State high court nixes Wahkiakum drug tests

Friday, March 14, 2008 9:26 AM PDT

The state Supreme Court Thursday unanimously rejected the Wahkiakum School District's policy of random drug-testing student athletes, saying it violates personal freedoms protected by the Washington Constitution.

The decision will have statewide implications on just how far school districts can go to monitor student alcohol and drug abuse. A handful of public schools across the state had adopted similar drug testing rules.

"We're pleased," said Doug Honig of the Seattle office of the American Civil Liberties Union. "School districts around the state have been looking to this decision for guidance about whether suspicionless drug testing of students is constitutional. The answer is no." The high court's plurality opinion, written by Justice Richard Sanders, said students have "a genuine and fundamental privacy interest in controlling his or her own bodily functions."

According to the opinion, "we can conceive of no way to draw a principled line permitting drug testing only student athletes. If we were to allow random drug testing here, what prevents school districts from either later drug testing students participating in any extracurricular activities, as federal courts now allow, or testing the entire student population?"

Chief Justice Gerry Alexander and Justices Susan Owens and Tom Chambers joined Sanders in the plurality opinion. Despite the unanimous ruling, though, the nine-member court was split on whether Sanders' opinion was too sweeping.

There were three separate concurring opinions, and at least one justice said random suspicionless drug testing should be OK under "carefully defined circumstances."

The case was on appeal from Wahkiakum County Superior Court. In 2006, Superior Court Judge Douglas E. Goelz rejected the ACLU and parents Paul and Sharon Schneider and Hans and Katherine York, siding with district officials who argued that the policy was justified because drug use was a "real and serious threat" to the school.

Hans York, a Wahkiakum County Sheriff's deputy whose sons Aaron and Abraham were tested in 1999-2000 under the school district's policy, said he's happy students won't endure what his children did.

"It's a better decision than we expected," he said Thursday. "I'm delighted. �¿� (The drug testing policy) taught kids the role of the school was to police rather than educate. It side-stepped the issue of teaching kids values."

Aaron York is now a Peace Corps volunteer in Bolivia. Abraham York still lives at home in Cathlamet while attending Lower Columbia College.

Wahkiakum School Superintendent Bob Garrett was unavailable on Thursday. Questions about the ruling were referred to the district's lawyer, Fred Johnson, who said he did not know how many students have been tested or failed the random drug tests, or whether school officials believe the policy has curbed drug use.

But Johnson did say he was pleased the court finally made a decision on the issue.

"Overall, I'm happy that the Supreme Court gave an answer to the Wahkiakum School District, and to all the other school districts in Washington," Johnson said, but he worried the ruling wasn't specific enough and schools might have difficulty drafting other drug prevention rules. "I don't think we are left a very clear test of what (the state constitution) allows."

The U.S. Supreme Court allowed suspicionless drug testing of student athletes in a landmark 1995 case involving the Vernonia School District in Columbia County. In that case, the court ruled random testing does not violate the Fourth Amendment's protection against unreasonable searches and seizures if schools prove a drug problem exists.

Wahkiakum School District had modeled its drug testing policy on Vernonia's. Thursday, however, Washington's high court ruled that random drug testing violates student rights guaranteed by the state constitution, which offers greater protection from warrantless searches than the U.S. Constitution.

The school district adopted the policy in October 1999, saying attempts to curb widespread drug use through other intervention programs weren't working. In 1998, 42 percent of the district's high school seniors surveyed said they had used illegal drugs.

To conduct the random drug tests, a health department employee either waits outside the bathroom while the student urinates or stands in the doorway while the student is in a bathroom stall. One middle school and two high school athletes are drawn by district officials each week for the tests.

Honig said several studies about random drug testing prove they don't work. "It doesn't address the reasons why students might be using drugs."

A study released in 2007 by Oregon Health & Science University in Portland provided no evidence that random drug testing keeps students from using drugs and alcohol. The university surveyed about 1,400 student athletes at 11 Oregon high schools during a two-year period for the study.

Jennifer Kern, a coordinator for the Drug Policy Alliance, said suspicionless drug testing erodes trust between students and teachers, increases a student's desire to rebel, discourages troubled teens from extracurricular activities, and turns students to harder drugs or alcohol �¿� substances less likely to show up on a drug test.

"Treating students with this kind of universal suspicion has negative effects on student attitudes," said Kern, whose organization, along with the Washington Education Association (the state teachers' union), filed a brief in the case against the school district. "Our biggest concern is that the program can actually be counterproductive."

The Supreme Court ordered the school district to reimburse the ACLU for its legal costs in the case. Honig said he doesn't know how much the organization spent.