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Please begin with an informative title:

Something is happening here but [ I ] don't know what it is...

Our rural county school district recently announced a new suspicionless random drug testing policy [pdf] for all high school and middle school athletes.  The expressed purpose of the policy is for student safety, and the rationale is claimed to be as follows:

A student athlete who uses drugs and alcohol can be a danger to him/herself, his/her teammates or opponents. The board believes that random drug and alcohol testing of these students will deter drug and alcohol use among middle and high school students,
prevent injuries to the student or others and help maintain a safe educational and school activity environment.
I am an ardent opponent of random drug testing, especially in the schools. Such policies ignore 30 years of research which has clearly demonstrated that suspicionless drug testing does not reduce drug use among students, that student athletes are the least likely among their peers to be using drugs and alcohol, and that drug testing of student athletes has no effect on the reported drug use of non-athletes.

Follow me below the fold as I try to wrestle with the Board's decision, and where I illustrate why this particular policy in this particular county may be particularly open to constitutional challenge.

Intro

You must enter an Intro for your Diary Entry between 300 and 1150 characters long (that's approximately 50-175 words without any html or formatting markup).

As the father of a middle-school student athlete, I firmly believe that participation in sports is, in and of itself, a deterrent to drug use. While I wouldn't admit this to my son, the football program is essentially day care for big kids. These students are at school under the watchful eyes of several responsible adults for an additional 3-4 hours per day, five days a week, for months at a time. Even after the season concludes, the coaches offer after-school strength training and conditioning twice a week throughout the school year.

For students not engaged in sports and other extra-curricular activities, the hours between the end of school and when their parents return from work is peak drug use time. Instead of hanging around with the friends, raiding beers from refrigerator or sampling the medicine cabinet, these kids are busting their butts on the field. On several occasions, I watched as 13-year-olds pushed themselves to the point where they ripped off their helmets, vomited on the field, then put their helmets back on and continued running sprints. My son was often so exhausted, he would fall asleep on the short ride home after practice.

These are the kids that Justice Ruth Bader Ginsburg had in mind when she wrote that a policy that invades the privacy of those who need deterrence the least, and overlooks those students most at risk of drug abuse "is not reasonable, it is capricious, even perverse."

Suspicionless drug testing in schools does not reduce drug use. This is the conclusion of a wide range of experts, including:

American Academy of Addiction Psychiatry
American Academy of Pediatrics
American Public Health Association
American School Health Association
National Association of Social Workers
National Council on Alcoholism and Drug Dependence
National Education Association

Studies have shown however, that suspicionless drug testing (a) increases feelings of hostility toward the school, (b) reduces the frequency with which parents discuss drugs with their children, and (c) increases the reported likelihood of future drug use. Several studies have examined the wished for "spillover effect" that posits that testing the athletes will cause other students to reduce their drug use; to date, not a single study has demonstrated such an effect.

in 2011, less than 15 percent of school districts in the country performed student drug testing. Many districts have dropped their suspicionless testing program after discovering that it failed to serve as a deterrent, was not cost-effective, and invited lawsuits. For example:

Dublin County, Ohio ended their $35,000 per year testing program and instead hired two full-time substance abuse counselors.

Guymon, Oklahoma schools dropped their $24,000 per year testing program, and instead hired a school resource officer.

Olentangy, Ohio ended their 15-year program after concluding the rarity of positive tests could not justify the $180,000 annual cost.

Shasta, California ended their drug testing program after spending $100,000 defending against lawsuits.

I have been unable to wrap my head around the question of why a school board would initiate such a policy in direct contradiction to all of the available science, against the advice of most experts in the field, and against the documented lack of deterrence.

This are my questions to the community: why and why now? Why is it necessary to fabricate a rationale based on the "safety" of the athletes, when that could easily be refuted? I cannot understand why a school board would willingly endure the costs of such a program, the complexity of the associated overhead, and the potential for liability. There must be something else at play.

A Challenge?

There are a few notable features that I believe will make this particular policy in this particular county ripe for constitutional challenge.

