Schools Choosing to Randomly Violate Civil Rights

By Mark David Blum, Esq.

If my President and his theocratic Party has their way, there is going to be a National program of, random student drug testing in public middle and high schools. The controversial program, which has already been implemented in nearly 1,000 middle and high schools across the country, requires that kids submit to random drug testing if they want to participate in competitive extracurricular activities like athletics. The Department of Education offers grants to schools that want to develop or expand a drug-testing programs for children in grades 6-12.”

Here in Upstate New York, Fayetteville Manlius High School has joined the drug warriors. Such a policy is wrong, ineffective, expensive, and violates the most basic of our rights – the right to privacy of the self.

The issue is not about drugs nor is it about whether drugs should be legal. Drugs are bad. Don’t do drugs. If you are going to use drugs, that is your business. Government has no role in that decision making process.

Instead, the issue here is about children and education. The question becomes ‘what is it that we are teaching our children?’ It would appear that in thousands of schools nationwide, including Fayetteville Manlius, “education” is no longer the priority and instead policing private lives is their primary concern.

Educators and managers of the school district are the ones I insist on being sober. Children are children and are going through the growing and exploring life stage as they mature into adulthood. We are not raising children, we are raising adults. I expect children to do stupid things; that is how we gather life experience. But the teachers, coaches, principles, counselors, bus drivers, and other adults who supervise my children … are they drug free? Do they drink or do drugs on the weekend or when not working?

What is wrong with this drug testing policy is the random nature of its implementation. School District officials have reserved for themselves the right to demand a student take drug test ‘whenever’. In New Jersey, they are doing testing on Monday mornings to see what if any drug or alcohol use the students engaged in over the weekend. At Fayetteville Manlius High School, the test process is so simple; just spit. But, because this policy is “random”, any teacher for any reason or no reason at all could demand any student stop what they are doing, leave class, and march on down to the nurse’s office for a spit test.

As an attorney and one with a great deal of civil rights litigation experience, I am personally offended by ‘random’ being the standard for government action. “Random” government behavior opens the door to so much abuse, that our Nation’s Founders and every court and legislature since has insisted on an objective set of standards for all government action. That is how we assure equality and prevent abusive government.

The answer, of course, is to test everybody. Do it everyday. That is the only way you are going to assure your student body is drug free upon entering the building. Test all of them after lunch to assure nobody snuck out behind the bleachers and hit a bowl. Test the teachers and administrators to make sure nobody had that 2 martini lunch. My child has a right to a drug free environment. Can FM assure us their employees are all sober … before they start testing our children?

Every day, every student entering the school should be required to undergo the spit test. They already search student bags. Student lockers are routinely searched without warrant. All athletes, band members, and extra curricular participants are drug tested. So what is the difficulty of having every student do a spit test every day?

The theory of law being misapplied is how the School District opines it can invade privacy on the whim of any body at any time. There is no set of established objective criteria. This offends me. It should offend you. Obviously, it did not offend the overpaid downtown lawyers who suggested the School District could behave so arbitrarily in its invasion of the most cherished of constitutional protections.

If we are going to insist on drug testing students, at least we could adopt an objective set of standards by which a student can be tested. Murderers and rapists are entitled to an objective set of standards before the government can invade their bodies. Why should high school students be treated with less respect than the garbage of society?

Aside from the randomness of the policy and the dangers it poses, what also makes this policy ineffective is the school’s response to a test demand. If a student tests positive or refuses to test, the student is suspended ten days. No protection is in place for a false positive. There are always false positives. It seems to me the last thing we would want for a student in trouble is to throw them out of school and leave them to wander the streets and watch MTV all day. A student needing to be intoxicated to get through the school day has issues that need to be addressed. The best place to monitor their activities and to assure they are in a productive and healthy environment is to keep the student in school. That is, unless school officials are of the opinion that their school is so unsafe and unstable, that kids in trouble are safer at home.

A student identified as being intoxicated needs peers and support. They do NOT need social ostracism, shunning, embarrassment, and having their permanent record branded with the scarlet letter of “drug user”. Nothing about this policy satisfies it goals. Everything about it causes serious and irreparable harm. It has been said that the most dangerous thing about drugs is getting arrested.

For these reasons and others, I have had a long discussion with my daughter and we have made the decision that she will refuse any demand for a drug test. Until the policy changes and it is no longer random, the school district will be on advance notice that my child is not going to be labeled as a drug user and is going to refuse a test. Her refusal is going to be on record ahead of time so nobody can say she is refusing because she has something to hide. She is going to refuse because the issues of privacy and excessive government intrusion are more harmful to her than will be any 10 day suspension. Just the fact that a teacher would walk up to her and demand her submission to a saliva test would brand her in front of her peers

Yes, students who refuse a test will be suspended for 10 days. So as to ease the shame of a suspension (which should be seen as a badge of courage by her peers) … should that event ever occur, I promised my daughter a vacation for those 10 days. I will take her to the beach or Disneyworld or anywhere where she can be free to celebrate her freedom.

Every student should refuse to submit to random drug testing. If but a few willing to accept a suspension stand up for their beliefs to protect not only their friends and peers but also future generations, this stupid expensive policy will stop.

Schools should educate, enlighten, and challenge. Theirs is not the task of policing, punishing, monitoring, or engaging in matters beyond their identified mission. My only question is how many of those district policymakers could have, at the time, survived this same scrutiny.

Do it to everybody or do it to nobody. Whatever you do, do it for the children.

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