Law and Order in the Ozarks (Part CXV): Jasper School Board authorizes random drug testing of students

The May 15, 2013 issue of the Newton County Times reports that the Jasper School Board has voted 4-3 on May 9 to conduct random drug tests on students.   The board of education had been considering the policy--and soliciting public input--since the superintendent proposed a draft of the policy in March.  

The stated purpose of the policy is:

to provide for the health and safety of students in all activity programs and students who park vehicles on campus; to undermine the effects of peer pressure by providing a legitimate reason for student to refuse to use illegal drugs and to encourage students who use drugs to participate in drug treatment programs.  

One member of the public, Lex Pruitt (no relation), spoke vigorously in opposition to the policy.  He is a high school teacher who instructs students online in a distance learning program, but the the new report does not make clear whether he does so for the Jasper School District or for a different entity.  He had written an editorial published in the Newton County Times urging school board members to be first to be drug tested.  At the public comment portion of the May meeting, he stated that among the students he teaches, who are 13 different schools, those whose schools conduct random drug testing say they "feel they are 'targeted.'"  Pruitt acknowledged that drug testing may deter drug use, yes, but that it undermines students' rights, especially the right to privacy.  He asserted that drug testing would only add to the drama that teenagers already wrestle with, and the urged the school board to "take away the drama."

Pruitt also expressed concerns about the fair administration of the policy, and he questioned the meaning of terms used in the policy such as "reliable source" and "reasonable suspicion."  To this, the superintendent responded that Pruitt was referring to an outdated version of the policy, and that those terms are no longer part of the policy under consideration.

Among the board members, one, Todd Scarborough vigorously opposed the policy, stating, "I cannot vote for it in any form."  He cited the cost of paying for the drug testing as a reason for opposing it.  Rex Van Buren also opposed the policy, saying it violates privacy and assumes guilt. He also cited cost and said he would prefer to have trained drug-sniffing dogs make unannounced visits to the school.

Four members voted for the policy, with one of them saying his vote reflected the views of 80% of the parents who commented to him about the proposed policy.  He said most parents felt the policy "will be another set of eyes on their children."  Another board member who voted for the policy said he believe it would be effective at deterring younger students from trying drugs in the first place because of their desire to participate in sports and other extracurricular activities.

What is not clear is whether the board of education has seriously considered--or understands--the constitutional issues raised by the policy.  An earlier report, in the April 24, 2013, issue of the Newton County Times, notes that the Conway (Arkansas) School District was sued over its drug testing policy a decade ago.  The district suspended testing before the case came to court, and abandoned the program in 2007.  The Conway superintendent, interviewed by the Arkansas Times (no date given), indicated that dropping the policy was the correct decision, and that the Conway board had done so based on community input.

The Times story notes that the U.S. Supreme Court has upheld the constitutionality of random drug testing "for student athletes and students participating in extracurricular activities." It also notes that Arkansas School Board staff attorney Kristen Gold has said that "the legality of random drug testing of students is not questioned." Her opinion states:

Students cannot be denied the opportunity to go to school but can be drug tested as a condition of being allowed to participate in a program that is a privilege, not a right.

Her memo cited the 4th amendment protection for citizens from unreasonable searches and seizures by the government.  She explained that a school district is a government entity, and the drug test is a type of search and seizure.  (New York Times coverage of the constitutionality of such school drug testing is here and here.  The ACLU collects case law on the issue here).

Also unclear from the Newton County Times coverage is whether the drug testing will be strictly random.  I note that board member Scarborough suggested it might not be, indicating his concern about the lack of anonymity that marks rural communities.  Also unclear is whether the drug testing is linked to participation in extracurricular activities, as opposed to carrying broader implications for students who may test positive.