Mandatory Drug Testing in Schools - Case Study Example

Mandatory Drug testing in Schools Summary: Drug related crimes are increasing and adolescent misbehavior and indiscipline is being exacerbated through drug use in schools. Drug use is also associated with a multitude of health problems, all of which is a hindrance to students in leading fruitful, productive lives. Mandatory drug testing has been mooted as a way to solve problems related to drug abuse, to modulate and regulate student conduct and to protect them from the harmful effects of drug use. However, this raises several legal issues of violation of privacy of the students and poses a threat to the fragile bond of trust between the students and teachers. Introduction: The Australian Institute of Health and Welfare estimated that in 1988, there were over 3 million illicit drug users over the age of 14, of which about 40% of the males and 35% of females reporting that they had tried an illicit drug at least once.1 Corroboration for these high rates of use among school students were also provided in a study conducted by the Anti-Cancer Council of Victoria.2 With increased drug use, its harmful effects have become evident, resulting in an increase in drug overdose deaths in certain cases. For example, while there were only 70 recorded drug overdose deaths in 1979 (10.7 per million) while in 1995, the figure had jumped to 550 drug overdose deaths, which works out to 67 deaths per million.3 Drug use also poses other health risks, leading to drug induced injuries, mental problems and diseases such as hepatitis C and HIV, which are caused by intravenous drug use. Adverse effects also result from drug dependency and addiction, while impacting adversely upon family and school life and leading to an increasingly criminal lifestyle. The economic cost of illicit drug use to society has been estimated to have jumped by 26% in the four year period from 1988 to 1992.4 Drug dependency may result in adolescents resorting to theft and robbery to finance the expensive habit, while those graduating from high school may find their employment prospects adversely affected due to drug related defective work performance. Drug use affects familial and other relationships adversely, causing increasing isolation of a student who is using drugs or leading to an alarming increase in drug use and related problems among other students as well, as students share drugs and needles. The WHO has recognized four separate classifications of drug use patterns. The first is oral ingestion which is associated with the least harmful effects, but could be slowly ingested into the blood stream, causing damage to the nervous system. Inhalation absorbs the drug immediately into the system and poses the threat of an overdose. Intravenous intake of drugs is the most dangerous and causes several diseases over the long term, while also posing the threat of an overdose.5 Increased cannabis use during adolescence has been shown to lead to mental and personality disorders.6 In Australia, the use of alcohol, tobacco and drugs has been deemed responsible for one in every five deaths, with billions of dollars lost in law enforcement, health care and lost productivity7. Moreover, heavy use can cause suicide attempts and deep depression resulting from drug deprivation.8 The earlier the commencement of drug use, the greater the personal risks to health, mental, social and economic well being of the individual. Aggression, non compliance and deviant behavior, low self esteem and self acceptance in adolescents are also signals of drug use and growing dependency which must be tackled immediately to prevent further harm to an adolescent’s future life9. Therefore, it becomes vital that drug problems are tackled at school level and that adolescents are restrained from drug use through education and other measures. Mandatory Drug testing In order to combat the rising tide of drug use among students and teachers, with the attendant disciplinary and performance related problems, school authorities have deemed it necessary to introduce the policy of mandatory drug testing, since it is their responsibility “to ensure that employees and students report fit for duty” which in fact, places an obligation upon them to implement severe measure to ensure that the use of drugs is punished.10 School administrators are feeling pressured to introduce measures to prevent drug use within schools and one of the means that is being employed is the introduction of random suspicion less- drug testing among students, in order to identify the drug users and abusers. In the state of Indiana, mandatory drug testing had been implemented in most schools during the 1999-2000 school year; however this policy was challenged in the Courts by the Indiana Civil Liberties Union on grounds of unconstitutionality, as being violative of the First Amendment rights of the students to privacy.11 Subsequently in August 2000, the Indiana Court of Appeals ruled that random drug testing of students was unconstitutional under the Indiana Constitution12. However, a survey conducted by McKinney among Indiana High School principals on the effectiveness of drug testing programs revealed that 94% of principals