Wednesday, November 26, 2003

By Bill Schackner and Jill Cueni-Cohen, Pittsburgh Post-Gazette

School districts statewide are mulling the effect of a Supreme Court opinion that says the desire to curb drug abuse doesn't justify school officials' "suspicionless" testing of students.

Random drug tests on athletes, students who drive to school or who participate in after-school activities have been under legal scrutiny nationwide and in Pennsylvania, where a lawsuit has progressed over the approach taken by the Delaware Valley School District.

The state's highest court now appears to have raised a potential cautionary flag, rejecting Delaware Valley's attempt to have the lawsuit against it tossed out. The court's decision, while not the final word on the drug testing issue, allows the legal challenge to continue.

In their decision, the Supreme Court justices questioned Delaware Valley's testing of student leaders as an effort to set an example. In a majority opinion, they said the district failed to offer necessary proof of a student drug problem, how those screened are connected to it or how the policy fixes the problem.

"The theory apparently is that, even in the absence of any suspicion of drug or alcohol abuse, it is appropriate to single these students out and say, in effect: 'Choose one: your Pennsylvania constitutional right to privacy or the chess club,' " Justice Ronald D. Castille wrote in a 32-page opinion.

"What lesson does a program targeting the personal privacy of some but not all students and lacking both individualized suspicion or any reasoned basis for a suspicionless search teach our young?" Castille wrote.

Some school officials yesterday said they had just learned of the court's opinion, issued Thursday. Views on it varied.

"I wasn't surprised," said Hampton School Superintendent Lawrence Korchnak, who pointed to what the Pennsylvania Constitution says about Fourth Amendment privacy rights. His school does not do "suspicionless" testing but rather looks at students who show signs of substance abuse such as slurred speech.

He said he believes schools intending to do suspicionless searches may have to limit them to athletes and other cases involving use of driving privileges.

But Dean Berkebile, president of the Seneca Valley School Board, saw a more positive message in the opinion.

"The opinion stresses that a substantiated need for drug testing must be established. That need exists," he said yesterday. "Substance abuse is a problem; it is a problem in every high school. It is illegal. It is disruptive to the educational process. For this reason, the board will continue to proactively address the challenge."

Seneca Valley has taken drug testing further than most Western Pennsylvania school districts. Last school year, they began random testing of student athletes and drivers.

The board initially had hesitated to expand the testing after hearing of the Delaware Valley Court challenge. But in September, board members voted anyway to increase the random drug- and alcohol-testing pool to include all students, grades 9 through 12, who participate in extracurricular activities.

The Delaware Valley lawsuit was brought by two sisters, Kimberly and Jennifer Theodore. They were tested because Jennifer belonged to the National Honor Society and academic clubs and Kimberly played several sports and sought a parking permit.

"We really felt that the policy was an invasion of students' rights," said their mother, Mary Ellen Theodore, of Milford. "And their stated aim of what they're trying to accomplish with this policy, which was keep the student body healthy, keep them safe, we don't feel this policy ... is the correct way to go about it."

The sisters passed their drug tests and have graduated from the district's high school.

In Venango County, Superintendent Bryan Balavage of Franklin Area School District said the opinion would have no effect on his district because the 145 students who submit to testing do so voluntarily.

He said absent a definitive order, school districts may ultimately make their decisions based on how important they believe the policies are to student well-being.

"If they had a huge drug problem, then instituted this random drug-testing and now they have only 50 percent of the problem they had two years ago, they might want to defend whatever program they have in the courts," he said.

Linda Hippert, superintendent of the South Fayette School District, said officials there have been looking at a program in which students would be tested only with parental permission. The results would go to the parents, not the district.

She said she doubted the opinion would have any effect on her district.

Although little organized opposition has arisen to Seneca Valley's program, one parent, Tom Cully of Cranberry, has criticized the board's decision.

"We believe that it is our responsibility to properly raise our children," said Cully. "To test my child without cause is an infringement on her rights and a strong statement of accusation without probable cause. The testing crosses the line of privacy."

The initial drug-testing program cost Seneca Valley $40,000 per year. The expanded program implemented this year is expected to add another $20,000 to the annual cost.

Berkebile said yesterday that the state Supreme Court's opinion "is currently under review by our solicitor as to its effect on our current policy." But, he added, "the opinion supports the vast majority of our current testing pool. It appears to agree that athletes and student drivers are eligible for consideration."

The opinion is available in pdf format at www.courts.state.pa.us/opposting/supreme/out/J-97-2003mo.pdf.

The Associated Press contributed to this report.

Jill Cueni-Cohen is a freelance writer. Bill Schackner can be reached at bschackner@post-gazette.com or 412-263-1977.

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