A Stitch in Haste

The White House, supposedly committed to fiscal restraint, has no problem throwing around gobs of money to fight the War on Teenagers Drugs:

The Bush administration on Wednesday unveiled its 2006 anti-drug program, a campaign that encourages more high schools to screen students and urges teens to live above the influence of drugs and peer pressure.
...
Since the Supreme Court ruled in 2002 that schools can randomly test high school students in competitive extracurricular activities, his office and the Department of Education have provided grants and other support to at least 350 school districts to screen students.

The 2002 case was Board of Education of Pottawatomie County v. Earls, 536 U.S. 822 (2002). But first some background:

In a famous 1995 case, Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), the Supreme Court nominally reiterated the longstanding principle that students in public schools have at least some of, though not all, the same constitutional rights that adults have. Borrowing from other (adult-oriented) drug screening cases, the Vernonia court crafted a wholly reasonable policy: In the narrow context of student sports, it is not unreasonable to screen student athletes for drug use without individualized suspicion. The reasoning was that "playing high" (or on steroids) was an inherently dangerous act, one that the government, through its educrats, has a compelling interest in preventing.

Fair enough, but the Vernonia court unfortunately avoided limiting suspicionless student drug tests to that specific scenario. Stated differently, Vernonia did not say "this far, but no further," but rather "this far, and we'll worry about the rest later."

"Later" came in 2002 and Pottawatomie County v. Earls, where suspicionless drug screening was expanded not just to student athletes but to all students participating in any extracurricular activity -- even the chess club. The Court tumbled down the slippery slope and insisted that, no, Vernonia in fact did not say what it said and did not really rely on the "safety" argument to justify the specific testing of student athletes and only student athletes because "sports are different." No, said the Court, since "all drug use is bad" and since "all drug use creates a safety issue," the student athlete argument that was the entire foundation for Vernonia was in fact a straw man and that it was in fact constitutional to expand suspicionless student drug testing to all participants in all extra-curricular activities.

You can guess where this is going.

If the Court's cognitive leap from Vernonia to Earls is legitimate, then it would of course also be legitimate to discard the "extra-curricular activities" bootstrap wholesale and simply say that "fighting drug use by students" is a sufficient government interest to test all students, period.

Eventually some public school district will do exactly that, and it will be challenged, and it will make its way to the Supreme Court. And the students will lose. Universal suspicionless drug testing of students is inevitable given the shoddy logic of Earls.

One more thing -- that shoddy logic belongs to Justice Clarence Thomas, who wrote the Earls opinion. Remind me again how he's a "great libertarian thinker"?

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Going back to the Bush budget: Regardless of whether one believes that suspicionless drug testing of public school students is constitutional, or wise, why exactly should the federal government pay for it? If it's simply another cost of doing business, then let the school districts -- and their taxpayers -- foot the bill and leave the federal government out of it.

And while we're on the subject -- shouldn't it be parents' responsibility, rather than the schools', to test their kids for drugs -- and to foot the bill?

Prestigious U.K. boarding school expels three students for smoking pot:

--off school grounds

--outside the school term

--with no criminal investigation.

This incident, which is generating some well-deserved outrage in Britain, reflects a new and scary paradigm of the interconnected role of school, parent and state in England. Whereas before schools were considered agents -- and servants -- of the parents, now they are considered, well, parents of the parents:

The Anti-Social Behaviour Act of 2003 gives head teachers the authority to fine parents and issue parenting orders forcing them to attend counselling. Where once schools stood for moral guidance, they are now expected to play a much more interventionist and authoritarian role.

This law is not far removed from the idea that children in fact "belong" to the state (and the schools) and that parents are mere "night watchmen" over them rather than inculcators of their own values.

To equate teachers and parents -- the old "in loco parentis" doctrine, was controversial enough. Now the teacher is the overlord of the parent -- and we know who the overlord of the teacher is. Parental authority, rather than enjoying a (rebuttable) presumption of propriety, becomes strictly residual: "You may raise your children in any manner you see fit...but only from this official list of 'proper' manners.

In the U.S., meanwhile, we have, for example, schools banning cell phones -- in open defiance of parental wishes -- and a gradual decay, abetted by the Supreme Court's repeated disregard of its own precedents, toward unlimited random and suspicionless drug testing of students. So we are, arguably, not far behind Britain in the erosion of parental autonomy.