believed that random drug testing discourages drug use among students and 73% reported lower drug use when students are subject to a drug testing policy.13 The belief in the necessity for mandatory drug testing to reduce drug use among students is echoed among the residents of the Texan town of Lockney, where there was almost unanimous support for the School District’s introduction of a mandatory drug testing policy in 2000. However, the only one of the 2200 residents of the town who resisted this policy was Larry Tannahill. The School Board asked parents to sign consent forms allowing for their wards to be subject to mandatory, random drug tests for teachers and students.14 A refusal to sign the consent form meant that the children were to be treated as if they had failed the test. Penalties imposed for failing a mandatory drug test were (a) a 21 day ban from extra curricular activities in the school (b) three sessions of drug counseling with a corresponding period of in-school suspension. The reasons offered by the school in support of mandatory testing was the perception that there was a drug problem in the school and that the measure was necessary in the interest of public health and in order to help the students learn better and resist the pressure from their peers to take to drug habits. Support of the tough posture of the school is supported by the fact that the small town is virtually drug free. However, Tannahill refused to sign the form on the grounds that it violated his son’s first amendment rights to privacy and indicated that the school wanted to prove that it could raise his son better than he personally could, and was in effect, threatening to take punitive action against his son if he refused to sign the consent form. He won his suit in the Supreme Court and Judge Cummings clarified the position of the Court as follows: “The Court recognizes the good faith efforts of school districts in their attempts to win what has become a frustrating war on drugs; it understands the motives of the District to protect its students. The Court further recognizes that given advancements in technology and research, a mandatory drug policy of testing every teenage student could potentially eliminate drug use for such an impressionable segment of our population. But with such an intrusion also comes a great price to citizens constitutionally guaranteed rights to be secure in their "persons, houses, papers, and effects.”15 The case against drug testing In the light of the harmful effects of drug use and the fact that mandatory drug testing could potentially eliminate the drug problem, as identified by Judge Cummings, the biggest argument against such policy is the legal challenges posed, which raise the issues of unconstitutionality in their violation of individual rights and freedoms. The invasion of privacy and the arbitrary imposition of intrusive searches and tests without a solid legal backing is unconstitutional in a democracy which is founded upon the sanctity of individual rights to privacy and freedom. The violation of First Amendment rights coupled with the Fourteenth Amendment were also at issue in the case of Linke v Northwestern16 where a blanket order of mandatory drug testing in Indiana schools was deemed unconstitutional. In the case of Willis v Anderson Community School17, the Court held a similar view, stating that mandatory drug testing of any student suspended for fighting would be deemed a violation of the Fourth Amendment right, which protects individuals against unreasonable search and seizure which mandatory drug testing constitutes. In the case of Odenheim v Carlstadt-East Rutherford regional School District18, the Court stated that mandatory drug testing "an attempt to control student discipline under the guise of medical procedure." The ethical aspects of drug testing also involve the confidentiality of student medical records and personal information. Drug screening at the workplace requires medical officers to ensure adequate safeguards to protect patient confidentiality; a worker must be made aware that such tests will be conducted and his consent sought before they can be implemented.19 The imposition of mandatory drug testing therefore ignores the ethical aspects involved in drug testing and forces the students to submit to such a test by virtue of their weaker position in having to compulsorily attend school; “Every child, at least in Texas, must attend school. School attendance does not trigger an instant diminution of rights."20 Another issue that is often raised in connection with mandatory drug testing is that of unreliability of the tests. False positive results indicating the presence of a drug, can be obtained when a person has taken over-the-counter medication or herbal tea.21 There are also instances where a positive urinalysis test cannot be confirmed by alternative testing methods.22 detecting illicit drug use in adolescents is difficult. 