A question for "The Fray": If you could pick just one Supreme Court justice to spontaneously haul off the bench—say, in the middle of oral argument—and drag into a nearby bathroom, where they'd be forced to hike up their robe and pee into a Dixie cup, whom would you choose? Take your time. We have all night.
The Fray posters I'd really love to hear from would be the junior-high and high-school students—whose right to the privacy of their own urine is on the line in this morning's case of Board of Education v. Earls.You know who you are. The smack-snorting hooligans to be found on every high-school debate squad and science fair team; those great sexy beasts playing second trumpet in band. Lift up your eyes from your Bunsen burners and your chessboards, yon nerds and overachievers: The high court wants your urine, and they have the power to take it.
In 1998, the public school district in Tecumseh, Okla., adopted a Student Activities Drug Testing Policy. The policy makes it a requirement that students wishing to engage in any competitive extracurricular activity—band, choir, Future Homemakers of America—submit to random drug tests throughout the year. Two students challenged the policy as an unconstitutional infringement on their Fourth Amendment right to be free from warrantless searches. The named plaintiff, Lindsay Earls, wanted to be in the choir and the marching band. Bad seed, that Lindsay; that's clear already. The Oklahoma district court found the school board's policy permissible. The 10th Circuit Court of Appeals reversed and found for the students.
Not so very many years ago, the framers of the Constitution thought it might be a good idea if the state needed a warrant to search you. In 1985, the Supreme Court decided, in New Jersey v. T.L.O.,that with a reasonable suspicion of wrongdoing, students may have a lesser expectation of privacy than adults. Ten years later, in 1995, the court decided Vernonia School District v. Acton—a case that upheld an Oregon school district's policy of randomly drug-testing student athletes without any individualized suspicion that they were drug users. And while in Vernonia the high court effectively did away with the need for particularized suspicion, it still tethered its decision in what's called the "special needs" exception to the warrant requirement. The special needs doctrine carves out a handful of situations in which it's impractical to get a warrant before searches—usually because there's no time or it's too dangerous. With the special needs doctrine, the court has upheld suspicionless drug-testing of railroad personnel involved in train accidents in Skinner v. Railway Labor Executives' Association and random drug-testing of federal customs officers involved in drug interdiction in Treasury Employees v. Von Raab.
When the Supreme Court, by a 6-3 vote, upheld the random drug-testing of athletes in Vernonia,it pretended there was an equally urgent "special needs exception" to the warrant requirement in schools. The problem—and here I quote from Justice Scalia's majority opinion—was that in the sleepy logging town of Vernonia, Ore., "[s]tudents began to speak out about their attraction to the drug culture, and to boast that there was nothing the school could do about it. ... Students became increasingly rude during class; outbursts of profane language became common. Not only were student athletes included among the drug users but, as the District Court found, athletes were the leaders of the drug culture." So the court upheld the random drug-testing policy (a policy in which a male teacher watched boys' backs while they peed; girls got to use a stall) by asserting that these kids were out of control, that student athletes were ringleaders, and that this was no more invasive a search than "any reasonable guardian and tutor might undertake."
Maybe in the Scalia household they make you pee into a cup just for being alive. At my house, you had to total the car first.
Linda Meoli argues for the Board of Education. She tries to say that the Tecumseh school district's policy is no different from the policy in Vernonia, but Justice O'Connor points out immediately that this policy reaches many more students and that there was no evidence of a drug problem in Tecumseh. Justice Souter observes that in reports filed by the school board with the federal government, the board repeatedly said it had no significant drug problems. He adds that the school's own drug-testing confirmed this when 505 tests turned up only three instances of drug use.
Justice Rehnquist cuts in to say that maybe there were only three instances of drug use because the drug-testing was such a great deterrent. Of course, that means that the program is fantastic either way: as a remedy had there been lots of evidence of drug use, a brilliant deterrent when there's none. Oh, bravo!
Souter wonders again about the lack of any documented drug problem in the Tecumseh schools. Scalia points out that in "special needs" cases, you needn't show that a particular school has a drug problem; it's enough to show a nationwide drug problem. Souter stops him right there: "I thought the opinion in Vernonia repeatedly emphasized the problem with athletes. They were looked up to. There was a rampant disciplinary problem." Souter wonders if all that "special needs" talk was in fact a big honking smokescreen; for Scalia, the fact that there's a national drug problem is enough to justify testing both school athletes "and every child in every school in the U.S."
Justice Ginsburg makes the obvious point (and here I paraphrase) that students involved in extracurriculars are probably less likely to be pot-heads than the guys who hang around under the bleachers, smoking pot and listening to music made by people who used to do the same. Put bluntly, why are we singling out the pompom girls instead of the stoners in the alley? Meoli helpfully responds that they'd love to test everyone, but it would be unconstitutional. Scalia stops her right there. He thinks it would be constitutional to do that, too.
Stevens, who dissented in Vernonia, is surprisingly tranquil about the Tecumseh plan because, as he points out, there are no real consequences for students who test positive; they merely have to go off to counseling and, after three positive tests, must give up the extracurricular for a year. It's odd that he's so tranquil about hauling even those good kids out of class to pee into a cup.
When did our schools become vast public urinals?
Deputy Solicitor General Paul Clement sides with the school board and the urine in this case. His main argument is that these drug tests are constitutional because they apply "only to avoidable activities." Forcing all students to pee violates the Constitution. Forcing only the marching band to do it represents a "choice." O'Connor registers her disgust at the stupidity of singling out these kids. "It's counterintuitive," she announces. "It's absolutely odd."
Scalia shuts her down by querying whether there's "any school in the country that doesn't have a drug problem." (There is that Montessori preschool up my street with those tragic Play-Doh sniffing accidents ...)
Souter again asks the question, where is the "special need" here? This isn't like the danger of untested railway workers or customs officers. (The Board of Education has argued in their briefs that the danger lies in stoners handling heavy band equipment and wrestling livestock. Apparently the dangers lurking around a live Bunsen burner in chem lab are less worrisome than those ugly tuba pile-ups at Homecoming.)
Finally Graham Boyd from the ACLU argues on behalf of Lindsay Earls, the girl who just wanted to sing in the Tecumseh choir. For an ACLU guy, Boyd spends an astonishing amount of time either apologizing to the justices or backing down from positions he's taken, generally casting doubt on his certainty about his own rights to free expression. It doesn't matter. At least six of the justices before him today are pretty clear about their intention to uphold the policy. Kennedy makes it clear that if students are offended by the school's anti-drug policy, they can avoid extracurriculars. Breyer can't really differentiate this case from Vernonia. Rehnquist and Scalia are unequivocal that in loco parentis (i.e., your parents are idiots) carries the day here: Schools are, to quote Scalia, functionally "prisons. You can keep them after school if they haven't done their homework." In short, kids have no more rights in school than they'd have if their own parents wanted to drug-test them at the dinner table.
Of course, there is an argument to be made that parents who subject their good, achieving kids to unfounded, humiliating random urine tests are freaks. But that's not the court's position. The court thinks there's a drug problem in this country. True. And something needs to be done. Also true. And the court thinks it's not the fault of the government or the utter failure of its war on drugs. The failure, therefore, must be with those punks in the glee club. So, even if it's paternalistic and unfounded to deter (aka "control") good students with widespread terror and humiliation, they are, after all, merely "prisoners."
Expect a decision in Earls by summer.