National Attention On Missouri Student Drug Testing Case

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By Dan Viets, J.D., SMCR Board Chair

Urine Sample, how to pass a drug test

A closely-watched lawsuit challenging the practice of drug testing all students who are admitted to a public college is working its way through Missouri's federal courts. Linn State Technical College in the town of Linn, just east of Jefferson City, has attempted to institute this unprecedented policy.

The case was argued Monday in the Federal District Court for Western Missouri, Central Division, in Jefferson City, before federal district judge Nanette Laughrey. The case is being followed by national civil liberties advocates generally, and student rights groups in particular.

The American Civil Liberties Union of Eastern Missouri's Legal Director, Anthony Rothert, is litigating the matter on behalf of several Linn Tech students who have been threatened with this gross invasion of privacy. I filed a "friend of the court" brief on behalf of Students for Sensible Drug Policy in support of the student plaintiffs. In that brief, we argued that the evidence shows that the practice of drug testing does not deter use of illegal drugs by students, and, in fact, the data strongly suggests that such testing may actually result in greater use of more dangerous drugs.

That is so because those subjected to testing know that the inactive byproducts of the metabolization of cannabis are detectable for weeks after last use, but indicators of use of heroin, cocaine, methamphetamine, and many other drugs can be detected for only a few days. Commonly used drug tests do not detect the use of psilocybin mushrooms, LSD and certain other drugs at all!

Moreover, by far the drug most used by college students, and others, is alcohol. Yet, the college seems unconcerned about those who use this destructive and dangerous drug.

The 4th Amendment to the U.S. Constitution has been held to prohibit drug testing without cause for most public employees, unless there is "special need" for such testing. The decisions of the US Supreme Court and others have thus far held that students who attend public colleges and universities are also protected from drug tests, which are a form of search, without individualized reason to suspect that the person to be tested has broken the law. Linn Tech argues that it is different from most other public higher education institutions because some students there participate in inherently dangerous activities involving use of heavy machinery and other potentially hazardous work. Thus, they say, there is a "special need" to test their students.

But in fact most students at the school do not do such things, or only do so for brief periods during certain classes. Judge Laughrey previously issued a temporary order prohibiting such testing. The college appealed to the 8th US Circuit Court of Appeals, which reversed Judge Laughrey's order in part. She then reinstated it, limiting the testing to those actually involved in the allegedly dangerous activities.

The hearing on Monday included testimony regarding whether the temporary order will be made permanent. The Court has taken the matter "under advisement." A decision is anticipated within the next few weeks. That may be followed by another appeal and the case could eventually come before the US Supreme Court.

In related news, the Kirksville Daily Expressreported on Tuesday that the Kirksville R-III School District's drug testing program found three positive results out of 135 tests. The first year program cost taxpayers $2,800.

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