THE YEAR is 1969. Supreme Court Justice Abe Fortas writes the majority opinion in the case of Tinker v Des Moines, in which the Court decided, by a 7-2 margin, that it is unconstitutional to deprive public school students of their freedom of speech. After all, Justice Fortas writes, "it can hardly be argued that students shed their constitutional rights ... at the school-house gate."
Fast-forward 33 years, and Justice Fortas' successors are arguing exactly that. Last week, the Court effectively said that public schoolchildren have no Fourth Amendment rights from unreasonable search and seizure. In the decision Board of Education of Independent School District No. 92 v Earls, handed down last week, the Court ruled that randomly testing students in such activities as choir and Future Farmers of America for drugs is not an unreasonable search under the Fourth Amendment. The Earls decision is a bad one because of the constitutional principles it ignores, the faulty policy it puts in place, and the dangerous message it sends to the students whose rights it violates.
As complicated as the Fourth Amendment is, it seems fairly clear when it comes to this issue. It is supposed to ensure that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause..." The Fourth Amendment is clearly violated when random drug tests are forced upon a student because there is no evidence or probable cause to suspect him or her of wrongdoing.
The Court argued that local school officials' responsibility for the health and safety of their students can outweigh students' rights not to be searched without just cause. Let's leave aside the crazy notion that unalienable rights should be, by definition, absolute and the possibility should not exist that they can be "outweighed" by other considerations. For the sake of argument, let's say that health and safety of students can be considered when deciding whether to impose random drug tests on students. That's what the Court's majority argued in the Earls case, basing their logic on a 1995 ruling in which they allowed the testing of student athletes because drug use was prevalent among them and because the Court thought athletes' drug use could increase the risk of injury.
Even when applying the logic of the 1995 case to Earls, the Supreme Court's decision to subject students involved in activities like chess club, cheerleading or debate team to drug tests still doesn't hold up. As Justice Ruth Bader Ginsberg argued in her dissent in Earls: "Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are not safety sensitive to an unusual degree." The school board of the Earls case also has failed to demonstrate that there is an extensive drug abuse problem at the school that would, under the court's 1995 decision, warrant random testing.
The decision is no more wise or useful when one lays aside the constitutional questions and evaluates the decision on the merits of the policy it will put in place. The purpose of the random drug testing policy is to cut down on illicit drug use. However, research shows that the students to be tested - those who are motivated enough to be involved in extracurricular activities - are the ones least likely to be using drugs. Furthermore, as Justice Ginsberg wrote in her dissent, the policy falls short of its aim to deter drug use by "steering students at greatest risk for substance abuse away from extracurricular involvement that potentially may palliate drug problems."
The decision is, furthermore, injurious in a way that goes beyond the constitutional and policy problems it poses. Public schoolchildren are taught that the Bill of Rights is something to revere: It is, essentially, the Ten Commandments of America's system of government. But students may have a hard time taking their teachers completely serious. Why, after all, should they fully believe that certain rights are unalienable, guaranteed to all citizens by their government, when first-hand experience teaches them otherwise?
As news of the Court's decision filtered to local public students last week, the students argued that their schools had no right to test them without just cause. "Since we're going into adulthood, we should be treated like adults," a fifteen-year-old Prince George's County student said ("Schools uneasy on random drug tests," The Washington Post, June 28). At the very least, these students should be treated as human beings who possess certain unalienable rights, and as citizens of a country that once made it its mission to ensure those constitutional rights were protected.
(Laura Sahramaa is a Cavalier Daily opinion editor. She can be reached at lsahramaa@cavalierdaily.com.)
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