Drugs are an increasing problem in small rural towns, and residents are understandably interested in doing something about it. There are, unfortunately, limits on what can be done about the drug problem. Mandatory drug-testing of all town residents would clearly be unconstitutional, for example. Drug-testing is a search within the meaning of the Fourth Amendment, which prohibits unreasonable searches. To pass Constitutional muster, a search must be reasonable.

Can a school district require drug-testing of all students? In Lockney, Texas, a 12-year-old boy may be suspended from school for refusing a drug test. Though he is not suspected of drug-use, school policy treats his refusal the same as testing positive. If he continues to refuse, he faces suspension from extracurricular activities, removal to an Alternative Education Placement School, multiple sessions of substance-abuse counseling, and more.

Whether Lockney's mandatory testing is constitutional is an open question. Grade school students are not like other people, at least according to the U.S. Supreme Court. They are (a) children, (b) entrusted to the temporary custody of the state acting as schoolmaster, guardian, and tutor. What is unreasonable in other contexts may not be unreasonable in this one. The random drug-testing of student athletes is okay, according to the court, because athletes have diminished expectations of privacy which aren't much burdened by an additional urine test.

To test all students is to go a good bit further --- and neither the Supreme Court nor any federal court of appeals has approved such a thing, at least so far. In Indiana, Illinois, and Michigan, the seventh circuit, it's okay to test any student who wish to participate, not just in sports, but in any extracurricular activity. Such a test is applied only to those students who have "voluntarily chosen to participate in an activity" --- and so the drug-test itself is, in a sense, voluntary!

Do you buy that? If you don't, you have the Colorado Supreme Court for company. In Lockney, of course, a student can't avoid drug-testing even by giving up extracurricular activities. And the Seventh Circuit itself has struck down a drug-testing program that denied even that much choice.

By applying the test of what is reasonable, the courts are looking beyond themselves to us, the society at large, for its standards. And certainly you don't have to be a judge to have an opinion as to what is a reasonable intrusion on someone and what goes a bit too far. How much of an imposition is it to be forced to urinate in a cup, and is it a lesser imposition on a child? How intrusive is it to have your bodily fluids studied by others for what they might reveal about the state of your body?

Balanced against all these considerations is how seriously you view the local drug problem. And whether you think a given drug-testing policy is going to do much good. And whether there are other ways to get at the drug problem that don't require our children to go to the bathroom with test monitors listening for the sounds of urination and, while there, to produce a cup of something warm enough to be obviously theirs.

By: Michael Monhollon
Michael L. Monhollon, a licensed attorney, teaches business and employment law at Hardin-Simmons University. His novelization of the gospel story is being serialized at http://bookserial.com.

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