Trinity High School | Photo courtesy Archdiocese of Louisville
Trinity High School | Photo courtesy Archdiocese of Louisville

On May 5, Trinity High School sent a letter to parents announcing a new program to randomly drug test all students. The program, administered by Massachusetts-based Psychemedics Corp., will begin next school year.

From the outset, there is no question that Trinity can implement such a policy. Trinity is a private high school. Constitutional protections of privacy and bodily integrity do not apply in the same way they do in public schools because Trinity is not a state actor. They are not a government entity. The Constitution protects us from government action, not the action of private businesses or schools.

And if Trinity wanted to go even further and make mandatory drug testing a condition of enrollment for every student each year, there is scant legal precedent that says they wouldn’t be able to do so.

Public schools are more restricted, however.

In its coverage of the announcement, The Courier-Journal noted (without explanation) that public schools in Jefferson and Oldham counties do not randomly test all students, though Oldham does test students “involved in competitive extracurricular activities.”

The reason JCPS doesn’t randomly drug test all of its students isn’t because it hasn’t gotten around to it. The reason is the Fourth Amendment. The Fourth Amendment protects us from unreasonable searches and seizures by government actors (like police officers or public school administrators), and the Supreme Court interprets drug tests to be searches. They must be “reasonable” or they’ll be considered unconstitutional and therefore prohibited. Random testing of all public school students as a matter of policy has been ruled unreasonable.

But the Fourth Amendment doesn’t preclude all public school drug testing.

In 2002, the Supreme Court decided a case called Board of Education v. Earls. An Oklahoma public school district adopted a policy similar to Oldham County’s: All students who participated in “competitive extracurricular activities” had to submit to a drug test. Two students, one already a member of her school’s academic team and the other seeking to join, challenged the policy as a violation of their Fourth Amendment rights.

In a sharply divided opinion, the Supreme Court upheld the school’s drug testing policy. Writing for a majority that crossed ideological lines (liberal-leaning Justice Stephen Breyer agreed with the policy, conservative Justice Sandra Day O’Connor opposed it), Justice Clarence Thomas wrote that “while schoolchildren do not shed their constitutional rights when they enter the schoolhouse, Fourth Amendment rights are different in public schools than elsewhere.” There are “custodial and tutelary” needs unique to the school environment.

And because the Court found those needs heightened in competitive extracurricular activities, the Oklahoma policy was “a reasonably effective means of addressing the school district’s legitimate concerns in preventing, deterring and detecting drug use.”

Justice Ruth Bader Ginsburg was not convinced. She dissented (along with three other Justices), denouncing the school’s drug policy as “capricious, even perverse” because the policy targeted motivated, educationally engaged student populations “least likely to be at risk from illicit drugs and their damaging effects.” And if, as previous Supreme Court precedent holds, random testing of all students isn’t justified despite the dangers posed by drug use among adolescents, how can it be justifiable to test good students doing good things after school?

The debate among the Justices in the Earls case was similar to the public debate over anti-drug policies still going on today. Even if a school can legally drug test its students, should it? Should limited school resources be devoted to randomly ferreting out alcohol and drug use in the student body?

The American Academy of Pediatrics says no, because the effectiveness of school-based drug testing remains doubtful. Drug tests are “fairly easy to defeat,” according to the Academy’s 2007 policy statement, and results aren’t always accurate. Instead of testing, they suggest that the focus of school-based anti-drug efforts should be the creation of counseling and treatment programs in an environment free of suspicion and punishment.

But detection is not the only goal of such programs. In his letter to parents, Trinity president Robert Mullen touted the deterrent effect of the new policy. Beyond an immediate desire to avoid punishment, Mullen suggested that students could use the random chance of testing as a way to deflect peer pressure. “Our primary motive for adding this testing program is to empower our students with the ability to say: ‘I can’t. My school tests.’”

That deterrent effect may not be real or lasting, however. A study by the Institute of Education Sciences found that student reports of their own drug use decreased at schools where they were subject to random drug tests, but whether or not usage was actually down remained unclear. And, more significantly, “there was no effect on any group of students’ reported intentions to use substances in the future.” The same percentage of students at both schools that tested and schools that didn’t test reported an intent to use illicit substances someday.

So while school drug testing might suppress drug and alcohol use for a while, it doesn’t change students’ underlying desire. The policies simply don’t seem to instill the value of sober living among any students who don’t already hold it.

The good news is that drug use among students has decreased considerably over the past 15 years. Despite warnings of an “epidemic” of drug use among our youth, the problem isn’t as bad as one might assume.

Practical effectiveness aside, school drug testing policies raise other, more philosophical questions. What effect do random drug tests have on students’ burgeoning senses of autonomy? Do we want students to make decisions out of a fear of punishment or do we want to give them some freedom to form their own identities and values?

And of what value is their privacy? In a supposedly free society, do we want each new generation to reach adulthood expecting and accepting regular invasions of their privacy by people in power? Perhaps blind submission to authority is the value that drug testing policies actually instill.

As the Supreme Court declared in 1943, “that [schools] are educating the young for citizenship is reason 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.”

Though the daily operations of private schools are unbound by the Constitution, I doubt anyone at Trinity High School would argue they are not in the business of educating the young for good citizenship. Good citizenship requires not just personal responsibility but also expectations of freedom and autonomy. And responsibility is not the same as blind obedience.

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Joe Dunman
Joe Dunman is a Louisville, Kentucky attorney whose practice focuses on civil rights and employment law. He tweets @JoeDunman and blogs at www.joedunmanlaw.com.