Off The Record: Testing for Drugs, Witches, and Leftover Milk
by Gary Natriello - 1995
In its recent decision in the case of the Vernonia School District v. Acton, the U.S. Supreme Court upheld the right of a local school district to require student athletes to submit to random drug testing as a condition of being allowed to play interscholastic sports. The case involved a policy developed in response to teacher and administrator observations of a sharp increase in drug use in the late 1980s. The policy requires students participating in sports to sign a form consenting to the testing-and to obtain the written consent of their parents. All athletes are tested at the beginning of the season, and once each week of the season 10% of the athletes are selected for testing by having their names blindly drawn from a pool by a student under the supervision of two adults.
Writing for the six-judge majority, Justice Antonin Scalia argued that the policy was reasonable and therefore constitutional. First, he argued that privacy rights were less for schoolchildren than for others and even less in the case of student athletes who by choosing to join a team voluntarily subject themselves to even more regulation than students in general. Second, he argued that the policy served the school districts important and perhaps compelling interest in deterring drug use. Writing for the minority, Justice Sandra Day OConnor noted that mass searches conducted in the absence of particular suspicion have generally been deemed unreasonable and that the collection and testing of urine, compelled and monitored by the state, is both destructive of privacy and offensive to personal dignity.
In his recent book, Testing Testing: Social Consequences of the Examined Life, F. Allan Hanson describes the test for witches employed in the fifteenth, sixteenth, and seventeenth centuries.1 The procedure, known as swimming a witch, involved tying a suspects right thumb to left big toe and left thumb to right big toe and then lowering the suspect into the water with a rope tied around the waist. The test was repeated three times, and floating was taken as proof of witchcraft, though Hanson notes that in southwest Germany in the 1640s, sinking was interpreted as the sign of guilt.
The two cases are not quite parallel. Although both are attempts to deal with threats to the community from agreed upon evils (drugs and witchcraft), both involve community participation (the blind drawing by a student and the escorting of the suspect to the water), and both are relatively intrusive (the collection of urine and the tying and dunking in water), there are differences. In the case of testing for witches the test was applied only to those suspected of practicing witchcraft. The Vernonia School District has adopted, and the U.S. Supreme Court has ruled constitutional, a policy which applies drug testing to all student athletes regardless of whether there is any prior reason to suspect them of drug use.
The policy upheld by the Supreme Court in the Vernonia case, if implemented in school districts more broadly, threatens to damage the very kind of community interests that the policy intends to reinforce. Such threats take a variety of forms. First, they involve the relationship between educators and those students in their care. Teachers and students can and often do form close working relationships as they pursue common interests. Such working relationships and the trust that they breed are a particular benefit of student and faculty participation in interscholastic athletics. But a policy that makes the school the venue for what is essentially a police action and educators enforcement agents for drug laws creates a climate in which the growth of trust is unlikely. Enactment of the policy demeans the student athletes are who are tested without suspicion and diminishes the incentive for students to behave in ways that place them above suspicion. It also compromises the role of educators, preventing them from demonstrating to students that they can be deemed trustworthy.
Second, the policy of requiring parental consent to random drug testing as a condition of participation in interscholastic athletics poses a serious threat to the relationship between students and parents. Parents who refuse to grant their consent are cast as obstacles to student athletic participation, with immediate negative consequences for both students and parents. Perhaps more seriously, parents who grant their consent can only be viewed in the longer term as concurring in the school districts lack of trust in their children. The policy of requiring parental consent to an act demeaning to the character of their children as the price for allowing students to participate in what might be very beneficial to school-sponsored activities places parents in an untenable situation. No matter what parents do, the outcome is likely to be a weakened relationship with their children.
The third relationship threatened by the implementation of the drug testing policy is the relationship between a students deeds and word that is at the very heart of the kind of personal integrity that parents and schools should try to instill and students should strive to develop. Drug testing elicits information on drug usage that students know and could be asked. Random drug testing in the absence of prior suspicion most assuredly does two things: it reveals whether a student has used drugs and it devalues the word of each student subjected to the testing. It is difficult to teach students the value of their word if no value is placed on it by the adults and institutions around them. The lesson of random drug testing without prior suspicion is the lesson of the insignificance of ones word, ones personal integrity. It is a lesson not easily forgotten.
In the spring of 1961 I was nearing the end of third grade, a year when I had the great good fortune to be taught by a wonderful creative and dynamic teacher who, even in hindsight it seems, must have invested a great deal of energy in preparing lessons. One day this third-grade class was confronted with a dilemma. Each day after our mid-morning snack we would dispose of our empty milk boxes in a large galvanized tub-set out by the custodian only for these containers. Students were to drink all of their milk and place only empty boxes in the container. On this particular day the custodian reported to the teacher that someone had placed a container half-full of milk in the tub, and it had subsequently run from the box and dirtied the entire tub.
The teacher asked for the student who had left milk in the box to come forward, but no one did. After several more such requests, the teacher announced that she would conduct a test, a scientific procedure to identify the offender. She lined everyone up in front of the room. When we were all standing in a line, she began at one end checking pulses by placing her fingers against each students wrist. As she checked the first few students she explained that the guilty student would have a fast pulse. Standing about in the middle of the line of students, I remember wondering whether the culprit was in front of me or behind me and really just wanting the event to be over. As the teacher moved down the line, student after student in front of me was exonerated and-allowed to sit down. The teacher seemed to have no difficulty determining the innocence of these students. As my turn drew near I began to wonder which of the students after me in line would be caught. I never found out, because in another minute the teacher had checked my pulse, determined that it was fast, and concluded that I had left the half-full box in the tub. The test was over, those after me in line were never examined, and I was never directly asked if I had done the awful deed. I do not recall what happened next; I do not remember the punishment; apparently I will always remember the test.
Justice Scalias opinion for the majority includes the argument that legitimate privacy expectations are less for student athletes than for other students because school sports, which require students to use public locker rooms to change and shower, are not notable for their privacy. But the issue of the violation of physical privacy by the collection of urine in the absence of prior suspicion is less important than the violation of the personal integrity of those not previously suspected of drug use entailed in rejecting their word, indeed in not even considering their word and previous deeds as legitimate sources of information.
The Supreme Courts decision is justified in part by the threat posed to student athletes, other students, and the entire educational process by drug use. Districts considering policies such as that of Vernonia should weigh the threat posed by the policy itself to the relations between students and staff, the relations between students and parents, and to the development of student personal integrity.