How do we do?

My mother used to tell me that there is a right way and a wrong way to do things. (Lawyers say the same thing, only we call the right way "due process of law.") I thought of my mother?s admonition when I saw a recent article about the drug testing..

My mother used to tell me that there is a right way and a wrong way to do things. (Lawyers say the same thing, only we call the right way "due process of law.") I thought of my mother’s admonition when I saw a recent article about the drug testing policy recently adopted by the Washington Township Schools.

Given the extent of media hype on the subject, no one living in Indiana could still be unaware that drug testing students is the new educational fad. In the wake of a Supreme Court ruling that gives public schools somewhat greater latitude in imposing drug and alcohol tests, ours have literally fallen over each other to require such testing. Currently, the ICLU is litigating a policy adopted by the Rushville school system that permits random, suspicionless testing of its students. The Rushville "model" is by far the most common in Indiana, and the outcome of that case will have a significant effect on schools statewide.

In stark contrast to the policies adopted elsewhere, Washington Township has elected to do something unprecedented: they have evidently adopted a program that follows the constitutional rules.

The legal issue involved in drug testing students has never been whether such tests can constitutionally be required. They can. The issue is: under what circumstances? In America, we require government to have a reason before we allow it to invade the privacy of its citizens. With adults, we require "probable cause." The police could not simply require every third adult crossing Delaware Street to "go in the cup," for example. Police can only stop and search people when there is some evidence that they are engaging in unlawful behavior. With students, in recognition of their tender years and the fact that schools have a measure of custodial responsibility, the requirement is something less than probable cause, something the courts call "individual suspicion." That is, government schools may not insist that a student submit to a drug test unless there is some reason, however slight, to believe that student is taking drugs. It is the random nature of the testing done by many schools that runs afoul of the Bill of Rights.

That is what makes the Washington Township approach so refreshing–and so frustrating. It is refreshing because a decision was made to adopt a program that respected the Fourth Amendment; refreshing because this school corporation has chosen to set a good example for its students by obeying the law of the land. It is frustrating because there is no reason other school systems couldn’t do the same.

I am by no means convinced that drug testing our kids is effective or useful. Too often, I suspect that school boards institute such programs in order to divert attention from more fundamental educational failures. But if a system wants to adopt a testing program, why not adopt one that passes constitutional muster? As my mother might say, if it’s worth doing, isn’t it worth doing right?