Amicus Curiae Brief — Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls

52 nM

No. 01-332 FEB 6

a en a

CYTRK

IN THE

Supreme Court of the United States

BOARD OF EDUCATION OF INDE?ENDENT SCHOOL

DISTRICT NO. 92 OF POTTAWATOMIE COUNTY AND

INDEPENDENT SCHOOL DISTRICT NO. 92 OF

POTTAWATOMIE COUNTY, PETITIONERS,

V.

LINDSAY EARLS, LACEY EARLS, ET AL., RESPONDENTS.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

Brief of Amici Curiae American Academy of Pediatrics,

National Education Association, American Public Health

Association, National Association of Social Workers,

NASW-Oklahoma Chapter, National Council on

Alcoholism and Drug Dependence, Center for

Law and Education, Loyola Child Law Center,

and Lawyers for Children, Inc.,

In Support of Respondents

DAVID T. GOLDBERG* JUDITH K. APPEL

99 Hudson Street, 8" Fl DANIEL N. ABRAHAMSON

New York, NY 10013 The Lindesmith Center

(212) 334-8813 717 Washington Street

Oakland, CA 94607

(510) 208-7711

Attorneys for Amici Curiae

*Counsel of Record

TABLE OF CONTENTS

SEE Banadusccewesccocscveccececes iii

ED one ceN das ced ctauederensee cs |

Eo de Wedcddaueteceeteedesseees 2

IID nck ccccccceccecvccecescceces 3

I The Educational And Developmental Context

Highlights The Policy’s Constitutional Defects ...... 6

Il. Extracurricular Involvement Is Broadly Beneficial

And Is A “Protective Factor” For Adolescents At

Particular Risk of Substance Abuse ............... 7

A. Young People Derive Important Benefits From

Extracurricular Participation ................. 7

B. Participants Are Far Less Likely To Use

Alcohol, Tobacco Or Other Drugs Than

Are Less Involved Peers ............sese00. 10

C. Extracurricular Involvement Plays An Important,

PEE bike dere udcnseeesesceceuss 11

IL A Policy Like Tecumseh’s Will Operate,

Unjustifiably, To Deny Important Benefits

And Anti-Drug Protections .................056: 13

A. Many Students Find Testing Policies Intensely

— Or Intolerably — Intrusive on Privacy ....... 14

1. The Urine Collection Is Itself A Significant

PE bacsedbapecebesbarecscecenes 15

2.

Students’ Privacy Concerns Extend

Beyond The Collection Process ..........

B. Students Will Be Deterred From Extracurricular

Involvement, With Far-Reaching, Negative

errs sey Eko aa

Purposes Claimed For It ...........0eeeeeeeeees

A. Drug-Testing Regimes Like Tecumseh’s

May Not Lead To More Healthy Behavior .....

B. The Policy Ill Serves The Treatment Needs

Of Students Who Do Have Substance

V. Tecumseh’s Policy Does Not Respect

The Proper Allocation of Responsibility

Among Parents, Doctors And Schools ............

A. Drug-Use Detection Is Not A Necessary Part of

Public Schools’ Core Responsibilities .........

B. Schools’ Pursuit Of Generalized Student Health

Objectives Are —- And Must Be — More Respectful

of Parental And Medical Judgment ...........

C. Tecumseh’s Policy Fails To Respect Parental

Prerogatives And Medical Expertise ..........

TABLE OF AUTHORITIES

Cases

Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986) .. 6, 18, 26

Bond v. United States, 529 U.S. 334 (2000) ........... 16

Chandler v. Miller, 520 U.S. 305 (1997) .......... 3, 14

Dolan v. City of Tigard, 512 U.S. 374 (1994) .......... 15

Earls v. Board of Educ.,115 F. Supp. 2d 1281

(W.D. Okla. 2000), 242 F.3d 1264 (2001)......... passim

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 6

Ferguson v. City of Charleston, |

es ccceseseebegtoecccecscs 14, 17

Ginsberg v. New York, 390 U.S. 629 (1968) ............ 6

Greater New Orleans Broad. Ass'n v.

United States, 527 U.S. 173 (1999) ........ 006 c cc eeee 22

Harkey v. Abate 346 N.W.2d 74 (Mich. App.1983) ..... 16

Indianapolis v. Edmond, 531 U.S. 32 (2000) .......... 15

Ingraham v. Wright, 430 U.S. 651 (1977) .............. 6

Kansas v. Crane, 2002 WL 75609 (2002) ............. 25

Lee v. Weisman, 505 U.S. 577 (1992) ........... 6, 15, 20

National Treas. Employees Union v.

