Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, July 18, 1995 TAG: 9507180038
SECTION: EDITORIAL PAGE: A-7 EDITION: METRO
SOURCE: REGINALD SHAREEF
DATELINE: LENGTH: Long
While the decision ostensibly affects millions of public-school athletes, only Justice Ruth Blader Ginsberg's opinion insisted the ruling applied solely to students involved in school-sponsored sports. The other five justices in the majority embraced the much broader opinion by Justice Antonin Scalia, which potentially opens the door to drug testing for all public-school students.
Previously, the court had allowed random drug testing in the public sector only that pertained to work-related duties (for example, police officers who carry firearms or are involved in drug interdiction) or issues of public safety (for example, drug tests on railroad crews after accidents). The recent decision allowing random drug testing for athletes in an Oregon school district greatly broadens these drug-testing guidelines, by allowing intrusion into bodily privacy without any suspicion or cause.
On what legal philosophy does the majority base this decision? In a 1993 William and Mary Law Review article, ``The Meaning of the Fourth Amendment,'' Tracey Maclin, a Boston University law professor, analyzes the paradigmatic shift from the traditional interpretation of the Fourth Amendment to a new standard articulated by the Rehnquist court.
Historically, the central meaning of the Fourth Amendment has been citizen protection from the power and discretion of police or government agents. This analysis sees the amendment as protecting the citizen against the tactics of a police state.
As Maclin writes: ``When viewed this way, the Fourth Amendment synchronizes with other parts of the Constitution designed to limit governmental powers. At a minimum, the Fourth Amendment commands compelling reasons, or at least a substantial justification, before a warrantless search or seizure is declared reasonable.''
Based on this analysis, procedural safeguards - probable cause, judicial oversight on governmental intrusions, and warrants describing the place to be searched or persons seized - are the lodestar for understanding the Fourth Amendment.
During Chief Justice William Rehnquist's tenure, however, a transition from procedural safeguards to the "rational basis standard' has occurred. The majority of the court utilizes a balancing act to resolve Fourth Amendment questions. This approach weighs the government's interest in effective law enforcement vs. the individual's interest in privacy and personal security.
``If the Court can identify any plausible goal that promotes law enforcement interests," Maclin writes, "the challenged police intrusion is considered reasonable and the constitutional inquiry is over.'' Clearly, this approach favors government agents over the citizen's privacy and personal rights.
The court's decision in the Oregon case obviously reflects the success of this new paradigm. The school district, in a logging community, had no school drug problems until the mid-1980s. The community and schools were then engulfed in a drug epidemic, with athletes often the kingpins. The school district tried drug education, drug-sniffing dogs and voluntary drug testing, unsuccessfully. As a final measure, the school district implemented random drug testing for athletes.
In 1991, seventh-grader James Action challenged the urine-test requirements on the grounds it violated both his privacy rights and constitutional provisions for government to have probable cause for searches.
Justice Scalia's majority opinion found that student athletes relinquish certain privacy rights by their mere participation in sports. These include (1) locker-room conditions that offer little privacy and (2) mandatory physical examinations. He also called athletes role-models in the drug war.
The fundamental question for the American public is whether the "balancing act" is the correct analytical approach to Fourth Amendment challenges.
I agree with Maclin's assertion that this model ignores and distorts the historical reality of the Fourth Amendment. The Rehnquist doctrine, at least in this case, undermines the established principle that the discretionary power of police and other government agents cannot be trusted.
What does the Oregon decision do to the principle of presumed innocence? What is to prevent lab technicians from running additional tests (for example, diabetes analysis)? What protects the urine of female athletes from being analyzed for pregnancy?
The court's ruling does open the door for challenges under liberal state constitutions that provide citizens with greater Bill of Right protections than the federal Constitution. A landmark case in California is illustrative. Although the U.S. Supreme Court had approved unannounced drug tests for railroad workers, the California Court of Appeals, in Luck v. Southern Pacific, ruled these tests violated her right of privacy under the California State Constitution. The jury found that Ms. Luck, a clerk, did not operate a train and consequently did not violate the state's compelling interest in protecting public safety. The jury also awarded Ms. Luck $500,000 in damages. New York, Florida, and Texas are other states with liberal constitutions.
One final caveat. Many Americans see the Fourth Amendment as the scourge of the criminal-justice system because it appears to handcuff the police in their battle with criminals. Others see the amendment as a technical loophole for criminals to avoid deserved penalties.
Will this perception change when the guaranteed rights and protections of our children, not those of unsavory characters, are massively violated? The Oregon case is not an issue of hardened criminals raising Fourth Amendment claims but children seeking protection from overzealous government intrusions.
This objection to discretionary school searches is not to suggest that administrators are bad people, but rather that unrestrained administrative power leads to what Tocqueville called "administrative depotism." Can this power be trusted unchecked? History shows it cannot and this is the central meaning of the Fourth Amendment.
Justice Marshall's comment indicates he understood the essence of the Fourth Amendment. However, the majority's ruling in the Oregon case reveals six justices who have abandoned the original intent of this amendment.
Reginald Shareef is an associate professor of political science and public administration at Radford University.
by CNB