ACLU urges ASMS to redesign drug-testing policy
Aug. 6, 2001
The American Civil Liberties Union of Alabama urges the Board of Directors of the Alabama School of Mathematics and Science to redesign its proposed drug testing policy. The board is meeting today to address implementing a mandatory drug testing policy. The policy would require all ASMS students, as a condition of enrollment, to submit to hair testing for drugs.
The ACLU believes that the ASMS drug testing policy is unconstitutional. Yesterday, ACLU lawyers met with the board’s executive committee to discuss the policy. The ACLU sent a letter on July 20 to the board of directors that discusses their concerns. Below are excerpts from that letter:
“Like the ASMS administration and Board, the ACLU is very concerned about protecting and educating Alabama’s students. We believe that the proposed drug testing policy fails to protect students and conveys the wrong message about individual rights and freedoms.
“The policy that you are considering conflicts with experts’ recommendations. Social workers and doctors reject suspicionless drug testing. For example, the American Academy of Pediatrics (AAP), the nation’s leading association of doctors that specialize in treating children and adolescents, has issued a policy statement that opposes non-suspicion-based screening for drug use among adolescents. See The American Academy of Pediatrics, Committee on Substance Abuse, “Testing for Drugs of Abuse in Children and Adolescents,” Pediatrics, Vol. 98 No. 2 (August 1996), 305-07 (policy statement). Instead of involuntary screening, the AAP recommends comprehensive evaluations by qualified health care professionals when a child is suspected of drug use. By going against the recommendations of pediatricians, the people who best know children’s health, the policy may result in harming students, rather than helping them.
“A basic function of public schools is to help students to become responsible and self-sufficient adults. Schools must teach students the basic values upon which this country was built. Among the fundamental tenets of our democracy is the principle that people, including children, are presumed innocent and cannot be arrested or searched unless there is reason for suspicion. The proposed drug testing policy would teach students just the opposite, lumping the vast majority of innocent and responsible children in with the few guilty ones. Students do not “shed their rights… at the school house gate,” Tinker v. Des Moines Indep. Community Sch Dist., 393 U.S. 503, 506 (1969), and they should not be required to do so in order to attend Alabama’s premiere math and science academy.
“Because blanket testing procedures intrude on the right to be free from suspicionless searches, courts have long forbidden such practices. The Fourth Amendment requires that searches, including drug testing, be based on individualized suspicion or a showing of special needs beyond the normal need for law enforcement. Vernonia Sch. Dist. 47 J v. Acton, 515 U.S. 646, 653 (1995). In the only case where the Supreme Court permitted any school drug testing, the policy was far more narrowly tailored than that under consideration by ASMS. Vernonia, 515 U.S. at 663. The drug testing policy in Vernonia was targeted at student athletes because playing sports while under the influence of drugs increased the danger of injury to users and other players. Id. at 662. In contrast, the policy being proposed by ASMS suggests that children are all under suspicion simply for attending school. This type of suspicionless testing treats students like youthful offenders, instead of young adults.
“The school district in Vernonia had also implemented its policy only after unsuccessful efforts to alleviate a severe drug abuse crisis, which had “reached epidemic proportions” with its athletes as recognized leaders of a disruptive drug culture. Id. at 649. Fortunately, this is quite unlike the situation at ASMS, where administrators have confirmed that the student drug problem is minor. In this context, the drug testing would be unnecessary and counterproductive. Not only is ASMS not experiencing a crisis, but also the proposed policy is not even tailored to address the minor problem that may exist.
“United States Supreme Court Justice Scalia specifically warned in Vernonia “against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts.” Vernonia, 515 U.S. at 665 (Scalia, J.). Decisions from courts from around the country further demonstrate the unconstitutionality of the policy ASMS is proposing. In the most recent case addressing students engaged in non-athletic extracurricular activities, mandatory drug testing of such students was found unconstitutional. Earls v. Board of Ed. of Tecumseh Pub. Sch. Dist., 242 F.3d 1264 (10th Cir. 2001). The Supreme Court of Colorado struck down a policy of testing extracurricular students where the activity was linked to a curricular class, ruling that requiring a drug test for the school's classes made the Fourth Amendment intrusion particularly unsupportable. Trinidad School Dist. No. 1 v. Lopez, 963 P.2d 1095, 1104-05, 1107 (Colo. 1998). Even more overtly than the policy addressed in Trinidad, the policy proposed by ASMS would make the very act of attending a public school subject to drug testing – a requirement that surely could not survive constitutional review. In the only known case where a school attempted to implement such a program, it was struck down as wholly unconstitutional. Tannahill v. Lockney Indep. Sch. Dist., 133 F. Supp.2d 919 (N.D. Tex. 2001). Suspicionless drug testing of every student in a public school has never been permitted by any court in the United States.
“The use of hair tests is especially troubling because there is a serious potential for misidentifying drug users in the student population. The Supreme Court specifically noted in its decision to permit athlete drug testing, that the reliability of the urine drug testing procedure used by the school district and that the procedure had safeguards in place to ensure accuracy and privacy. Vernonia, 515 U.S. at 650-651. Several leading scientific organizations -- including the National Institute on Drug Abuse, the agency responsible for developing the federal drug testing program -- are unconvinced that hair testing is reliable. Some of the concerns experts raise include external contaminants causing false positives and the possibility of bias because of hair color and texture. See, e.g., Hearing on Drug Testing Before The Subcommittee on Oversight and Investigations of the House Commerce Committee (July 28, 1998) (statement of Edward J. Cone, Ph.D., Acting Chief, Clinical Pharmacology Branch National Institute On Drug Abuse). The unreliability of hair testing could jeopardize the academic careers of students who are completely innocent.
“Of particular concern is the fact that there are no programs to certify laboratories that hair test for drug use. There is therefore no benchmark to gauge Psychemedics’s, or any laboratory’s, methods. Even more unsettling, it seems that Psychemedics has never released its data for independent or peer review, so there is no way for ASMS to determine whether Psychemedics’s own studies are consistent. The future of Alabama’s best and brightest students should not be threatened by an unproven procedure.
“There is yet another reason why the Board should be extremely cautious about proceeding with this proposed policy. If adopted, the policy may expose ASMS to a legal challenge that could result in significant financial liability. Unlike suits for damages, suits seeking only injunctive relief often receive only limited coverage by insurance companies. Many insurance polices will not cover the full costs of litigation in such a suit, leaving the school to bear the cost of the defense after any insurance limitation is met. In past similar situations, some schools have understood their coverage to be much higher than it actually was, and when they lost the litigation, they were left paying for fees for both their own and plaintiffs’ attorneys out of their own pockets.
“. . .The ACLU of Alabama hopes that you refrain from adopting the proposed policy in favor develop a drug abuse prevention policy that provides for the health and safety of all students while also protecting their constitutional rights.”
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