PENNSYLVANIA Ruling allows drug-test lawsuit

Few pupils have tested positive under the policy.
HARRISBURG (AP) -- A desire to discourage drug use among pupils is not a sufficient reason to justify "suspicionless" drug screening targeted at student athletes, parking-permit holders and extracurricular-activity participants, the Pennsylvania Supreme Court has ruled.
The justices turned down the Delaware Valley School District's attempt to have a lawsuit in Pike County dismissed, meaning a legal challenge seeking to block the testing filed by two sisters -- who had passed the drug screening and have since graduated -- and their parents can proceed.
The family's lawyer said the ruling provides Pennsylvania pupils with privacy rights beyond the limits of a 2002 U.S. Supreme Court case that upheld random testing of participants in an Oklahoma school district's extracurricular activities.
"What the Pennsylvania court did is said, 'Well, the Pennsylvania Constitution does recognize the privacy right.' That is, it affords the students [a] broader right of privacy than the U.S. Supreme Court held," said the lawyer, Robert N. Isseks.
Court's opinion
The majority opinion, issued last week, said the school district has failed to produce sufficient proof its pupils have a drug problem, has not shown that the targeted pupils contribute to any drug problem and has not described how the policy addresses whatever problem may exist.
The Supreme Court attacked the northeastern Pennsylvania district's testing of "student leaders" as a means of setting an example for the rest of the student body.
"The theory apparently is that, even in the absence of any suspicion of drug or alcohol abuse, it is appropriate to single these students out and say, in effect: 'Choose one: your Pennsylvania constitutional right to privacy or the chess club,'" Justice Ronald D. Castille wrote in a 32-page opinion.
"What lesson does a program targeting the personal privacy of some but not all students, and lacking both individualized suspicion or any reasoned basis for a suspicionless search, teach our young?" Justice Castille wrote.
He said a testing regimen focused only on athletes and student drivers would have been a closer call for the justices because it would raise safety considerations -- as opposed to "students in the band, chess club, drama club or academic clubs," groups the court said "simply do not pose the same sort of danger to themselves or others."
But a three-justice concurring opinion said they were sending the case back "for further factual development, without specifically requiring that the school district proffer evidence of a heightened risk among the [drug-tested] students as compared to the student population as a whole."
Contested the law
The sisters, Kimberly and Jennifer Theodore, were tested because Jennifer belonged to the National Honor Society and academic clubs and Kimberly played several sports and sought a parking permit.
"We really felt that the policy was an invasion of students' rights," said their mother, Mary Ellen Theodore of Milford, Pa. "And their stated aim of what they're trying to accomplish with this policy, which was keep the student body healthy, keep them safe, we don't feel this policy ... is the correct way to go about it."
School district solicitor Michael Weinstein said the Delaware Valley tests, which are still being conducted, have generated relatively few positive test results in the five years they have been administered.
"I think what the district is doing, is trying to do, and other districts are following suit, is essentially trying to balance the principles of citizenship with the safety of students," Weinstein said.