WASHINGTON, March 19 (UPI) -- The Supreme Court spent a sometimes emotional hour Tuesday hearing argument on whether schools can force students in extracurricular activities to take drug tests.
Throughout the hearing, individual justices appeared to be arguing with other as well as jousting with the attorneys representing each side.
Justice Anthony Kennedy even drew gasps from the spectators when he appeared to personally attack the student who first challenged the Oklahoma school policy of drug testing students who want to participate in extracurricular activities.
The student, Lindsay Earl, now a 19-year-old freshman at Dartmouth, was sitting in the courtroom with her parents.
Kennedy posed the problem of one high school that had drug testing and another, "the druggie school," that didn't.
"Every parent" would want to send his or her children to the first school, Kennedy said, but added dismissively, "Well, perhaps not your client."
In 1995's Acton vs. Vernonia, a Supreme Court majority ruled that schools could drug test student athletes -- but only student athletes -- and only when the school districts had identified an ongoing drug problem.
From the bench Tuesday, Justice Sandra Day O'Connor repeatedly challenged the Oklahoma school policy for going beyond Vernonia's restrictions.
O'Connor pointed out that for years before it instituted the drug test policy, the school district had been telling the federal government in annual reports that it had no real drug problem.
In fact, O'Connor said, evidence in the case suggested that students participating in extracurricular activities were less likely to use drugs than those who were not.
"It seems so odd to leave those students untested," O'Connor said. "It's counter-intuitive, isn't it?"
Later she added, "This is a school that certified to the federal government that it did not have a drug problem. I mean, the whole thing seems odd."
The case before the justices comes out of Tecumseh, Okla.
Tecumseh High School offers a broad variety of extracurricular activities, including band, choir, color guard, Future Farmers of America and Future Homemakers of America.
Besides students in those activities, the random drug testing included students in athletics, cheerleading and the pompon squad.
The school is in a rural area about 40 miles from Oklahoma City.
"The traditional six-hour day has all but vanished in our society," the school board told the Supreme Court in a petition.
"Students are now engaging in activities on campus before classroom instruction begins, after classroom instruction ends and on weekends," the board said. "Students are also often off-campus, traveling to other towns, cities and states, enjoying the benefits of the additional opportunities offered by (the school district) and other public schools throughout the nation."
As extracurricular activities grow, so does the school's responsibility, it said.
The board's petition said there was a "long-standing problem of drug-use among students" in Tecumseh's school district. In response, school officials have used "surveillance cameras, drug education, drug dogs and increased security personnel," but drug use "has not been eliminated."
The school board first discussed random drug testing of students during the 1997-1998 school year. The program actually began in September 1998.
However, not everyone supported the plan.
Three students and their parents filed suit in federal court against the testing in 1999. The students didn't include athletic teams in their challenge since the Supreme Court approved random testing of school athletes in 1995, saying the athletes had already given up much of their privacy in the locker room anyway.
Relying on the Supreme Court's 1995 precedent, a federal judge ruled for the school district. Then a federal appeals court panel, relying on the same Supreme Court decision, reversed the judge 2-1.
The appeals court said 1995's Acton vs. Vernonia required the courts to balance competing interests.
The school district had a compelling interest in stopping the student use of drugs. The students had a compelling interest in maintaining their privacy. Moreover, the Fourth Amendment bans "unreasonable" searches.
The appeals court said the school district just hadn't done its homework.
"Any district seeking to impose a random suspicionless drug testing policy as a condition to participation in a school activity must demonstrate there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, (to) such (an extent) that testing that group of students will actually redress its drug problem," the appeals court majority said.
The school district then asked the Supreme Court for review, saying the appeals court ruling violated high court precedent, including Vernonia, and "the issue ... is of major importance not only to (Tecumseh) but to all public schools in the nation which are responsible for the safety of the students under their supervision on a daily basis, and must address drug use which threatens their safety."
Speaking for the school during Tuesday's argument, Oklahoma City attorney Linda Meoli said the drug testing was "a reasonable response to drug use."
Meoli came under instant attack from Justice David Souter, usually the mildest member of the Supreme Court.
What about those annual reports to the federal government from school officials, Souter asked, "were they lying?"
The schools told Washington it didn't have a problem before the drug testing began, and so far only four students have tested positive for drugs, Souter said.
"I don't see how you don't lose," Souter said, "whether we look at it ex ante (from before) or ex post (afterwards)."
Souter's poking from the bench became so sharp that at one point Chief Justice William Rehnquist intervened, saying, "Let her answer the question, will you?"
The Bush administration supported the school's policy. Deputy Solicitor General Paul Clement told the justices, "A school district that reasonably concludes it has a drug problem may restrict (access to) competitive extracurricular activities without violating the Constitution."
Clement even went beyond Meoli's stance. Meoli said the school district specifically rejected testing all students in the system. Clement said the administration believed testing all students was constitutional.
Speaking for Lindsay Earl and other challengers, New Haven, Conn., attorney Graham Boyd of the American Civil Liberties Union repeated tried to tell the justices that there was no drug problem at Tecumseh, and therefore the testing program was an unreasonable search under the Fourth Amendment.
But Boyd ran into considerable opposition from Kennedy and Justice Antonin Scalia.
"These are minors," Scalia said. "There's a world of difference as to what the state can do (as opposed to) adults."
Kennedy asked Boyd why the Supreme Court should accept his assessment of situation over that of the school board, which was expressing the majority opinion of parents.
"The Fourth Amendment turns on reasonableness," Boyd replied. "It's not a majority rule argument."
Later, on the Supreme Court plaza, an apparently emotional Lindsay Earl told reporters, "I don't use drugs. I shouldn't have to prove that."
The Supreme Court should rule in the case within the next several months.
(01-332, Bd of Ed, Pottawatomie County vs. Earls, Lindsay et al)