23Due to differing metabolisms and amounts ingested, urinalysis and breath analyzer tests may not accurately reflect a user’s use or abuse of a drug. Moreover, since urine analysis is the preferred mode of testing and must be closely monitored, this also causes shame and embarrassment to both the person administering the test and the person taking it, which is an intrusion on privacy. In the case of Patchogue-Medford Congress of Teachers v. Union Free School District24 mandatory testing was opposed on the grounds that “there must be some degree of suspicion before the dignity and privacy of a teacher may be compromised by forcing the teacher to undergo a urine test.” In Australia, the issue of mandatory drug testing has not yet arisen before the Courts. However, experts are of the view that introducing mandatory drug testing in schools is likely to damage the fragile bonds of trust and communication between staff and students. According to Father Norden, the author of a comprehensive study on drug testing in Catholic schools, the justification behind mandatory drug testing may appear noble and motivated by the interests of the students, but may in reality be only an effort by the schools to protect their own reputations.25 However, Brain Mittman is of the view that drug testing may actually be helpful to some students, since teenagers who are weak and fall “victim to drug abuse generally are incapable of dealing with it.”26 In view of the harmful effects of drugs upon students, the advocates of drug testing offer the argument that drug testing will provide the proof of drug use when it is suspected and deter students from using drugs while also reassuring parents about the safety of the school environment.27 In the case of Todd v Rush County School28, the Court of Appeals upheld a drug testing program of all athletes, on the grounds that “school administrators must have reasonable means at their disposal to deter conduct which substantially disrupts the school environment.” Moreover, random suspicion-less drug testing has been held to remove the question of arbitrary or discriminatory testing29. One of the first cases on mandatory drug testing in schools was Schaill v Tippecanoe School Corporation30 in which the Court upheld the School’s drug testing policy for athletes. The issue of privacy However, in view of the violations of individual freedoms and the issue of intrusion into a student’s privacy, is mandatory drug testing justifiable? In the case of Earls v Tacumseh Public School District31 the Court stated that drug use thwarts learning and a school’s mission and a school should be able to take pre-emptive measures rather than allow it to grow to epic proportions. In the most recent U.S. supreme Court decision in the case of Veronia v Acton32, the issue of violation of a student’s Fourth Amendment right was struck down by the Supreme Court and this has become a landmark case that has set a precedent.33 The school policy was that participation in interscholastic tests mandated submission to random drug testing. A seventh grader James Acton was given a drug-test consent form to be signed by him and his parents; they refused and James was suspended from interscholastic athletics. The family sued the school district on grounds of violation of the Fourth Amendment, however the Court held that the Fourth Amendment permitted such school policies, since James had a choice to submit to or refuse to allow the partial intrusion of his privacy in the interest of participating in interscholastic athletics. In arriving at its decision on the case, the Court balanced the rights of the individual to his privacy against the rights of the school to provide a drug free environment and allowed greater importance to the latter, thereby setting aside parental objections on the basis of the Fourth Amendment34. The Court also pointed out that students tolerate intrusions into their privacy in other instances as well, such as for example athletes who change their clothes in front of each other. This is an important case since it establishes a precedent where the question of setting limits in drug testing vis a vis intrusions into privacy. In Australia, the Privacy Act of 1988 (Cth) allows an individual whose privacy rights are infringed to make claims against anyone who discloses confidential information about him without his consent. In the UK, the issue of privacy was raised in the case of Campbell v MGN Limited35 and the House of Lords held that the law imposes a duty of confidence whenever a person receives information that he knows is private and that the essence of a tort of privacy would lie in misuse of such confidential information.36 The issue that was raised in the case was Miss Campbell’s drug treatment, but the English position is not clear on the existence of a tort of privacy. Moreover, another important issue that was raised in this case was similar to that proposed in the Veronia case, i.e, in certain cases, some intrusion into privacy is allowable, especially in the case of celebrities, in the interest of the public right to information and the freedom of the press. In the Veronia case, such intrusion into privacy was allowed in the interest of the school’s rights to provide a drug free environment. In Australia, there has been sufficient indication through case law about the development of a tort of privacy that would not permit mandatory drug testing in students if there is any danger of such confidential information being released