Teacher, Leave Them Kids Alone
by Jonathan Linder

Amidst the fracas swirling around a federal appeals court decision to deem the part of the Pledge of Allegiance unconstitutional and the headline-grabbing Supreme Court decision OKing school vouchers, a decision no less important, and no less ridiculous, than that bestowed by the three-judge appeals court slipped beneath many radars.

In a 5-4 decision, the Supreme Court ruled on June 27 that any public school student who participates in a extracurricular activity may be subjected to drug tests. Suspicion of actual drug use need not be at issue. Constitutional protection against unreasonable search and seizure? The U.S. criminal justice system's tenet of innocent until proven guilty? Forget 'em. Everyone knows children do not have rights. No, as a public school student in this nation, the adage seems to be "guilty until the lab gives your urine a thumbs up."

The 5-4 decision upheld a 6-3 decision from 1995 in which the court determined that athletes could be randomly drug tested because athletes, even as teenagers in public schools, have forfeited a degree of privacy by going out for a sport. The justices also stated then that "a drug problem largely caused by athletes, and of particular danger to athletes, is effectively addressed by ensuring that athletes do not use drugs." Yes, you read that correctly. Athletes have less right to privacy in part because they are responsible for the nation's drug use. Of course, there was no proof, other than suspicion, perception and innuendo, that athletes in any level of society have a higher incidence of drug use, but no matter. Pee in a cup children, or you cannot play.

Other decisions, reaching back to 1995, undergird the court's decision by extending random drug testing to some extracurricular activities. What sets the new decision apart is that it allows for a blanket drug test of anyone involved in any extracurricular program, even the debate team, followed up by random tests throughout the school year. The Bush administration's solicitor general, Ted Olsen, even contended that the government would be in favor of mandatory tests of entire student bodies.

Back in 1995, the court held that students gave up a portion of their privacy rights because "the subjects of the Policy are children who have been committed to the temporary custody of the State as schoolmaster; in that capacity, the State may exercise a degree of supervision and control greater than it could exercise over free adults." One would hope that, if this were indeed the case, such a ward-guardian relationship would be built on mutually held trust. The needless, fear-mongering suspicion required to administer drug tests in schools destroys any notion of trust and makes vulgar any argument of students as a ward of the state.

But again, let it be known that constitutional rights are only active upon high school graduation.

When it comes to federal rights regarding privacy, perhaps that should read college graduation. In a decision the previous week, the Supreme Court held that individual students have no recourse under the Family Educational Rights and Privacy Act, more commonly know as the Buckley Amendment. The 1974 law established privacy rights and conditions for consensual disclosure of student educational records. Schools districts or universities that do not abide by the law may lose federal funding under writ of the Department of Education. The department, however, has never laid down such a penalty; nevertheless, since 1974 universities have more or less heeded the Buckley Amendment, ensuring the confidentiality of not only educational but disciplinary records as well.

In the case in question, the Washington state supreme court had upheld a private suit that awarded a student at Gonzaga University $1 million because, according to the New York Times, he was denied teacher certification due to "an unsubstantiated accusation of sexual misconduct that a professor had put on his record and passed on to the state licensing authorities."

Ideologically, the court's decision may have had more to do with tort case law — and the unjustified fear of similar lawsuits — than privacy law, but the decision continues a trend in Supreme Court rulings that limits the scope of federal and constitutional protections for students. With erosion of the rights of teenagers and young adults comes the concurrent erosion of trust, exemplified by the actions of school districts and courts, and imprinted on students' lives.

Guilty until you prove yourself innocent. In the wake of last month's decisions, constitutional rights do not apply to the guilty little drug addicts supposedly infesting our nation's schools, and federal laws supposedly ensuring privacy protections give individual students no legal recourse when they feel that their privacy has been abridged. When it comes to rights, some are better protected than others, and students need not apply.

E-mail Jonathan Linder at jglinder at yahoo dot com.