In May, Michigan's Melvindale-Northern Allen Park school board voted 7-to-0 to compel all athletes and cheerleaders to undergo drug tests. The random testing will extend from the seventh to the 12th grades.
Superintendent Gerald Wolf, pleased with the vote, told the Detroit Free Press that "drug testing will reflect the values and opinions of this community" and will be of long-range value to the students because when "they go into the real world" they will "realize that drug testing will be part of their life."
During that school district's celebration next year of the Bicentennial of the Bill of Rights, I assume that in all decency the Fourth Amendment will be omitted from the ceremonies.
Actually, many students already know what the real world of their fathers and mothers is like. As a result of court decisions -- including rulings by the Supreme Court -- an ever growing percentage of the work force is now vulnerable to random drug testing without a trace of prior individualized suspicion that the employee is using or has used drugs.
Accordingly, many kids do take it for granted that they -- that is, their urine samples -- are likely to be "searched" when they apply for a job. Or at any time on the job.
What judges often do not take into account is the profound educational effect of judicial rulings that cut deeply into individual liberties. A lawyer who defends youngsters against police practices that cavalierly ignore due process rights says, "What bothers me is that these kids don't even get angry. They're resigned. They don't expect anything different." They have become accomplices in the loss of their constitutional rights.
Some judges, however, continue to take the Fourth Amendment seriously. Recently in New York, U.S. District Judge Robert P. Patterson Jr. threw out the New York City Transit Authority's entire drug testing program on constitutional grounds.
In the mid-1980s, every applicant for a job and every employee had to be tested for marijuana use. A class action suit was brought by the Legal Action Center on behalf of more than 2,000 people who, having tested positive, were either refused jobs or -- if already employed by the authority -- were fired, suspended or turned down for promotions.
Judge Patterson ruled that employees who are not in "safety-sensitive" positions should not have been forced to submit to urine drug tests. The transit authority, for instance, had no business testing office workers, subway car sweepers and others who had given no reason for the transit authority to believe they might have used drugs.
These tests, conducted without individualized "reasonable suspicion," clearly consisted, said the judge, of "unreasonable searches and seizures" in defiance of the Fourth Amendment. Moreover, Patterson ruled, the laboratory used to check out the tests was unreliable. And because the transit authority did not allow workers who had tested positive to go to another laboratory to try to prove their innocence, the constitutional violations were compounded. The original tests violated the Fourth Amendment, and the inability to rebut the highly problematic results of those tests was a wholesale denial of due process.
Edward Davis, staff attorney at the Legal Action Center -- which specializes in alcoholism, drug abuse, AIDS and the problems of ex-offenders -- notes that "the hundreds of people who may have been falsely accused of marijuana use by the transit authority will now have their names cleared and will get some kind of compensation for their suffering." Until now, whenever the accused applied for a job elsewhere, they had to tell why they were fired, and it was only their word that they had been wrongly accused.
The New York City Transit Authority has appealed the decision, but the extensive factual record of the case and the care taken by Judge Patterson to explore all of its dimensions in his 83-page decision make a reversal unlikely.
Meanwhile, Michigan's Melvindale-Northern Allen Park school board is enthusiastically going ahead with plans for random suspicionless drug tests of cheerleaders and athletes -- some 40 percent of the students in grades seven to 12. Says board member Gary Short: "If my daughter had the rights of the Constitution at home, I couldn't walk into her bedroom. Where do you stop at?"