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CNN Live Saturday

Is Drug Testing Students Constitutional?

Aired March 23, 2002 - 12:18   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KATE SNOW, CNN ANCHOR: Turning now to a case before the Supreme Court. It involves school drug testing. An Oklahoma school district defends its policy of random drug testing for high school students involved in competitive extracurricular activities. Many students, parents and the ACLU say the tests are intensive and a violation of privacy.

Our Elaine Quijano reports from Washington.

(BEGIN VIDEOTAPE)

ELAINE QUIJANO, CNN CORRESPONDENT (voice-over): About four years ago while she was a student at a rural Oklahoma high school, Lindsey Earls was tested for drugs, not because school officials had reason to suspect her of drug abuse, but because she wanted to join the choir.

LINDSEY EARLS: I'm not doing drugs, so I shouldn't be -- I shouldn't have to prove that I'm innocent.

QUIJANO: It's an issue the Supreme Court hasn't fully resolved. Back in 1995, the court ruled schools could test athletes for drugs. Now officials at Earls' former school say to help fight drug abuse, testing should also apply to students in any extracurricular activity.

STEPHANIE MATHER, CO-COUNSELOR, TECUMSEH HIGH SCHOOL: It is frankly perhaps not fair to attempt to categorize the organizations and say oh, the athletes use drugs more often than the people in the band.

QUIJANO: But Earls and her supporters argue random drug tests of non-athletes are an invasion of privacy. They say the tests discourage students from joining activities that might keep them away from drugs -- activities like band, choir and academic teams.

GRAHAM BOYD, ACLU ATTORNEY: What this school is doing is setting up barriers to those activities. I think their intentions are entirely good, but I think what they're ultimately doing here is counterproductive.

QUIJANO: Already a federal appeals court has agreed with Earls. Now, both sides are looking to the Supreme Court, where a final ruling is expected by summer.

In Washington, I'm Elaine Quijano. (END VIDEOTAPE)

SNOW: So, should school systems have the right to do random drug testing? We'll debate the issue with our two guests. Julie Underwood is with the National School Boards Association here with me in Washington. Graham Boyd is with the ACLU and actually argued the Oklahoma drug case before the Supreme Court. He's in Stamford, Connecticut this afternoon.

Thank you both for being with us on a Saturday.

BOYD: Thanks for having me.

JULIE UNDERWOOD, NATIONAL SCHOOL BOARDS ASSOCIATION: Thank you.

SNOW: Let me start with you, Ms. Underwood. The fourth amendment protects against unreasonable searches. Why aren't these drug tests of students unreasonable?

UNDERWOOD: Well, one reason is that we're talking about children and children as it relates to schools. And so students don't have a complete fourth amendment protection. It's diminished because they are children and because they're in school. Secondly, they are asking to participate in voluntary activities. And so they're given a choice. They can submit to the drug tests or they can not participate in the extracurricular activities.

SNOW: Mr. Boyd, what about that? You don't have to do the drug testing unless you want to be part of the choir, for example, or some other after school activity. Doesn't that make this less intrusive, then? You don't have to do it if you don't want to.

BOYD: It's really not enough. I think most of us understand that giving a urine sample is not something we would submit to if the police wanted to just come down our street and say to everyone here, give us some urine to prove you're not using drugs. Athletes, that's familiar. People understand that. But extending that to participating in the choir, there's just no logical basis for doing that.

In fact, in the argument on Tuesday, a conservative justice, Sandra Day O'Connor, said it's just downright odd. And I would agree with that. It makes no sense.

SNOW: The Justice Department pointed, I know, in their brief to a survey in 2000 that showed that 54 percent of 12th graders and 46 percent of 10th graders had said they used illegal drugs. That's got to stop. I mean is this, do you think, Ms. Underwood, a way to put a stop to that?

