Tuesday, March 19, 2002

One thing is clear from Dahlia Lithwick's recent little tirade in Slate: she really, really doesn't like drug-testing in high schools. She's entitled to her opinion, of course; but as a lawyer writing about a Supreme Court hearing, she should at least try not to let her snide interjections interfere with a clearheaded discussion of the relevant legal issues.

For example, it is self-evidently not true that, as she puts it, "[t]he high court wants your urine, and they have the power to take it." On the contrary, various boards of education have decided to conduct drug tests on their extracurricular-activity-bound high-school students, and it is not the Supreme Court's place to second-guess the drug-testing policies of these democratically elected governmental bodies--unless, of course, they violate the Constitution. The question at issue, therefore, isn't how much Dahlia Lithwick or the ACLU or anybody else hates drug-testing, but rather whether the Constitution (specifically, the Fourth Amendment) prohibits mandatory urine tests of these high-school students as "unreasonable searches and seizures". And there is one word that never appears in Ms. Lithwick's screed that, had she mentioned it, would have exposed the hypocrisy of the Fourth Amendment case against drug-testing (and, indeed, of most modern Fourth Amendment jurisprudence). That word is "steroids".

Urine tests to detect steroids are commonplace in sporting events, including many high-school competitions. As far as I know, no specifically steroids-targeted testing program has ever even been challenged in court on Fourth Amendment grounds--most probably for the simple reason that the legal establishment happens to agree with the educational establishment's opposition to steroid use, whereas decriminalizing drug use is something of a cause celebre among civil liberties-minded lawyers. (The brief for the anti-testing side in some of the relevant cases explicitly points out that steroids were not among the drugs tested for--presumably because including steroids would have made the tests more "legitimate".) As a matter of Constitutional principle, however, a urine test for steroids is indistinguishable from a urine test for other drugs; viewed strictly as "searches and seizures," they are identical. A distinction between the two can only be based on arguments about the relative importance to schools (or to society at large) of detecting and discouraging steroid use, compared to, say, marijuana use, among high-schoolers.

Now, reasonable people can certainly differ on this issue, as well as on other governmental search-related matters (such as whether drunk driving is enough of a threat to merit random breathalyzer tests, or--to pick a topical example--whether suicide hijackings are enough of a threat to justify mandatory highly intrusive luggage and body searches at airports). But whatever one's opinion in each case, these are all clearly proper questions for public policy debate, subject to individual views and preferences regarding societal values and priorities. And in any sane democracy, they would be decided democratically, by legislators and executives accountable and responsible to the people (Ms. Lithwick and her lawyer friends no more or less than anyone else)--not by the arbitrary whims of nine lifetime-appointed judges engaging in elaborately creative exegeses of Constitutional scripture.

But I keep forgetting: this is America.

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