On October 5, the U.S. Supreme Court declined to hear a constitutional challenge (Todd v. Rush County, No. 97-2021, 1998WL334388) to an Indiana school district's policy of randomly drug testing all students who participate in extracurricular activities (David G. Savage, "High Court Lets Schools Expand Drug Testing," Los Angeles Times (Washington Edition), October 6, 1998, p. A1; Tony Mauro, "High court returns in a flurry, lets stand drug testing in schools," USA Today, October 6, 1998, p. A1; Richard Carelli, "Justices allow school drug tests," Boston Globe, October 6, 1998, p. A3; Lorraine Eaton and Denise Watson Batts, "Supreme Court lets ruling on school drug tests stand," Virginian-Pilot (Norfolk), October 6, 1998, p. A1).

The Supreme Court had previously upheld drug testing of high school athletes because of safety issues relevant to sports (Veronia School Dist. 47J v. Acton, 57CrL2200, 1995WL373274, 115 US S.Ct. 2386 (June 26, 1995)). In 1996, following the Veronia ruling, the Rush County (IN) school district announced a policy to randomly test for drug use all students who participate in any extracurricular activity, including clubs and other nonathletic activities. Those who tested positive were barred from participating in extracurricular activities or from driving to school until they passed a future drug test.

The Indiana ACLU file suit against the school district saying that many affected students were not suspected of drug use and were not participating in potentially dangerous activities, such as sports. A U.S. district judge upheld the drug testing program (Todd v. Rush County, 983 F.Supp 799 (S.D. Ind. 1997)), and the 7th Circuit U.S. Court of Appeals in Chicago agreed on a 7-4 decision (Todd v. Rush County, 139 F.3d 571 (7th Cir. 1998)).

In an editorial, the Home News Tribune, one the largest newspapers in New Jersey, wrote: "Random drug tests. . .are valuable tools in the war against student drug abuse and they must not be discounted." The paper added: "The [New Jersey] school boards association embraces a broader and more realistic policy -- school districts should be able to test randomly if they suspect drug abuse is a problem in the community. Unfortunately, these days that applies to most communities. Students who aren't using drugs shouldn't be afraid of random testing and any embarrassment they might suffer is inconsequential" (Editorial, "Random drug tests work for students," Home News Tribune, October 6, 1998, p. A8).

SEVENTH CIRCUIT RULES AGAINST INDIANA SCHOOL'S DRUG TESTING POLICY

On September 9, the U.S. Court of Appeals for the 7th Circuit ruled that the Anderson (IN) Community Schools' drug testing policy was unconstitutional (Willis v. Anderson Community School Corporation, 1998 WL 569114, (7th Cir. 1998)). An appeal by Anderson Community Schools for a rehearing was rejected on November 2 by the 7th Circuit, which said that if school officials want to defend their policy, they must appeal to the U.S. Supreme Court(John M. Flora, "Court rules school's drug policy is illegal," Indianapolis Star, September 10, 1998; John M. Flora, "Court lets drug testing decision stand," Indianapolis Star, November 3, 1998).

The decision involves freshman James R. Willis II, who was suspended for five days from Anderson High School on December 10, 1997 for fighting with another student. In accordance with school policy, in which students suspended for three of more days are required to take a drug test before being readmitted to school, Willis was directed to take a drug test on December 19. Students who test positive have their parents notified and are referred to counseling. Willis repeatedly refused the drug test and was eventually expelled from the high school for the remainder of the 1997-1998 school year.

Willis, represented by Indiana Civil Liberties Union (ICLU) attorney Ken Falk, appealed the expulsion. After Falk argued unsuccessfully in January before a U.S. District Court in Indianapolis, he appealed to the 7th Circuit. The federal appeals court ruled that in the absence of suspicion of drug use school officials are not allowed to drug test a student. The court ruled, "We. . .cannot find that the [school] Corporation's data is strong enough to conclusively establish reasonable suspicion of substance abuse when a student is suspended for fighting. . ."

Indiana Civil Liberties Union, Attorney Ken Falk - 1031 E. Washington St., Indianapolis, IN 46202, Tel: (317) 635-4059, ext. 229, Fax: (317) 635-4105, E-mail: <indclu@aol.com>, Web: <http://www.iclu.org>.

Rush County School District - 330 W. 8th St., Rushville, IN 46173, Tel: (765) 932-4186.•