Testing for Drugs in Schools: The Constitutional Issues

Beginning in 1985, nearly five million members of the American military underwent routine drug testing, a program which continues, and which is credited with having virtually eliminated from the military the serious problems of drug abuse which afflicted it following the Vietnam war.1 That program is generally adjudged a successful one, though it has inspired remarkably little interest on the part of the mass media. In 1986, as a result of the new military program, 16 American high schools instituted random testing. Twenty-seven percent of American school principals were found to favor such testing.2

Yet, despite the fact that drug-associated homicides are now a leading, and in some places the leading, cause of death among young black males in the U.S., the movement for drug screening in the schools has gone no further. This discussion suggests that the time has come for another look at this subject, and attempts to address a number of relevant questions.

Questions and Answers

Conservatives and libertarians may differ about the necessity of the drug war. They should not, however, differ on the necessity of the rule of law. The law currently prohibits the use of illicit drugs. Enhancing adherence to the law should not thus be controversial.

Q. Why did the movement toward school drug testing stop?

A. Almost entirely because of litigation and the fear of litigation. In 1986, the Carlstadt school district in New Jersey instituted a program of drug screening for all entering students. This program was instituted in a year in which a national survey of high school students revealed that 25 percent had consumed marijuana and 10 percent cocaine within the preceding month. Within one week of inception of the program, without any adverse action having been taken against any student, suit was brought by the American Civil Liberties Union (ACLU). The ensuing adverse trial court decision, Odenhein v. Carlstadt School District (211 N.J. Super. 54; 540 A. 2d 709), was extensively publicized in two front-page articles in the New York Times. It was not appealed. In addition, the trial court ordered the school district to pay the ACLU $23,000 in counsel fees. This decision was referred to in the widely disseminated Bulletin of the National Association of Secondary School Principals in March 1987. So the word got out. A 1989 similar, lower-court decision in Arkansas was also extensively publicized, Anable v. Ford (653 F. Supp. 22).

The only other relevant litigation on this issue has involved drug testing of student athletes, as to which the majority of decided cases support testing, including a decision of the federal 7th Circuit Court of Appeals, Veronia School District v. Acton (23 F. 3d 1517). This in 1994 expressly rejected the premise of the Carlstadt case. The 7th Circuit decision was in 1995 upheld by the Supreme Court (115 S. Ct. 2386).

Q. What has the U.S. Supreme Court said about this subject?

A. By a six-to-three majority, it has upheld drug testing of student athletes, using broad language which also supports general drug testing of students. One of the six majority justices, Justice Ruth Bader Ginsburg, wrote a separate concurrence dissociating herself from this broad language. Significantly, none of the other five majority justices joined her opinion.

Several earlier decisions suggested that appropriate systems of screening or testing might be upheld. In the 1985 case, New Jersey v. TLO (469 U.S. 325),3 Justice Lewis F. Powell, Jr., for the court, applied a relaxed “reasonable suspicion” standard to school locker searches for drugs and weapons, and significantly noted: “We do not decide whether individualized suspicion is an essential element of the reasonableness standard…. [T]he Fourth Amendment imposes no irreducible requirement of such suspicion [where] other safeguards are available to assure that the individual’s reasonable expectation of privacy is not subject to the discretion of the official in the field…. [W]ithout first establishing discipline and maintaining order, teachers cannot begin to educate their students. And apart from education, the school has the obligation to protect pupils from mistreatment by other children and also to protect teachers themselves from violence….”

In another case, Michigan Department of State Police v. Sitz (469 U.S. 343, n. 8), the breath testing of adult drivers at sobriety checkpoints was upheld, notwithstanding that fewer than one percent of those examined tested positively. In National Treasury Employees’ Union v. Von Raab of 1989 (489 U.S. 686) and Skinner v. Railway Workers’ Association of 1989 (489 U.S. at 688), the Supreme Court upheld drug testing for certain classes of federal employee and for railroad workers, noting that the program provided for “no direct observation of the act of urination” and that “the combination of EMIT and GC/MS tests is highly accurate””(489 U.S. at 672).

