DRUG TESTING IN SCHOOLS VIOLATES RIGHTS, EXPERT SAYS

MANHATTAN -- Mandatory drug testing for students, teachers and other school employees holds serious pitfalls and in some cases may violate personal rights guaranteed in the Fourth Amendment to the U.S. Constitution.

That's the view of Kansas State University Professor Bob Shoop, who says the Fourth Amendment protects citizens against unreasonable search and seizure.

"Courts have ruled that drug tests are a search," said Shoop, a professor of educational administration. "A search is a privacy issue, and there has to be a clear reason for the search."

Opponents of mandatory drug testing argue that forced random or uniform drug testing severely endangers constitutional democracy. The Fourth Amendment issue of reasonable suspicion is a fundamental objection to mandatory and comprehensive drug screening, Shoop said.

"Proponents cite dramatic evidence that drug testing has been effective and argue for routine screening," Shoop said. "The results of aggressive drug screening are genuinely impressive.

Shoop said prospective teachers do not have the same rights to privacy as current employees. They may reasonably anticipate that some districts may require drug testing because the district's interests lie in maintaining a safe and conducive learning environment. School districts may require prospective teachers to submit to drug testing before hiring.

"The Fourth Amendment does not prevent a school from requiring urine, blood or breath specimens under conditions of pre-employment examination," Shoop said. After the teacher is hired, drug testing may only be done if there is reasonable suspicion where there is particularized fact or inference that the employee is then under the influence of a chemical substance.

"You get a constitutional issue if you try random drug testing once the teacher is employed," Shoop said. "The testing of current teachers cannot be justified without suspicion of wrong doing."

School districts may be interested in testing teachers for drugs to determine their fitness to teach, and the effect of an unfounded search may result in loss of employment, contractual rights and possible criminal charges, he said.

Schools are more limited than businesses in the private sector when it comes to requiring drug tests because schools are funded by the government, Shoop said. Private employers may create a policy which requires their employees to submit to random or regular drug testing. However, the employer must have a clear policy and the employees must know about it before it may be applied. The employees then have the option to leave the company if they do not agree with the policy.

"The real issue is not whether schools can or cannot test," Shoop said. "The question is why do they want to do it?" The controversy over drug testing in schools has been growing and holds significant implications for the way schools are run in the future, he said. Real concerns about school safety have resulted in increasing demands for drug screening for both students and faculty.

"The increasing number of drug-related tragedies has heightened the debate," Shoop said. "In a school, the primary reason for drug testing is to eliminate the use of drugs and create a safer school environment."

Shoop said he recommends that school districts write specific and clear policies stating how drug tests may be used by the district to fight a known drug problem.

"Teachers have a tremendous amount to lose," Shoop said. "The drug tests are incredibly invasive, may read a false positive or may be done improperly."

There is a distinction between drug testing for students and for teachers. The primary object of a student search is to preserve safety in schools as it is threatened by drug abuse. However, unfounded random searches still violate the Fourth Amendment, he said.

Shoop said he thought once a student was observed using drugs, the school could take the appropriate disciplinary action without a drug test.

Some schools in Kansas have looked into creating a policy for blanket drug testing the student body, but the procedure would be incredibly expensive, Shoop said. However, Shoop is not aware of any Kansas school districts that have implemented policies at this time.

Courts are also divided on the issue of drug testing student athletes. In some cases, it has been ruled legal to submit student athletes to drug tests if they have been notified before the tests are administered. Other courts have ruled that the school needs a written and publicized policy on drug testing first.

"The risk of ruining a reputation is so great, there are better ways to find out if you have a drug problem," Shoop said.

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For more information contact Bob Shoop at 785-532-5533.

February 1996