All the more reason to advocate increased use of vouchers and privatization of primary and secondary schools. He who pays the principal calls the tunes, right?

MEANWHILE: Inactivist has a related post on what a universal, strictly privatized school system might, and might not, look like. Be sure to scroll down to my lengthy comment.

ALSO MEANWHILE: Hit & Run discusses a new study suggesting that the "infallible" hair follicle test for drug use is indeed quite fallible after all.

Dark times at Ridgemont High:

Teens who drink alcohol could be caught three days later under a [New Jersey] high school's new testing policy for students.

The test, which will be given randomly to students at Pequannock Township High School, can detect whether alcohol was consumed up to 80 hours earlier.

Pequannock Superintendent Larrie Reynolds said the policy approved last week should be a deterrent to students who feel peer pressure to drink.

Peer pressure.

To understand the egregiousness of this policy, you need to retrace the history of random drug testing of students, which I conveniently provide in this post. Here's the abridged version.

In Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), the Supreme Court took its first baby step down the path to unlimited random drug testing of public school students. In Vernonia, the Court crafted a very narrow exception to the Fourth Amendment's warrant requirement: In the limited context of student athletes, random drug testing was a permissible safety measure.

It was quite simple, really: high school football players might hurt themselves if they played high or drunk, so the public school (i.e., the government) had a good reason to randomly test them without individualized suspicion. Or so we were told.

But then it suddenly wasn't quite so simple anymore: From the narrow fact pattern in Vernonia, the Court's reasoning quickly imploded. Suddenly it went from athletics to all extracurricular activities* (but how much harm can a stoned chess team do to themselves?). Suddenly a carefully crafted exception became a mere reasonableness test — reasonable to be defined, of course, by the school administrators. From "this and only this" to "whatever you feel like."

That simply cannot be right.

Today, we are not quite at the point where the Court has completely surrendered the Vernonia reasoning; there is no Supreme Court case expressly authorizing random drug testing of students "just because" (i.e., for whatever flimsy reason — e.g., "peer pressure" — that public school administrators might choose to concoct). But we're close, as case studies such as the nanny-state educrats of Pequannock High School and their absurd "War on Peer Pressure" clearly demonstrate.

Oh, and let's keep in mind that this is testing for alcohol, not drugs. Minors notwithstanding, the government interest — uncompelling to begin with — is even less compelling in the context of mere alcohol (which, recall, minors can obtain legally from their parents).

There was a time when "students did not shed their constitutional rights at schoolhouse gate."** Now they shed their pants so they can pee in the cup.

UPDATE: Related post at Rolling Doughnut.

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*Board of Education of Pottawatomie County v. Earls, 536 U.S. 822 (2002).

**Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).

"If he doesn't like testing, I really don't care. I think it's a wonderful tool. It creates the fear that they could be tested."
--Robyn Tialavela, parent

There are several sad takeaways in this feature article in the Los Angeles Times about the quiet rise of random, suspicionless drug testing of high school students. Increasing questions of test accuracy, increasing questions of the psychological impact on students, no questions whatsoever from the federal government (which is pushing random testing at every opportunity). No discussion of the illegitimate slippery-slope bootstrapping by the Supreme Court from one case ("drugs are especially dangerous to student athletes") to the next ("oh, and to the chess club, too").

But I'm still stuck on stupid — i.e., Ms. Tialavela's terrifyingly oblivious remark.

It's quite simple really: If drug testing is such "a wonderful tool," then why not — pardon my childless impudence — do the drug testing yourself? Home drug tests are ubiquitously available, and remarkably inexpensive. Demand creates its own supply. Yay (?) for capitalism!

It's the "FCC or V-chip" debacle all over again. The entertainment industry, willingly or reluctantly, gave whiny parents the tools they needed to "protect" their children from the big bad television, and still they want the government to do their work for them — and for everyone else too — in the form of broadcast censorship for all. Give these parents a hammer, suddenly they want a carpenter. "For the children..."

So too with drug testing. Some parents think random, suspicionless drug testing of their students is a neat-o idea; some don't. Drug testing kits are not a public good; there need be no free riders. Parents can, on their own time and their own dime, give their children the gift of distrust the same way they can give them a car or an iPod. Leave the schools, and their neighbors' kids, out of it.

(Via CrimProf Blog.)