Von Raab, 489 U.S. 656 (1989) .... 2.22. eee ees 3, 17, 19

New Jersey v. T.L.O., 469 U.S. 325 (1984) ........ 5, 6, 26

New York v. Burger, 482 U.S. 691 (1987) ............. 15

Ohio v. Akron Center for Repro. Health,

GOT GB. Fa IS 0 oc ccccctcdcccccevcccesccscecces 6

Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290 (2000) ..... 7

Skinner v. Railway Labor Executives’ Ass'n,

GD GS. GG cc cccccvccccccscccccses 16, 17, 27

Trinidad Sch. Dis. No.1 v. Lopez,

963 P.2d 1095 (Colo. 1998) ... 2.6... cece ee eeeeees 8, 16

Vernonia Sch. Dist. v. Acton,

LF eee passim

West Virginia Bd. of Educ. v. Barnette,

SIP GE GP 0 oe cbc cccicccdecedocccesescuces 6

Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955) .... 22

Legislative And Administrative Materials

Pub. L. 107-110 § 1061(c(2CMAMii), (CY) ........ 28

Pres. Proc. No. 5109, 48 Fed. Reg. 44,749

tn OF GUM. . cise acscatedseniscpomethobes 7,8

Cine. Bee GPG CIE ina i vdicds dodcalscbedsct 28

ES ee RE 18

Op. Okla. Atty. Gen. No. 76-293 (Aug. 5, 1976)........ 28

Other Authorities

U.S. DEP’ T OF Epuc. & U.S. DEP’T OF JUSTICE,

“SAFE AND SMART”: MAKING AFTER-SCHOOL HOURS

WEOEEEDED cccccccccccccsccceccecccese 12

AAP Comm. on School Health, School Health

Assessments, 105 PEDIATRICS No. 4 (Apr. 2000) ....... 27

AAP Comm. on Substance Abuse, Testing for Drugs

of Abuse 98 PEDIATRICS 305 (1996) ............... 1, 28

AAP Comm. on Substance Abuse, Alcohol Use And

Abuse, A Pediatric Concern, 108 PEDIATRICS 185.

SEE Shtddcbdonseoscessdetasadedéeseoseese 22

AAP Comm. on Substance Abuse, Indications for

Management and Referral of Patients Involved

in Substance Abuse, 106 PEDIATRICS 14 (July 2000) .... 21

APHA Policy Statement 8817, A Public Health Response

To the War on Drugs: Alcohol, Tobacco &

Other Drug Problems Among the Nation's Youth ........ 3

J. Baer, et al., Linking Etiology & Treatment,

in NEW PERSPECTTVES ON ADOLESCENT

RISK BEHAVIOR (R. Jessor ed., 1998) ................ 21

D. Baumrind, Familial Antecedents of Adolescent

Drug Use, in ETIOLOGY OF DRUG ABUSE: IMPLICATIONS

FOR PREVENTION (U.S. Dep't. = eeu 20

Centers for Disease Control, Mortality Trends,

Causes of Death And Related Risk

Behaviors Among U.S. Adolescents (1993) ............ 24

H. Chilcoat, & J. Anthony, Jmpact of Parent Monitoring

on Initiation of Drug Use, 35 J. AM. ACAD.

CHILD. & ADOLESC. PSYCH. 91 (1996) ............5.. 30

R. Cook, The Alternatives Approach Revisited:

A Biopsychological Model and Guidelines and

Application, 20 INT’L J. OF THE ADDICTIONS (1985) ..... 13

A. Crocker, et al., Supports for Children with HIV

Infection in School: Best Practices Guidelines, .

Pe ED dnnccncidateesicséccoceses 18

D. Davalos, et al., The Effects of Extracurricular

Activity, Ethnic Identification and Perception

of School on Student Dropout Rates,

21 Hisp. J. BEH. Sci., No. 1(1999) .................. 12

J. Eccles & B. Barber, Student Council,

Volunteering, Basketball, or Marching Band:

What Kind of Extracurricular Involvement Matters?,

14 J. ADOLESCENT RES. (1999) ............... 7, 8,9, 13

D. Elmquist, Alcohol & Other Drug Use Prevention

For Youths At High Risk And Their Parents,

18 Epuc. & TREATMENT OF CHILDREN (1995) ......... 11

M. Ensminger & H. Juon, Transition To Adulthood

Among High-Risk Youth in NEW

PERSPECTIVES ON ADOLESCENT RISK BEHAVIOR

SEs MEEEcStdedndbevrcececuctescocccecct 12

C. Fried, Privacy, 77 YALE L.J. 475 (1968) ........... 16

M. Glancy, et al., Adolescent Activities And Adult

Success and Happiness: Twenty-Four Years Later,

70 Soc. & SOC. RES. 242 (1986) .......... cc cece eee: 9

M. GONET, COUNSELING THE ADOLESCENT

SUBSTANCE ABUSER (1994) ... 0.0... cece ceeeceeeees 25

S. Harter, Causes and Consequences of Low

Self-esteem in Children and Adolescents, in SELF-ESTEEM:

THE PUZZLE OF LOW SELF-REGARD

R. Jessor, New Perspectives on Adolescent Risk

Behavior in NEW PERSPECTIVES ON ADOLESCENT

RISK BEHAVIOR (R. Jessor ed., DT thidéussveseoets 11

D. Kandel, Persistent Themes and New

Perspectives on Adolescent Substance Abuse in

NEW PERSPECTIVES ON ADOLESCENT RISK

BEHAVIOR (R. Jessor, ed. 1998)... . 2.2... eee eee 23

R. Kessler, et al., Social Phobia Sub-Types In

The National Co-Morbidity Study (1997) ............. 16

Vii

S. Lamborm, et al., Putting School in Perspective:

The Influence of Family, Peers, Extracurricular

Participation & Part-Time

Work On Academic

Engagement, in STUDENT ENGAGEMENT AND

ACHIEVEMENT IN AMERICAN SECONDARY SCHOOLS

J. Mahoney & R. Cairns, Do Extracurricular Activities

Protect Against Early School Dropout?

