School Boards. “But we have not seen much change in the number of boards doing drug testing in the wake of Tecumseh,” she told DRCNet. In some states, the Supreme Court ruling is not an issue. “This has absolutely no impact on us,” said Mary Gannon, policy services director for the Iowa Association of School Boards. “The Iowa Constitution forbids suspicionless searches, even if the US Constitution does not. We do not do random drug testing of our students.”
DRCNet has been unable to find accurate numbers for the number of school districts currently using drug testing programs, but estimates ran from 2% to at most 10% of school districts nationwide. NSBA’s Darden said “it’s a small number of districts, less than 5%, I’d guess.” And based on anecdotal evidence, it appears that drug testing is most likely to occur in small, rural districts. Whitten was able to tick off the names of the Texas districts involved in drug testing—all were rural and situated in the Panhandle—although, as Salter pointed out, in Alabama, at least, drug testing is ongoing at affluent suburban Birmingham high schools as well as in rural districts such as Limestone County.
If the Supreme Court has removed an obstacle to wider drug testing in the schools, why is there no move to implement such programs? For Kevin Zeese, author of the Drug Testing Legal Manual and president of Common Sense for Drug Policy (https://www.csdp.org), the answer is that significant obstacles remain. “I attended the Drug and Alcohol Testing Industry Association (DATIA) conference here in July, and advocates for drug testing argued that, with the Supreme Court decision, the law is there, public support is there, and money for testing is there,” Zeese told DRCNet. “They are wrong on all three counts. The money is the big one,” said Zeese. “There is federal money available, but not very much of it, and it competes with other programs and services that are now seriously underfunded. State school systems are struggling and the money that might go to drug testing competes with programs such as mental health services, after-school programs and prevention programs,” Zeese explained. “Drug testing is so unproven at this point, that it is hard for it to compete.”
The legal status of drug testing remains problematic, as well, Zeese added. “Districts will have to be very careful to stick to the confines of the Supreme Court decision and go no further, and they will have to worry about the state courts. Some state constitutions offer greater protections than the US Constitution.” The school administration officials DRCNet spoke with all concurred on that count, each warning that districts faced the specter of costly litigation over drug testing policies. “This is the beginning of the legal battles, not the end,” said Darden.
As for public opinion, said Zeese, that is a battle to be waged. “There is knee-jerk public support for drug testing, but when parents look at the details, they can be dissuaded. There will be divisions in every school district, and this is an important opportunity for reformers to advance alternative drug prevention and treatment programs for kids,” he argued. “If we as a society really want to address youth drug use, we need a healthy kids program, preschool and after-school programs, we need mentors—that’s what works.”
If the Earls decision is not creating a rush to school drug testing, neither is there much sense that even broader testing is coming down the pike. “This is the end and the outer limits” of school drug testing parameters said Darden. “If we go beyond testing students in extracurricular activities to testing all students, as some have suggested, our answer is no. If you’re talking about testing every student and you have meaningful penalties, you end up taking away core educational rights.”
Zeese agreed. “The Supreme Court will not go further, provided the makeup of the Court remains the same,” said Zeese. “Justice Breyer was the fifth vote, and in his dissent he said one reason he could support extracurricular activity testing was that it allowed students to be conscientious objectors. They could opt out of the chess club if they didn’t want to be tested. They would pay a price, but they could still get an education.”
While school administrators seem to have a firm grip on the realities and practicalities of the issue, at least one Republican-leaning hired gun smells blood. Dick Morris, who once advised President Clinton on his “triangulation” strategy of relentlessly hewing to the center, and who has since evolved into a conservative FOX News TV commentator, saw the issue as a potential wedge issue for Republicans in this fall’s elections.
“The issue of school drug testing would put a key morality/crime issue back on the national agenda, a focus that has been clearly lacking” in recent years, Morris wrote in the congressional insider Hill News on July 1. “The absence of such an issue haunts Republican prospects in future elections.” The GOP should “latch onto this issue” and “recognize its political potential,” he added.
But aside from a press conference held by Rep. John Peterson (R-PA) to tout his new bill to provide financial and technical assistance to districts who want to undertake drug testing programs, the Republican masses have not risen up. Perhaps they are more leery of the messenger than the message. Being advised on morality issues by a political Hessian who lost his job with Clinton after being caught spending his evenings sucking the toes of a high-priced DC prostitute, as reported in the British tabloid The Star in 1996.