When Lindsay Earls set out in 1999 to challenge her high school‘s policy of drug testing students who participate in extracurricular activities, she did so with the support of the American Civil Liberties Union, her parents and the tacit approval of many of her teachers. But as in every high school, a few people try to ruin it for everybody: On the ACLU’s Web site, which features a portrait of Earls‘ fresh-scrubbed family, the now 19-year-old Dartmouth freshman reports that as her suit garnered publicity, some of her fellow students began taunting her younger sibling, Lacey, saying, ”Your sister is a pothead.“
I was reminded of those kids when I read reports of the U.S. Supreme Court’s arguments on the matter last Wednesday, dominated by the sarcasm-laced commentary of Justices Anthony M. Kennedy and Antonin Scalia: Speculating on how parents would choose schools if they had a choice between one that tested students for drugs and one that didn‘t, Kennedy declared that, ”No parent would send their child to the druggie school — other than perhaps your client.“
When ACLU lawyer Graham Boyd objected that Earls’ former school district, in Tecumseh, Oklahoma, had no observable drug problem, Justice Scalia replied, ”So long as you have a bunch of druggies who are orderly in class, the school can take no action. That‘s what you want us to rule?“
The shared use of accusatory slang like druggie might appear unseemly for a pair of Supreme Court justices. But it’s also appropriate, because the Supreme Court‘s rhetorical style serves as a useful indicator of the tenor of discourse surrounding drug policy in the U.S. over the past two decades. In the place of reason and compassion, there is ridicule and scorn; instead of an effort to diagnose and address what drug problems exist, there is an increasing dependence on simplistic and punitive solutions to imagined crises. The schools, declared Scalia, are only ”trying to raise these young people to be responsible adults.“ Compare that to the Supreme Court of 1943, which, in the landmark flag-salute case West Virginia Board of Education v. Barnette, called 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.“
”It’s astonishing to see how what should be sound legal reasoning has been distorted by drug-war rhetoric,“ says Ethan Nadelmann, executive director of the Drug Policy Alliance. ”I suspect that a generation from now we‘ll look back on this term druggie in the same way we now regard bigoted terminology we’ve heard in past historical cases.“
In fact, says Nadelmann, the court is so far removed from the reality of high school drug use that most reputable studies have been rendered irrelevant to the debate. Lower courts have proved more rational: While the Tecumseh school board prevailed at the district court level, the U.S. 10th Circuit Court of Appeals reversed the decision, concluding that random drug testing without clear ”special needs“ is unconstitutional. But no one seems to believe the Supreme Court will rule in favor of Lindsay Earls, despite her having elicited amicus briefs from such disparate sources as the American Academy of Pediatrics, the National Education Association and the Rutherford Institute, erstwhile legal benefactor to Paula Jones in her case against Bill Clinton. The court is widely regarded to have taken on Earls v. Tecumseh to clarify the confusion left behind after Veronia v. Acton, a 1995 decision that legitimized mandatory suspicionless drug testing of high school athletes in Veronia, Oregon, and that 6-3 vote is likely to be repeated on Earls. So while justices Ruth Bader Ginsberg and Sandra Day O‘Connor described the Tecumseh school board’s drug-screening policy as ”odd“ and ”counterproductive,“ and Justice David H. Souter warned of a slippery slope toward drug tests for all high school students — an outcome the Bush administration explicitly wants — when the court renders its decision in late June, it‘s likely to extend high school drug testing to all sorts of circumstances. To advocates of drug-policy reform, this portends disaster. ”A U.S. Government survey showed that 50 percent of high school seniors have tried drugs by the time they graduate,“ says Nadelmann. ”The consequence of stigmatizing young people for experimenting with drugs can be far more harmful than the drug use itself.“
In the wake of the Veronia decision, an economics professor named Robert Taylor published an article in the winter 1997 issue of Cato Journal, in which he literally did the math: Taylor, who was then on the faculty at San Diego State, formulated equations to prove that, as students drop out of sports participation fearing drug tests, more teenagers will be at risk for drug dependence and addiction. ”Drug testing, by invading the privacy of student athletes and by making continued drug use difficult or impossible, increases the cost of athletic participation and will most probably lead marginal student athletes to quit the team,“ Taylor wrote. ”Freed from the regimen of athletics, these former athletes may revert to the drug-use patterns of their nonathlete peers — who have higher rates of drug usage than athletes.“ In other words, a decision in favor of the school board on Earls may spawn as many ”druggies“ as it deters — perhaps in the form of latchkey alcoholics who will remain under the radar of the qualified professionals who might have been able to save them.
In the meantime, those who worry about a U.S. drug problem might turn their attention to the 80 percent of drug-abuse deaths that occur in adults over the age of 25, many of which involve overdoses of prescription drugs, or alcohol in combination with other drugs. That’s not, of course, what Justice Scalia meant when he referred scornfully to a ”drug culture.“ ”If the U.S. has a drug culture,“ says Nadelmann, ”maybe it has something to do with the millions of people taking pharmaceuticals for everything from anxiety to shyness.“ And to the extent that high schools have a drug culture, ”maybe we ought to count the millions of kids on Ritalin.“ Or maybe someone ought to ask Scalia and Kennedy, while they‘re clarifying our Constitution for posterity, to tell us what exactly they mean by druggie.