The Mortarboard, the Sheepskin, and the Dixie Cup

Nothing was normal on the morning of Wednesday, November 5, at Stratford High School in Goose Creek, South Carolina. For one thing, there were no drugs in the school. If there were, the fourteen police officers plus one drug-sniffing dog should have found them when they swept into the school, guns drawn, and sent students sprawling against their lockers and on the hallway floors. Some students were handcuffed, others covered with guns. A stocky officer dressed in blue jeans with a Kevlar vest over his T-shirt grabbed an African-American boy off the floor, spinning him in a 180-degree arc and slamming him back to the floor. The surveillance video that captured this scene, despite its jerky, stop-motion quality, shows a bit of swagger as the officer walks away. Stratford Principal George McCrackin had reported “an influx of drug activity,” though police found no drugs or weapons.

The video clip, widely aired around the country last fall, got the attention of school administrators and parents but only, it seems, for a couple of weeks. Though it is destined to become classic footage from the war on drugs, it no longer truly shocks. On one hand, local communities have always used public schools as a crucible for social activism. On the other, the federal government tends to pursue policy goals in schools, in the name of its educational mandate, that have rarely been achieved in the extracurricular world. Between the two, the force of the law tends to land on schoolchildren with surprising regularity.

In 1963, Alabama Governor George Wallace famously blocked an entrance to the University of Alabama with his own person to prevent the scourge of black scholarship. Six years before that, Arkansas Governor Orval Faubus called on the National Guard to prevent the entry of nine black students into Little Rock’s Central High. The U.S. Army was then deployed to forcibly desegregate schools (though the GIs didn’t stick around to combat mortgage redlining and other forms of discrimination that persisted outside public schools for years afterward).

Now, under the flag of drug prevention, dogs and feds are back at the schoolhouse door. And this time they brought specimen cups. Urine testing of students to detect drug use has now begun to march across the U.S., with new support from the Bush administration. The decision that opened the doors to testing without suspicion originated in Oklahoma. In 1999, a student named Lindsay Earls took umbrage when, in order to remain in her school choir, she was required to produce a urine sample under the supervision of school faculty. She was not suspected of drug use, but the school board had implemented a policy that required testing of students participating in all extracurricular activities. With counsel from the American Civil Liberties Union, Earls challenged the policy and scored a victory in the Tenth Circuit. But on June 27, 2002, the U.S. Supreme Court decided in favor of the school district. To many concerned about civil rights, this decision marked the sudden and complete expulsion of the Fourth Amendment from public schools.

Fourth Amendment protections against unreasonable searches have eroded gradually in public schools for about eighteen years. Back when Nancy Reagan was urging kids to Just Say No to drugs, the U.S. Supreme Court just said no to probable cause. In 1985, the justices decided against a New Jersey high school student who argued that getting caught smoking cigarettes did not constitute probable cause to search her purse. The court held that “The Fourth Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials and is not limited to searches carried out by law enforcement officers. Nor are school officials exempt from the Amendment’s dictates by virtue of the special nature of their authority over schoolchildren.” While this upheld a portion of the Fourth Amendment, Justice Byron R. White went on to state that “school officials need not obtain a warrant before searching a student who is under their authority. Moreover, school officials need not be held subject to the requirement that searches be based on probable cause…” This deletion of warrant and probable cause left only the more subjective barrier of “reasonableness” between students and searches.

A further erosion of the Fourth Amendment came in 1989. The Veronia school district in Oregon had decided it was reasonable to test the urine of athletes, regardless of individual suspicion. With probable cause no longer a concern, Justice Antonin Scalia found abundant justification for random drug testing because “in small town America, school sports play a prominent role in the town’s life, and student athletes are admired in their schools and in the community.” Apparently, admiration of these athletes declined when, in Justice Scalia’s words, “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.”

Justice Scalia agreed that the student body at large needed protection from the decadent-yet-admired athletes, and found it easy to dispense with the privacy expectations of the unruly jocks. He did this by reaching back past the Fourth Amendment to a legal source from eighteenth-century England, in which Sir William Blackstone wrote that a parent may “delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis…” In this case, however, the parents of student James Acton had declined to delegate authority over his bladder to the school. Nevertheless, again citing “reasonableness,” the court decided in favor of the school.
So by 2002, the reasonableness of testing urine without a basis in suspicion had been well established. That’s when the case from Oklahoma appeared to test the reasonableness of the Supreme Court itself, as Justice Ruth Bader Ginsberg’s fourteen-page dissent observed: “The particular testing program upheld today is not reasonable, it is capricious, even perverse…. If a student has a reasonable subjective expectation of privacy in the personal items she brings to school… surely she has a similar expectation regarding the chemical composition of her urine.”

Writing for the majority, Justice Clarence Thomas reviewed the urine-collection procedure: “Under the policy, a faculty monitor waits outside the closed restroom stall for the student to produce a sample and must ‘listen for the normal sounds of urination in order to guard against tampered specimens and to insure an accurate chain of custody.’” While Justice Scalia seemed to prefer eighteenth-century British law to the U.S. Constitution, it’s hard not to speculate that Justice Thomas drew on personal experience in describing the process used in Oklahoma as “even less problematic” than the “negligible” intrusions in Veronia, Oregon. In the end, the court decided that if Lindsay Earls wanted to sing for the choir, she would first have to pee for the principal.

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