Q. We have recently had two conservative, Republican administrations. Why didn’t they do anything in this field?

A. They preferred to begin with work-force testing, where there was no adverse lower-court case law. Then-Education Secretary William J. Bennett’s What Works: Schools Without Drugs noted that “the few courts that have considered this issue so far have not upheld urinalysis to screen public school students for drugs.”4 This may be, but few question the effectiveness of such testing. For example, the final report of a White House Conference for a Drug-Free America, published before Bennett’s book, noted: “Drug testing, as a deterrent, must be recognized as an effective mechanism for prevention. Drug testing also helps identify drug use much earlier than it can be identified through other means, and early identification means a greater likelihood of derailing drug use…. [S]ocial and peer disapproval must be brought to bear against the drug user.”5 Since April 1996, drug testing has been required on a periodic basis for the entire prison population in Britain.6

Q. Don’t the military and prisons have sanctions to apply that schools do not?

A. Of course. As General Colin Powell has noted, military personnel are voluntary enlistees, who do not want to lose their careers. By contrast, suspension or expulsion hold no terrors for many high-school students. This said, school programs are not without some teeth. These include: (a) peer pressure, which will increase as programs become established; (b) the threat of reporting to parents, some of whom, at least, will be ignorant of or disapproving of their children’s drug use; (c) the usual array of sanctions for non-cooperation in school, which have an impact on many, though certainly not all, students; and (d) the possible transfer of students not correcting their drug problem to schools for the disruptive or,7 in extreme cases, civil commitment to in-patient treatment programs.

Q. Isn’t it wrong to require testing where treatment may be unavailable?

A. Not necessarily, since the peer and parental pressure resulting from testing may have a deterrent effect. The provision of adequate drug treatment to the young ought in any case to be regarded as a first call on local and national revenues. Some forms of treatment – e.g., participation in Narcotics Anonymous – involve little or no cost and may be valuable in dealing with less firmly established addictions.

Q. Isn’t urine testing worthless if not done on a surprise basis, and aren’t there dangers of false positive results, dilution and substitution of samples, and gross intrusions on privacy?

A. All of these problems have been addressed in what are now the well-established testing programs of the military, the American federal work force and corporations. Recognized protocols exist. The most serious problem – that presented by the inability of urine testing to detect substances ingested more than a few days previously – may be obviated through increased use of hair testing, which has been found to be more reliable.8

Q. Isn’t hair testing uncertain and expensive?

A. According to George W. Andtadt, “Sample collection is easier than that for blood or urine, and is also less prone to substitution or alteration than urine…. [A] 1 1/4 inch sample of hair will permit the detection of drugs used any time in the previous 3 months.”9 Its cost in 1990 was said to be $28 to $65 per sample, and it was used in some company and parole system programs. By comparison, the cost of an EMIT urine test is $15 to $18.10 Hair testing obviates the concern expressed in 1981 by Justices Thurgood Marshall and William J. Brennan, Jr., dissenting in Doe v. Renfrew (451 U.S. 1022) that, since urination is “among the most private of activities,” testing involves “mass governmental intrusions upon the integrity of the human body.” Hair testing’s advent makes feasible many testing programs heretofore renounced, as the former drug czar in the Nixon administration, Robert Du Pont, recently pointed out.11 Discussions of the ethical problems associated with it makes clear that they are only variants of those surrounding urine testing; the main such argument, that its greater backward reach covers periods unrelated to work performance,12 is irrelevant in the school setting. Urine testing has also developed to the point that samples can be analyzed on site, without the delays attendant to use of a testing laboratory.13

Q. Aren’t there valid civil liberties concerns?

A. Certainly. As pointed out in the White House conference report, “[W]hen drug testing is conducted as part of a regular physical exam, for specific cause or as a random procedure, it should be done in a way that guarantees reliability, accuracy and confidentiality, and with a system to handle results properly.”14 There are three further concerns: (a) that results be confined to the educational system and not shared with law enforcement; (b) that they be used to refer students to treatment programs in the first instance, and to the disciplinary system or schools for the disruptive in the event of non-participation in treatment, and not used simply to detect occasions for punishment; and (c) that they not become part of a permanent record that will pursue the student later.