UNDERWOOD: Yes. The primary reason the school district wants to do this is deterrence. We have seen studies that indicate when schools start random drug testing of students it decreases drug use in that school by 50 and 60 percent.

SNOW: Mr. Boyd, will that work? Test the students and get them to stop using drugs.

BOYD: Well, it really won't. This program is one that's been actually assessed by the national group of pediatrics and teachers and also drug treatment providers. And what they said is what actually does work and what the studies do confirm is that if you get students involved in the choir or the debate team or any of those other activities, that prevents drug use. But if you impose a drug testing policy, the drug test itself doesn't particularly deter drug use. There's no evidence of that.

But what it does do is steer some of the kids away from these productive activities. So what the experts say is that this policy actually hurts kids and promotes drug use. And that's one of the reasons we certainly do oppose it.

SNOW: Julie Underwood, are you discouraging kids from joining the choir?

UNDERWOOD: No, certainly not. And, in fact, there are experts who say exactly the opposite thing. We have seen a substantial decline in drug use in schools when they start drug testing, plus we want to encourage students to be in extracurricular activities, of course. When they're there in school they're doing something positive and we do want to keep them there. But we don't want them to use drugs while they're at school, while they're engaged in these activities and we don't want that to go on to other students, either.

SNOW: And what happens if they do? What happens if they come back with a positive reading?

UNDERWOOD: Actually, if they come back with a positive reading, they're just removed from the extracurricular program. It's not like they're sent down to the police station or anything else.

BOYD: Well, the...

UNDERWOOD: Their parents are called and that's...

SNOW: They're not kicked out of school?

UNDERWOOD: No. They're not kicked out of school. They're removed from the extracurricular activity and that's all.

BOYD: And that's very counterproductive. I mean that's the last thing you want to do. I mean I'm very troubled by the fact that even at the national level the federal government went to court saying let's ignore the pediatricians here. We want to open up this war on drugs and include as its target girls like Lindsey Earls who...

UNDERWOOD: But let's listen to the educators...

BOYD: ... are in the choir. It really makes no sense. I mean this is the same federal policy -- federal administration that's taking away financial aid from college students who smoke marijuana. You can actually commit rape or murder in this country and keep your financial aid, but if you smoke marijuana, you lose it. The students are becoming the victims in this war on drugs, which is really not working.

UNDERWOOD: Let's listen to the educators, though. We know what goes on in schools. The educators are there every day. They know how to encourage students to participate in extracurricular activities. Pediatricians aren't in the school every day.

BOYD: Well, actually, the national teachers...

UNDERWOOD: So we need to listen to the educators, as well.

BOYD: And the national teachers group also weighed in against this policy. Ninety-five percent of schools aren't drug testing anybody. It's only a very small minority and what they're doing...

UNDERWOOD: About 500 out of the 15,000 are now...

BOYD: ... is basically trying to sound tough without actually doing something that's going to help the kids. And that's a shame.

SNOW: Mr. Boyd, from all the accounts that I read about the arguments before they, before the actual court, before the Supreme Court, it sounds like your side didn't make a lot of points with the Justices. It sounds like they were sort of sympathetic to the other side and sympathetic to letting these, letting this policy stand in Oklahoma. Is that your sense? Do you think you're going to lose this one?

BOYD: It really isn't my sense. What happened is several of the Justices, Justices O'Connor and Souter and Ginsberg in particular, were very vocal in saying this policy had no basis in history, there wasn't a significant level of drug use here, or in common sense because of who it was targeting. Justice Scalia and Justice Kennedy were very aggressive on the other side of it. And I think there are a few Justices in the middle who it's very hard to read what they're going to do. This will be a close case. I would wager to bet it will be a 5-4 decision.

SNOW: OK...

BOYD: I don't know which side is going to come out on top.

SNOW: We'll leave it at that.

Julie Underwood, Graham Boyd, thanks so much for both being with us today. We appreciate it.

BOYD: Thank you.

UNDERWOOD: Thank you.

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