Fighting the Scourge of Drug-Impaired Scrapbooking

The ACLU of Pennsylvania is reviving a challenge to the Delaware Valley School District's drug testing policy, which requires all students participating in extracurricular activities to supply an initial urine sample and agree to random screening thereafter. The plaintiffs are Glenn and Kathy Kiederer of Shohola, who were surprised by the paperwork their 12-year-old daughter brought home after she signed up for her school's scrapbooking club:

"I feel I'm being coerced into signing this paper," Glenn Kiederer said Monday during a hearing in Pike County. "To drug test at this age makes it normal for them. If it's normal, when they have children, what will be normal for them? A chip in your arm that tracks where you go?"

In 2002 the U.S. Supreme Court upheld a similar policy, enforced by an Oklahoma school district, against a Fourth Amendment challenge, ruling that a general concern about drug use by teenagers was enough to render the suspicionless searches reasonable. But the following year, the Pennsylvania Supreme Court ruled that the state constitution's privacy clause (Article I, Section 8) is more demanding. In response to an earlier lawsuit challenging the Delaware Valley School District's drug testing program, it said the district had to do more than invoke the specter of drug-addicted children:

We agree with the Commonwealth Court plurality and concurrence below that the means chosen by this District to effectuate [its drug-free school policy] are unreasonable given the heightened protection of privacy under the Pennsylvania Constitution….

The District did not suggest that there is a specialized need to test for drugs and alcohol because of an existing drug or alcohol problem in the District, much less a problem that is particular to the targeted students. Moreover, the statement of purpose accompanying the policy recites nothing specific to the District, or the targeted students, but instead relies upon the importance of generally deterring drug use among students. The statement of purpose does note that there is some safety-based reason to single out athletes and student drivers, since drug or alcohol impairment when engaged in such activities may "risk immediate physical harm."? As to other extracurricular participants, however, the only explanation given is that those participants, like athletes and drivers, are "student leaders and, as such, serve as role models for their peers." These students, it appears, have been selected for testing for symbolic purposes—i.e., their privacy rights are deemed forfeit so as to set an example for other students….

The District at this stage of the matter has offered no reason to believe that a drug problem actually exists in its schools, much less that the means chosen to address any latent drug problem would actually tend to address that problem, rather than simply coerce those students who would have the most to lose if they violated or challenged the policy.

The court therefore allowed the lawsuit to proceed, but the plaintiffs dropped it after their daughters graduated from high school. The Kiederers are picking up where they left off, and it sounds like they have a good chance of winning, unless the Pennsylvania Supreme Court decides that the hazard of drug-related paper cuts is sufficent grounds for making 12-year-old girls submit to random urinalysis.

More on state court challenges to student drug testing here and here. Earlier this month I noted Florida Gov. Rick Scott's anxieties about the purity of bodily fluids. In a 2002 Reason article, I explained how the government encourages private-sector drug testing.