Q. Won’t students suffer prejudice from being identified to parents or fellow students as drug users?

A. Undoubtedly, though reasonable efforts should be made to preserve confidentiality so as not to use publicity as a form of punishment. Prejudice of this sort is the inevitable result of any sort of school discipline and may be a benefit to the student’s further development.

Q. Isn’t it overkill to inflict this on all schools and all students?

A. No one suggests that this be attempted where a system does not want it, and a case can be made for reposing discretion at the level of the school principal. As a practical matter, a period of experimentation would in any case be required; there should be no sudden leap into full system adoption.

Q. Doesn’t this overdramatize the whole subject of drugs?

A. In many schools, the subject cannot be overdramatized. Any dangers of this sort can be minimized by assimilating drug tests to the normal school medical procedures, such as hearing and vision testing and lead screening. This is particularly feasible if the need for surprise is eliminated by using hair testing.

Q. How will the government be able to afford this?

A. The more routine hair testing becomes, the lower its costs will be. Costs can be further reduced and deterrent values maintained by selecting students to be tested – either at random, by certain classes, on the basis of documented academic, truancy or disciplinary problems, or on the basis of documented, observed symptoms of drug abuse. It should be possible to draw protocols which avoid charges of discrimination.

Q. Isn’t the true answer that suggested by the ACLU and by libertarians, the decriminalization of drugs?

A. This is so only if one considers the problem as one of drug-related crime and homicide rather than drug addiction. Even if conflicts among drug sellers were eliminated and addicts were relieved of the need to commit crimes to raise money to purchase drugs, the physical and psychological effects of addiction would remain, and should be of great concern in any rationally conceived school health program. The repeal of prohibition did not abolish alcoholism. (Prohibition’s institution in 1919, however, did reduce alcoholism: In 1900, alcoholism caused 7.3 deaths per 100,000 people; by 1932, the last year of prohibition, this figure had been reduced to 2.5 per 100,000.)15

Q. Why hasn’t there been more public discussion of school drug testing?

A. David F. Musto, an historian of the narcotics problem, has observed, “The practical value of urine testing led observers to speculate that the drug tests would become a part of routine physical examinations – but that was in the 1970s, an era of drug tolerance and assumption of a right to bodily privacy with regard to drugs. In such an atmosphere, the tests did not become common.”16 More recently, however, two criminologists, Franklin Zimring and Gordon Hawkins, whose devotion to civil liberties is unquestioned, have observed, “Consider a program of universal compulsory urine testing for drugs in secondary schools patterned after the program currently in use in the U.S. military. A credible claim for public health justification based on finding out whether students are using any of a wide spectrum of legal and illegal substances and referring them to treatment and support programs that are avowedly non-punitive might pass constitutional muster, while a drug testing program aimed at suspending or expelling those with positive urine tests for illegal drugs could be viewed as overreaching either Fourth Amendment standards or the government’s obligation to protect the young.”17