1. Article 1, Section 20 of the North Carolina State Constitution is more restrictive that the U.S. Constitution

General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.
In 2009, the North Carolina Court of Appeals ruled that a Graham County Schools policy which required all school employees to submit to random suspicionless drug testing was unconstitutional. The court described the collection and testing of school employees' urine to be "remarkably intrusive," and found that the county failed to present any evidence of an actual drug problem among the employees to be tested, nor that any students had ever been harmed by an employee under the influence of drugs or alcohol.
...the evidence completely fails to establish the existence of a “concrete” problem which the policy is designed to prevent.
2. The Board of Education denies that a serious drug problem exists among the student athletes.

I emailed each member of the Board of Education expressing my concern over the proposed policy and asked the straightford question: "Is there a serious drug problem among the middle school and high school athletes in our district?"

The Superintendent of Schools responded:

Unfortunately there are drug issues in all schools and our BOE wants to take a proactive stance to protect the safety and well being of students involved in athletics due to the nature of safety in sports.
The Assistant Superintendent of Schools responded:
I certainly would not say we have a serious drug problem, but any use / abuse is serious and we hope to get ahead of this issue before it could become a serious problem.
The Chairman of the Board of Education provided a surprisingly candid response:
In order for a student to participate in sports they must be drug free. Random testing will be done to help insure that. a serious problem , if I say no , someone may say I'm not taking it serious enough and if I say yes , they will say I am stretching it a little...
3. Suspicionless drug testing is not conducted by the overwhelming majority of school districts in North Carolina.

I spent much of this past weekend reviewing the policy manuals of all of the county school districts in North Carolina. Out of 100 county school districts, only 22 conduct district-wide suspicionless drug testing of High School athletes. Only 8 conduct suspicionless drug testing of Middle School athletes.

4. Drug testing of student athletes is neither required nor recommended by the governing bodies of athletics in North Carolina Schools

The Middle/JuniorHigh School Athletic Manual for Public Schools of North Carolina published by the North Carolina Department of Public Instruction Academic Services and Instructional Support provides regulations for all athletic activities in North Carolina schools. The manual makes no reference to safety issues arising from drug use by student athletes, and neither requires nor recommends drug testing of student athletes.

The North Carolina High School Athletic Association (NCHSAA) is the governing organization of high school athletics in North Carolina, and is responsible for implementing the rules outlined in the Middle/JuniorHigh School Athletic Manual. Neither the NCHSAA nor its Sports Medicine Advisory Committee have taken a position on drug testing of student athletes, nor cautioned against safety issues resulting from the use of drugs by student athletes.

5. The school district allows parents to set limits on the schools' tutelary responsibility for their children

In the past year, I received permission slips from the school district that provided me the opportunity, if I so chose, to:

(a) opt my fifth-grade child out of watching a video on puberty
(b) opt my seventh-grade child out of attending a fact-based course on reproduction
(c) opt my seventh-grade child out of dissecting a frog, and perhaps most importantly,
(d) opt my seventh-grade child out of receiving corporal punishment.

Yes, this particular school district still practices corporal punishment, "either with the palm of the hand or a wooden paddle."  Fortunately, they allow parents to say, "Hell No!" The drug testing policy, however, provides no such option. If I choose to protect my parental rights and responsibilities, and his constitutional rights, the school board would not allow my child to participate in sports. This is also true of the policies of the 22 school districts that perform suspicionless testing: if you do not sign that section of the form, your child cannot participate in sports (or other extracurricular activities in other districts).

What's Next?

The district has not applied for a grant to administer the program. Minutes of the Board Meeting when it was first brought up indicate that they hope to fund the program through funds provided by the various school's Booster clubs (whom I will be contacting this week), and through funds allocated for the Athletic programs.

The policy has been fast-tracked for approval on May 20. I have written several editorials in the local weekly on the issue, and am preparing editorials for the two local daily newspapers. Unfortunately, most of the parents around here are subject to testing at work, and therefore have no problem with the state demanding urine from their 12-year-old son or daughter. I have a very serious problem with it, and would like your suggestions on how best to combat it.

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