without the student’s consent. Early developments such as the case of Victoria Park racing v Taylor 37 the High Court had held that there was no common law right to privacy in Australia. However, subsequent to the passage of the Privacy Act, in the Lenah game Meats case38 the Court, through its decision, opened the door to a possible action in a tort of privacy. The Plaintiff in this case was a corporation and objected to the secretly recorded tapes of its activities in killing possums on the grounds that a broadcast of the video would constitute an actionable tort of invasion of its privacy. Since the Plaintiff was a corporation the Court did not all its suit, however it stated specifically that its decision did not preclude the existence of an actionable tort of privacy. The recent decision of the Queensland District Court in the case of Grosse v Purvis39 is significant because the Court held that there was an actionable right of privacy at common law. Although the case does not draw upon the Australian Privacy Act, nevertheless it opens the door for individuals to potentially sue a public authority such as a school under the provisions of the Privacy Act. The judgment in Grosse v Purvis has established that it is possible to sue for a breach of privacy under common law in Australia and substantial damages were awarded in this case to the Plaintiff. The New Zealand Court also recently supported actionable tort of privacy under common law in the case of Hosking & Hosking v Simon Runting and Ors40. In their judgment, Gault P and Blanchard J set out the requirements for a claim in tort of privacy: (a) the existence of facts in which there is a reasonable expectation of privacy; and (b) publicity given to those private facts that would be considered highly offensive to an objective reasonable person.41 The Hoskings lost their action in tort since some intrusion into the privacy was permissible since they were celebrities. The case of Grosse v Purvis has established a precedent for action on the tort of privacy in common law. Therefore Australia appears to be moving decisively towards a tort of privacy. However, it may be noted that there is also judicial comment within the text of the decision which indicates that there is also potential for the application of a tort of harassment. Conclusion: Privacy and Mandatory Drug testing Since there are no set precedents in Australian case law, the question is, where should the limiting line be drawn between unreasonable intrusion into privacy vis a vis the need to protect students from the harm caused by drugs? As pointed out by Mittman, some weak students may actually benefit from drug testing.42 Drug testing of students who participate in athletic and extra curricular activities have been upheld by the Courts.43 The case of Earls v Tecumseh School District supported mandatory testing for all students on the grounds that “a finding of individualized suspicion is not necessary” because of the school’s custodial responsibility for all students. This case also addressed the issues of embarrassment of students taking the test by clarifying that a teacher could wait outside the closed restroom with tests being confidential. On the other hand, cases such as Willis v Andersen Community School Corporation44 have sided with a student’s rights to privacy.45 In their review of the Veronia case, Stefkovich and O’Brien pointed out that drug use can create mistrust and resistance from students, thereby exacerbating the problem rather than relieving it.46 Hutton corroborates this view, stating that a drug testing policy sets the stage for antagonism between the school and students47. According to Wald, drug testing could actually be setting barriers for students in participating in extra curricular activities, especially marginal students48. Furthermore, in Australia, the case of Grosse v Purvis49 has established that a tort in privacy may be actionable in the Courts, thereby providing students the means to file suit against mandatory drug testing. Should Court decisions therefore be the basis upon which school boards make the decision about introducing mandatory drug testing? DeMitchell and Caroll believe that they should not necessarily “dictate action” unless they are a party in the lawsuits.50 Thus, on the whole, it appears that the decision on drug testing in schools must focus on finding the balance between safety and health of students versus their constitutional rights51. As Deivert states, “a careful monitoring program could help ascertain that balance52. Bibliography * Australia Institute of Health and Welfare 1995, 1998 National Drug Strategy Household Surveys , Drug use in Australia and its health Impact, Canberra 1999. [Online] Available at: www.aihw.gov.au * Australian Broadcasting Corporation v Lenah Game Meat Pty Ltd, (2002) 208 CLR 199 * Arnold, T. L. The constitutionality of random drug testing of student athletes makes the cut . . . but will the athletes? Journal of Law & Education, 1996, 25(1) pp 190-198. * Brook, JS, Cohen, P and Brook, DW, Longitudinal study of co-occurring psychiatric disorders and substance use. Journal of the American Academy of Child and Adolescent Psychiatry, 1998, 37(3), pp 322-330. * Brooks