Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, March 26, 1995 TAG: 9503280013
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
SOURCE: The Baltimore Sun
DATELINE: WASHINGTON LENGTH: Medium
He will be in the audience as the justices hold a hearing on his case and its central issue: the constitutionality of compulsory drug testing at school. James was told, as a 12-year-old seventh-grader in Oregon, that he, along with others, had to take a urine test even though no one suspected him of ever using drugs.
The constitutional dispute the court will decide by summer focuses on the privacy rights of public school students, particularly student-athletes like James. But it has the potential for wider impact, perhaps producing a major ruling on the government's power to impose the most sweeping kind of drug tests - those conducted at random, without warning, based on no real suspicion that anyone in particular is a user.
Almost unknown a few years ago, random drug testing now exists across the nation in public and private sectors. The number of such tests increased 1,200 percent between 1987 and 1993, according to a survey by the American Management Association. Counting all forms of drug testing, the survey found that 15 million Americans were tested for drugs in 1993, up from 7 million in 1987.
Acton's case dates to 1991, when he tried out for football at Washington Grade School in Vernonia, Ore., a logging town an hour's drive out of Portland. A drug test at the start of the season, plus surprise random tests later, were required of James and others. His refusal started his case.
Asked later in court why he had refused, he said, ``Because I feel that they have no reason to think I was taking drugs.''
He was not available for interviews last week as he and his parents, Judy and Wayne Acton, and brothers, Simon and Jason, traveled by Amtrak to Washington. Two weeks ago, deluged by press calls, the high school sophomore wrote a statement explaining why he is challenging forced drug testing.
``I think what I did has been made into a big deal,'' he wrote. ``But I think I did the right thing and other people should also stand up for their beliefs.''
``Everybody,'' he said, ``should be taught that they have'' the same right of privacy he is claiming, ``before it's taken away.''
``Making kids take a drug test without any proof that they are taking drugs is just like searching a house without a warrant or proof of something wrong,'' he added.
The Supreme Court has issued two rulings on the Constitution and drug testing, and in those it upheld tests only in limited forms: as a condition for someone in a job involving public safety, such as airline pilots, police and firefighter positions, and nuclear power plant jobs, or as a response to a specific incident, like a train crash.
In such situations, testing is triggered by something specific and tangible. But Acton's case reaches the next level: the suspicionless test that occurs without warning and at random. Such testing has become common in recent years as officials have sought to ferret out users who they think might otherwise elude detection.
In Vernonia, school officials had become concerned in the mid-1980s about what they believed to be a rise in student behavior problems. They concluded that drug use was probably a factor. The evidence they cite has been disputed by James' lawyers, who say the signs of a student drug problem were flimsy at best.
Having read in a Portland newspaper about a school drug-testing program in Texas, Vernonia officials decided to try it. At first, they required drug tests for every student engaging in extracurricular activities - from band to drama to student government to sports. Then they narrowed it to sports alone.
As a seventh-grader, Acton went to a practice for the football team, and was handed a drug-testing consent form. He and his father have testified that they, along with James' mother, decided that he would not take the test. In court, his father said the testing sent the wrong signal: that everyone was presumed guilty until proven innocent.
After he was barred from sports for the refusal, his parents sued for him and themselves in federal court.
Their case has been handled by private attorneys in Portland who also are volunteer lawyers for the American Civil Liberties Union Foundation of Oregon. They are taking no fees for their work; the expenses of the lawsuit are covered by the foundation, with money from its own treasury, according to a foundation spokeswoman, Kathy Armstrong.
The family lost the first round of their lawsuit in 1992, when U.S. District Judge Malcolm F. Marsh of Portland upheld the testing policy. After that, James took a drug test ``under protest'' so he could play basketball.
James and his parents took the case on to the 9th U.S. Circuit Court of Appeals, and won there in May. Since then, with the appeals court ruling having blocked forced drug tests, the youth has been playing basketball at Vernonia High without submitting to urine tests, his lawyers say. He also plans to run on the track team.
by CNB