Q. What should the response to this issue be in a representative large city ?

A. Simple. There should be a resolution of school authority, reading approximately as follows:

“Drug screening of students in particular schools is hereby authorized, subject to the following conditions: Screening must be requested by the principal of the school, after he ascertains that a consensus for it exists and after giving 30 days’ notice of the request to all students and parents; schools will be screened in the order that requests are received, subject to limits of available funds, which may include private contributions; the superintendent shall appoint a screening coordinator qualified in the fields of medicine or public health, who need not be a municipal employee; the principal in agreement with the coordinator shall designate the persons to be screened, who may be chosen by classes, according to objective academic, attendance or disciplinary standards, or on the basis of observed and documented symptoms of drug abuse; the coordinator shall determine the method of testing; retesting of contested results shall be provided; no testing shall be conducted at a school until the principal and coordinator have identified treatment facilities including, at minimum, narcotics anonymous chapters, in reasonable proximity thereto; positive tests suggesting current drug consumption shall be reported to students and parents and counseling and references to treatment facilities given, and such students to be subject to retesting as determined by the coordinator; students may not be subjected to discipline for positive tests, but may be disciplined or transferred for failing to provide evidence of participation in drug treatment if a positive result is repeated on retesting; the coordinator, if qualified to do so under state law, may seek civil commitment of such students to treatment facilities subject to the limitations of state law; results shall not be disclosed to law enforcement authorities or made part of a student’s permanent record; the resolution shall expire in 18 months unless renewed.”

Mr. Liebmann practices law in Baltimore City.

End Notes

[Top] 1. Associated Press, “Drug Use in the Military Down 90% Since 1980, Study Finds,” (Baltimore) Sun, August 11, 1996, p. 5A.

[Top] 2. Education Week, Sept. 10, 1986, p. 19.

[Top] 3. The initials “TLO” are the initials of a juvenile defendant not otherwise identified.

[Top] 4. William J. Bennett, What Works: Schools Without Drugs (Washington, D.C.: U.S. Department of Education, 1986), p. 54.

[Top] 5. Bennett, What Works, p. 54.

[Top] 6. A. Hewitt, “Drug Tests in Prison,” Druglink, Vol. 11, No. 3, 1996.

[Top] 7. See the program described in W. James et al., “Adolescents and Substance Abuse Testing: Consideration of Treatment Models,” Drugs: Education, Prevention and Policy, Vol. 2, 1995, p. 295; also W. James et al., “Treatment of Chemically Dependent Adolescents in an Alternative High School Setting,” Alcoholism Treatment Quarterly, Vol. 12, 1995, p. 111.

[Top] 8. S. Magura et al., “Measuring Cocaine Use by Hair Analysis Among Criminally Involved Youth,” Journal of Drug Issues, Vol. 25, 1995, p. 683; also T. Feucht et al., “Drug Use Among Juvenile Arrestees: Comparison of Self Reporting, Urinalysis and Hair Assay,” Journal of Drug Issues, Vol. 24, 1994, p. 99.

[Top] 9. George W. Andtadt, “Hair Analysis in Drug Screening,” Journal of Occupational Medicine, Vol. 32, August 1990, p. 666.

[Top] 10. State of Maryland, General Assembly, Joint Committee on Welfare Reform, draft recommendations, 1996 interim [Annapolis, Md.: Department of Fiscal Services, December 1996], p. 2; also Laura W. Murphy, Washington National Office, American Civil Liberties Union, “ACLU Calls Proposal to Drug Test Welfare Recipients a ‘False Positive,”ACLU press release, dated May 22, 1996.

[Top] 11. Robert Du Pont, 7quotOperation Tripwire Revisited,” Annals of the American Academy of Political and Social Science, Vol. 521, May 1992, p. 91.

[Top] 12. John Strang, Joseph Black, Andrew Marsh and Brain Smith, “Hair Analysis for Drugs: Technical Breakthrough or Ethical Quagmire,” Addiction, Vol. 88, 1993, pp. 163-65, 295-300.

[Top] 13. H. Kranzler et al., “Evaluation of a Point of Care Testing Product for Drug Abuse: Testing Site as a Key Variable,” Drug and Alcohol Dependence, Vol. 40, 1995, p. 55.

[Top] 14. Bennett, What Works, p. 107.

[Top] 15. Mark E. Lender and James K. Martin, Drinking in America: A History (New York, N.Y.: Free Press, 1982), pp. 136-139, 147.

[Top] 16. David F. Musto, The American Disease: Origins of Narcotics Control (New York. N.Y.: Oxford university Press, 1987), p. 276.

[Top] 17. Franklin E. Zimring and Gordon Hawkins, The Search for Rational Drug Control (New York, N.Y.: Cambridge University Press, 1989), ch. 1.

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