v East Chambers Consol. Indep. School District, 730 F Supp 759 at 766 * Campbell v MGN Limited [2004] UKHL 22. * Carpenter, L. J. (1996). The Supreme Court’s view on drug testing high school athletes. Drug Strategies, February, 13-17. * Catholic study slams school drug tests The Age, February 14,2005. [Online] Available at: http://theage.com.au/articles/2005/02/14/1108229881321.html?oneclick=true; accessed 1/15/2006 * Collins, DJ and Lapsley, HM, The Social costs of drug abuse in Australia in 1988 and 1992 AGPS, Canberra 1996 * DeMitchell, T. A., & Carroll, T. Mandatory drug testing of student athletes: A policy response to Vernonia School District v. Acton. Journal of School Leadership, 1997, 7: 50-68. at pp 66 * Deivert, R. G, The role of the Constitution in the drug testing of student athletes in the public school. Journal of Alcohol and Drug Education, 1991, 36(2) pp 32-41. * Dowling-Sendor, B. (2000). Second thoughts on drug testing. American School Board Journal. * Earls v Tacumseh Public School District (115 F Supp 2d 1281) (2000) * Ethical aspects of drug testing Consensus Opinion statements. [Online] Available at: http://www.acoem.org/guidelines/article.asp?ID=30; accessed 1/19/2006 * Grosse v Purvis [2003] QDC 151 (16 June 2003) * Hall, W and Darke, S, Trends in opiate overdose death in Australia 1979-1995 NDAC Technical Report No: 49, National Drug and Alcohol research Centre, Sydney, 1997 * Hillman, SD, Silburn, R.S., Green A and Zubrick S, Youth suicide in western Australia involving cannabis and other drugs. Western Australian Drug Abuse Strategy office, 2000. * Hosking & Hosking v Simon Runting and Ors (2004) NZCA 34 (25 March 2004) * Hutton, C ,Schools as good parent: Symbolism versus substance in drug and alcohol testing of school children. Journal of Law and Education, 1992, 21(1), pp 33-69. * Jones v McKenzie, 628 F. Supp. 1500, DDC (1986). * Joy v. Penn-Harris-Madison (212 F.3d 1052) (2000) * Letcher, T and White V, Australian Secondary Students’ use of over-the-counter and illicit substances in 1996. Anti cancer Council of Victoria, 1999. * Lewis, John, et al, Drug and Alcohol Abuse in the Schools: A Practical Policy Guide for Administrators and Teachers on How To Combat Drugs and Alcohol. Topeka, Kansas: National Organization on Legal Problems of Education, September 1987. ERIC Digest 281 304 * Linke v. Northwestern Sch. Corp., 734 N.E. 2d 252 (Ind. Ct. App. 2000). * Loxley, Wendy, Tombourou, John, et al, 2004. Report of the National Drug Research Institute and the Centre for Adolescent Health, The prevention of substance use, risk and harm in Australia: a review of the evidence at page 23. * Mahon, J. P. (1995). “Vernonia v. Acton”: Should schools conduct random drug tests of student athletes? NASSP Bulletin, 79(573), 52-55 * MacDonald, S et al, The limitations of drug screening in the workplace . International Labor Review132(1), 1991, pp 95-113 * McKinney, Joseph R, The effectiveness of drug testing programs: A State-wide follow up study [Online] available at: http://www.studentdrugtesting.org/McKinney%20follow%20up%20study.PDF * Mittman, Brian Noal. "This Students Surprising Plea: Make Drug Testing Mandatory for Your Teenage Students." The Executive Educator, 9(5) (May 1987) at pp 36 * Munro, Geoff, Drug testing in schools. [Online] Available at: http://www.vichealth.vic.gov.au/assets/contentFiles/VicHealthLetter13_00.pdf; pp 14-15 * Newcomb, M, Maddahian, E and Bentler P, Risk factors for drug use among adolescents: Concurrent and longitudinal analysis American Journal of Public health, 1986; 76:5 * Patchogue-Medford Congress of Teachers v. Union Free School District, 70 NY2d 57, 70 (1987) * Privacy Law Update, JWS [Online] Available at: http://www.jws.com.au/pdf/210%20-%20Privacy%20Law%20-%20June%202004.pdf; accessed 1/20/2006 * Ridolfo, B, Stevenson C, The quantification of drug caused mortality and morbidity in Australia, 1998. Cat. No: PHE 29. Canberra: Australian Institute of Health and Welfare, 2001. * Schaill v. Tippecanoe School Corporation (679 F. Supp. 833 [1988]). * Stefkovich, J. A., & O’Brien, G. M,. Students’ Fourth Amendment rights and school safety: An urban perspective. Education and Urban Society, 1997, 29(2), pp 149-161. * Tannahill v Lockney Independent School District, Judgment available online at: http://cryptome.org/tannahill.htm; accessed 1/19/2006 * Todd v. Rush County School., 139 F. 3d 571 (7th Cir. Ind. 1998), cert. denied, Todd v. Rush County School. 142 L. Ed. 2d 53 (1998) * U.S. District Court overturns mandatory drug tests in Texas school, Lockney policy was nation’s broadest. 3/16/01. [Online] Available at: http://www.stopthedrugwar.org/chronicle/177/lockney.shtml; accessed 1/19/2006 * Volpert, T. R., & Tremaine, D. W. Drug testing of interscholastic athletes in public schools. In National School Boards Association (Ed.), Legal handbook on school athletics. Alexandria: Council of School Attorneys, 1997. * Veronia v Acton 515 U.S. 646 (1995) * Victoria Park racing and recreation grounds Company Ltd v Taylor, 1937) 58 CLR 479. * Wald, J, Extracurricular drug testing. Education Week, 2002, 21 pp 34, 36. * Willis v. Anderson Community School Corporation, 158 F.3d 415 (7th Cir. Ind. 1998) Read More