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John Whitehead's Commentary

A Student's Dilemma: Football or Fourth Amendment Protection?

John Whitehead
On two separate occasions this term, Supreme Court has refused to hear cases involving the constitutionality of drug testing students. Also, twice this term the Court sent mixed signals to our youth regarding their constitutional rights and civil liberties. Unfortunately, the message today's students are hearing clearly resonates with hypocrisy.

The same students that are being educated about the Constitution and the Bill of Rights in their government classes are being stripped of their own constitutional rights when the bell rings and class is over. In its 1995 landmark decision in Vernonia School Dist. 47J v. Acton, the Supreme Court determined that the school district's policy of randomly drug testing student athletes was constitutional. While search and seizures typically require probable cause or a warrant, the Supreme Court made an exception in allowing searches without probable cause in public-schools, explaining that "'special needs' exist in the public school context"-such that requiring warrants or probable cause would interfere with the needs of teachers and school administors' to maintain order and to swiftly enforce discipline.

In the 6-3 ruling, the Court proclaimed that students have a lesser expectation of privacy since they are in "temporary custody of the State as schoolmaster." And because student athletes are subjected to mandatory physical exams and communal locker rooms, they supposedly have an even lesser privacy expectation. Differentiating between the rights of a non-athlete student and a student athlete conflicts with the premise of the constitutional guarantee of "equal protection." Thus, with words we are teaching our children that the Constitution is a hallowed document and that the Bill of Rights ensures civil liberties, but by our actions we are teaching them that these constitutional rights are expendable.

Student athletes are not the only students who must choose between their privacy rights and participation in extracurricular activities at school. In Rush County, Indiana, the school district requires students participating in any extracurricular activity, whether it be football or chess club, to submit to drug testing. The constitutionality of this policy was challenged, but in October 1998, the Court left intact a lower court's ruling upholding the constitutionality of the district's policy. However, in March 1999, the Court let stand the 7th U.S. Circuit Court's ruling that an Anderson, Indiana school district policy requiring suspended students to submit to a drug test before they could return to school was an unconstitutional violation of the students' privacy rights. By allowing this decision to stand, the Supreme Court took a small step towards protecting the constitutional rights of students. By refusing to rule on these two cases, however, the Court forfeited an opportunity to clarify the murky area involving students and their privacy rights.

In the meantime, the "war on drugs" intensifies in the school system, with the latest casualties being the students and their Fourth Amendment right to protection from unreasonable searches. According to the Indiana School Boards Association, drug testing students without suspicion of drug activity is justified in that "teachers are no longer concerned about students chewing gum in classrooms...they must now be concerned with children smoking crack or shooting high-powered rifles." Yet subjecting athletes or student club members to random drug tests will not necessarily curtail drug use-rather, it will act as a deterrent to students otherwise interested in extracurricular activities. Ironically, school age children who would usually spend the afternoon at ball practice or a school club meeting will be roaming around unsupervised, thus, more likely to engage in drug activity than if they were participating in a supervised extracurricular activity.

Have we already forgotten the Supreme Court's monumental decision thirty years ago, in Tinker v. Des Moines Community School District, when Justice Abe Fortas wrote, "It can hardly be argued either that students or teachers shed their constitutional the schoolhouse gate." While Justice Fortas was referring to the students' First Amendment rights in that opinion, it follows that students' do not "shed" either their First or Fourth Amendment rights at the schoolhouse gates.

No longer can we afford to allow our courts or our educators to "say one thing, but do another." The time has come for the Court to send the message to the schools, particularly the students, that the Fourth Amendment's constitutional protection from unlawful search and seizure applies to everyone, regardless of age or education or extracurricular participation.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at

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