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Jewish World Review July 2, 2002 / 22 Tamuz , 5762

Jonathan Turley

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Just say 'no' to extracurricular activities | In a decision on Thursday, the Supreme Court spoke directly to children who are interested in experimenting with drugs. The message is clear and simple: focus all of your attention on drugs or face expulsion. This curious message is the product of a 5-4 ruling in Board of Education v. Earls, in which the Court upheld the right of high schools to compel suspicionless drug testing of any student interested in extracurricular activities. The decision by Associate Justice Clarence Thomas ensures that every child currently experimenting with drugs must now choose between making drugs their exclusive interest or going drug free with the chess club.

While the Court once insisted that children "do not shed their constitutional rights . . . at the schoolhouse gate," the relative rights of children are vastly different within the school. Past cases largely focused on lockers searches and speech restrictions. However, in the 1995 Vernonia case, the Court extended its school rulings to physical searches and allowed suspicionless drug testing of student athletes. This ruling was based in part on the obvious physical danger of students playing sports while on drugs. The image of some coked up student diving the wrong way off a high board was enough for the Court. Moreover, the Court stressed that the Vernonia school was facing an "epidemic" of drugs and athletes were the natural leaders of the "drug culture."

For the officials at the Pottawatomie school district in Tecumseh, Oklahoma, this was not nearly broad enough. The school decided to test any and all students engaged in extracurricular activities ranging from yearbook staff to the academic team.

Of course, it is hard to imagine the danger of a high student in such non-athletic activities. While the chess coach may be highly suspicious why Junior used the Queen's Gambit as an opening move, the opposing player is probably safe from the immediate harm.

Moreover, where the Vernonia school documented a student population in "a state of rebellion . . . fueled by alcohol and drug abuse," Tecumseh high school filed annual reports that drug use was not a problem at the school. School officials testified that only three high-school students out of a class of 243 tested positive for drugs in a two-year period. Notably, all three played sports.

Justice Thomas, however, removed these factors as prerequisites for suspicionless testing for high schools across the country. While the Court repeated its privacy concern over "an excretory function," it found drug testing to be unintrusive at the school. The Court noted that a teacher can require all students to reveal what prescriptions they are taking and then stand outside of a stall to "listen for the normal sounds of urination" - each student is expected to make such normal sounds to the satisfaction of the teacher. Abnormally sounding students apparently face repeated testing until either teacher satisfaction or physical dehydration brings the testing to an end.

In her concurrence, Justice Sandra Day O'Connor noted that this new ruling was not so bad since students can simply decline to participate in any extracurricular activities. It is the dream of every high-school deadhead: just say no to extracurricular activities. After all, extracurricular activities were often used as the very means to lure students away from the drug culture. The decision will now free up time for an exclusive commitment to the drug culture and build peer identification with those pledging to live "activity-free."

Notwithstanding O'Connor's assurance, the decision seems to invite the next step for those school officials longing for total Ashcroft-era powers: require students to take at least one extracurricular activity. Students would then be subject to expulsion not for refusing drug tests but for failing to comply with the activity requirement.

It is often said that we learn to be citizens in high school. With decisions like Earls, it is not hard to imagine the lessons of citizenship being taught to our children. If our schools become a learning ground for personal submission and collective monitoring, our children will replicate these lessons as citizens. The increasing levels of surveillance and monitoring in our lives have already created a type of fish-bowl society that would have been unthinkable a generation ago. As the "expectations of privacy" decline further with this new generation, we may find that the exceptions allowed for our schools today become the rule for our society tomorrow.

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JWR contributor Jonathan Turley teaches constitutional law at George Washington University. Comment by clicking here.

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© 2002, Jonathan Turley