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Reading, Writing and Drug Tests: Two Chicago-Area Schools Enact Student Drug-Testing Policies

Paul Marcotte
The American Bar Association Journal
December 1989

Two school boards in suburban Chicago have joined the anti-drug campaign by enacting new student drug-testing policies.

The first was Homewood-Flossmoor High School, which voted to require drug tests for students involved in interscholastic activities.

In September, Willowbrook and Addison Trail High Schools went further, allowing the use of urinalysis, breathalizer, blood and lie-detector tests in student disciplinary procedures. The five-page policy permits testing for "drugs, alcohol or steroid use."

While students and their parents have to consent to the tests, students who refuse when there is "reasonable cause" to suspect drug use can be barred from "school-sanctioned activities," such as athletics or band.

However, the tests are not to be used as the sole evidence of a disciplinary violation.

Addison Trail/Willowbrook Superintendent Bob Lopatka called the school policy "another weapon in the war on substance abuse." Not all students would agree. Many of them jammed the September school-board meeting carrying signs saying, "What Constitution do you believe in?"

The school policy is part of an overall effort to reduce student drug and alcohol abuse, according to Lopatka. Other components include drug education, a student-assistance program and weekend programs intended to help students cope with personal problems.

Trendsetting Schools

There have been relatively few school districts enacting drug-testing policies, but it is an issue that will likely get more attention during the next few years, according to David Evans, a Lawrenceville, N.J., attorney and expert on drug-law reforms.

Evans suggests that some recent court decisions may open the door for drug testing in schools, at least for athletes.

A U.S. Court of Appeals last year upheld a random urinalysis drug-testing program for interscholastic athletes and cheerleaders at two Indiana high schools. (Schaill v. Tippecanoe County School Corp., 864 F.2d 1309 [7th Cir.].) The court said there was a diminished expectation of privacy for such students. It analogized to drug testing of professional and Olympic athletes.

Generally, courts have held that the educational setting may justify a modification of students' rights to provide an orderly learning atmosphere, according to Evans. School officials have been considered to be acting in the role of parents in supervising and protecting the children.
Also, searches by school officials can be based on a reasonable suspicion of improper activity rather than the more difficult standard of probable cause that police must meet. (New Jersey v. T.L.O., 469 U.S. 325 [1985].)

However, a U.S. District Court granted a permanent injunction in August against a Galveston, Texas, high school's random drug-testing program for students involved in extracurricular activities. The suit was brought by a student wanting to join the Future Farmers of America. (Brooks v. East Chambers Consolidated Independent School District, C.A. G-88-379 [S.D. Tex.].)

The court, relying on recent Supreme Court decisions covering drug testing of customs-service and railroad employees, found the justification for testing school children far less compelling.

Tough Love

Drug-testing programs combined with treatment are supported by leaders of some drug-abuse prevention groups.

Sue Rusche, executive director of Families in Action, said she favors such a "carrot and stick approach. Folks get the message that drug abuse is not tolerated."

Similarly Connie Moulton, who publishes a drug awareness newsletter in Danvers, Mass., describes student drug-testing plans in terms of diagnosing an illness. Students who are abusing drugs are not learning at school.

"If you have sick children, you get them help. It's a health issue. If they had measles or mumps we would get them checked out," said Moulton.

ACLU lawyers say they are waiting to see how the drug-testing plans will be used at the Chicago suburban schools. The organization unsuccessfully challenged the Indiana policy, but was victorious in the Texas case.

Loren Siegel, a New York ACLU lawyer, said random testing of students "blatantly violates the Fourth Amendment. Kids are being told their bodily fluids can be searched on a whim."

She said drug-testing programs are punitive and may not provide adequate due-process guarantees for students. "The health argument is spurious," said Siegel.

Some policies may be intended to help and punish students. The Addison Trail and Willowbrook policy says test results must be kept confidential, except in disciplinary proceedings. Another portion of the policy says that illegal substances will be turned over to police.

Siegel suggests that while there is a serious cocaine "crack" problem in many inner-city communities, recent surveys have shown that drug usage among high-school students has declined since the late 1970s. (See chart.)

She also noted a 1986 study by a researcher at the Human Relations Institute & Clinics in Washington, D.C., showing there are a significant number of false positive results, even after two tests, in large-scale testing of general populations. "You're going to find students falsely accused of being drug users," said Siegel.