WHEN LINDSAY EARLS SET OUT IN 1999 TO challenge her high school's
policy of drug testing students who participate in extracurricular
activities, she did so with the support of the American Civil Liberties
Union, her parents and the tacit approval of many of her teachers. But
as in every high school, a few people try to ruin it for everybody: On
the ACLU's Web site, which features a portrait of Earls' fresh-scrubbed
family, the now 19-year-old Dartmouth freshman reports that as her suit
garnered publicity, some of her fellow students began taunting her
younger sibling, Lacey, saying, "Your sister is a pothead."
I was reminded of those kids when I read reports of the U.S. Supreme
Court's arguments on the matter last Wednesday, dominated by the
sarcasm-laced commentary of Justices Anthony M. Kennedy and Antonin
Scalia: Speculating on how parents would choose schools if they had a
choice between one that tested students for drugs and one that didn't,
Kennedy declared that, "No parent would send their child to the druggie
school -- other than perhaps your client."
When ACLU lawyer Graham Boyd objected that Earls' former school
district, in Tecumseh, Oklahoma, had no observable drug problem, Justice
Scalia replied, "So long as you have a bunch of druggies who are orderly
in class, the school can take no action. That's what you want us to
rule?"
The shared use of accusatory slang like druggie might appear unseemly
for a pair of Supreme Court justices. But it's also appropriate, because
the Supreme Court's rhetorical style serves as a useful indicator of the
tenor of discourse surrounding drug policy in the U.S. over the past two
decades. In the place of reason and compassion, there is ridicule and
scorn; instead of an effort to diagnose and address what drug problems
exist, there is an increasing dependence on simplistic and punitive
solutions to imagined crises. The schools, declared Scalia, are only
"trying to raise these young people to be responsible adults." Compare
that to the Supreme Court of 1943, which, in the landmark flag-salute
case West Virginia Board of Education v. Barnette, called for
"scrupulous protection of Constitutional freedoms of the individual, if
we are not to strangle the free mind at its source and teach youth to
discount important principles of our government as mere platitudes."
"IT'S ASTONISHING TO SEE HOW WHAT SHOULD be sound legal reasoning has
been distorted by drug-war rhetoric," says Ethan Nadelmann, executive
director of the Drug Policy Alliance. "I suspect that a generation from
now we'll look back on this term druggie in the same way we now regard
bigoted terminology we've heard in past historical cases."
In fact, says Nadelmann, the court is so far removed from the reality
of high school drug use that most reputable studies have been rendered
irrelevant to the debate. Lower courts have proved more rational: While
the Tecumseh school board prevailed at the district court level, the
U.S. 10th Circuit Court of Appeals reversed the decision, concluding
that random drug testing without clear "special needs" is
unconstitutional. But no one seems to believe the Supreme Court will
rule in favor of Lindsay Earls, despite her having elicited amicus
briefs from such disparate sources as the American Academy of Pediatrics,
the National Education Association and the Rutherford Institute,
erstwhile legal benefactor to Paula Jones in her case against Bill
Clinton. The court is widely regarded to have taken on Earls v. Tecumseh
to clarify the confusion left behind after Veronia v. Acton, a 1995
decision that legitimized mandatory suspicionless drug testing of high
school athletes in Veronia, Oregon, and that 6-3 vote is likely to be
repeated on Earls. So while justices Ruth Bader Ginsberg and Sandra Day
O'Connor described the Tecumseh school board's drug-screening policy as
"odd" and "counterproductive," and Justice David H. Souter warned of a
slippery slope toward drug tests for all high school students -- an
outcome the Bush administration explicitly wants -- when the court
renders its decision in late June, it's likely to extend high school
drug testing to all sorts of circumstances. To advocates of drug-policy
reform, this portends disaster. "A U.S. Government survey showed that 50
percent of high school seniors have tried drugs by the time they
graduate," says Nadelmann. "The consequence of stigmatizing young people
for experimenting with drugs can be far more harmful than the drug use
itself."
In the wake of the Veronia decision, an economics professor named
Robert Taylor published an article in the winter 1997 issue of Cato
Journal, in which he literally did the math: Taylor, who was then on the
faculty at San Diego State, formulated equations to prove that, as
students drop out of sports participation fearing drug tests, more
teenagers will be at risk for drug dependence and addiction. "Drug
testing, by invading the privacy of student athletes and by making
continued drug use difficult or impossible, increases the cost of
athletic participation and will most probably lead marginal student
athletes to quit the team," Taylor wrote. "Freed from the regimen of
athletics, these former athletes may revert to the drug-use patterns of
their nonathlete peers -- who have higher rates of drug usage than
athletes." In other words, a decision in favor of the school board on
Earls may spawn as many "druggies" as it deters -- perhaps in the form
of latchkey alcoholics who will remain under the radar of the qualified
professionals who might have been able to save them.
In the meantime, those who worry about a U.S. drug problem might turn
their attention to the 80 percent of drug-abuse deaths that occur in
adults over the age of 25, many of which involve overdoses of
prescription drugs, or alcohol in combination with other drugs. That's
not, of course, what Justice Scalia meant when he referred scornfully to
a "drug culture." "If the U.S. has a drug culture," says Nadelmann,
"maybe it has something to do with the millions of people taking
pharmaceuticals for everything from anxiety to shyness." And to the
extent that high schools have a drug culture, "maybe we ought to count
the millions of kids on Ritalin." Or maybe someone ought to ask Scalia
and Kennedy, while they're clarifying our Constitution for posterity, to
tell us what exactly they mean by druggie.
____________
Report by Judith Lewis, LA Weekly: March 29 - April 4, 2002 .
http://www.laweekly.com/ink/02/19/news-lewis2.shtml
home