Fe EE ETD co besececedcevccesscecests

NAT’L CTR. FOR EDUCATIONAL STATISTICS,

EXTRACURRICULAR PARTICIPATION & STUDENT

ENGAGEMENT (1995) ....

National Educ. Ass’n, Resolution C-3 (2001) ...........

Nat’! Fed. of State High School Ass’ns, The Case.

For High School Activities

Nat’! Inst. on Out-of-School Time, Fact Sheet

on School-Age Children’s Out-of-School

Time (March 2001) .....

F. Newman, et al., The Significance And

Sources of Student Engagement in STUDENT

ENGAGEMENT AND ACHIEVEMENT IN AMERICAN

SECONDARY SCHOOLS (F. Newman ed., 1992) ..........

L. Otto, Extracurricular Activities in the

Educational Attainment Process,

40 RURAL Soc. 162 (1975)

L. Otto, Extracurricular Activities in the

Status Attainment Process,

41 RURAL Soc. 217 (1976) ............005. pando mabe 9

A. Peterson & B. Taylor, The Biological

Approach to Adolescence: Biological

Change and Psychological Adaption, in

HANDBOOK OF ADOLESCENT PSYCHOLOGY

Gs MEE bce cdcedccescccccccccecccese 17

PREVENTING TOBACCO USE AMONG YOUNG PEOPLE: A REPORT

OF THE SURGEON GENERAL (1994) ..........05055 22, 23

M. Resnick, et al., Protecting Adolescents

From Harm: Findings From the National Longitudinal

Study on Adolescent Health, 278 JAMA 823 (1997) .. 10, 24

J. Schulenberg, et al., Development Matters in

ADOLESCENTS, ALCOHOL & SUBSTANCE ABUSE

(Monti, et al., eds. 2001) ...........00. OTE 7

L. Shilts, The Relationship of Early Adolescent

Substance Use to Extracurricular Activities, Peer

Influence, and Personal Attitudes, 26 ADOLESCENCE 613

PS cok scecapel edad bsedbesedese.cueges sees 10

S. SOIEFER, ET. AL., SHY BLADDER SYNDROME (2001)... 16

L. Steinberg & S. Avenevoli, Disengagement

From School, in NEW PERSPECTIVES ON ADOLESCENT

RISK BEHAVIOR (R. Jessor, ed., 1998) .......... 12, 13, 20

D. Wasson & M. Anderson, Chemical

Dependency and Adolescent Self-Esteem,

1995 CLINICAL NURSING RES. 274 ..... 2... cece eeeees 21

R. WILSON & C. KOLANDER, DRUG ABUSE

PREVENTION (1992) ..... 2c cee eeeeeceeeeeenees ‘coe ae

P. Winne & J. Walsh, Self-Concept And

Participation In School Activities Reanalyzed,

TS SE BE, GEG o.'b. 0664 00 cbbccccésvecce 7

N. Zill et al., Adolescent Time Use, Risky

Behaviors and Outcomes (U.S. Pub. Health Serv. 1995)10, 11

Interest of Amici Curiae®

Amici are physicians, educators, social workers, substance

abuse treatment providers, and child advocates. No less than

the Petitioners in this case, we are profoundly concerned about

the harm that substance abuse can wreak in the lives of young

people. See, e.g., Am. Acad. of Pediatrics (“AAP”) Comm. on

Substance Abuse, Testing For Drugs of Abuse in Children And

Adolescents, 98 PEDIATRICS 305 (1996) (AAP recognizes “the

abuse of psychoactive drugs as one of the greatest problems

facing children and adolescents and condemns all such use”).

Amici have witnessed firsthand the tragic consequences of

youth substance abuse, and many of us devote our professional

lives to understanding addiction, preventing substance abuse,

and working to help troubled young people.

While Amici are sympathetic to the impulse to “do more”

against illicit drugs that attracts parents and school boards to

measures like the one at issue here — and we recognize that this

Court has held that public school officials are not disabled from

using school-based drug-testing in response to an “immediate

crisis” situation, Vernonia Sch. Dist. v. Acton, 515 U.S. 646,

663 (1995) — we are concerned that such practices not become

(as they surely will, if this one receives the Court’s blessing) a

first resort.

For reasons we explain herein, our experience — and a

broad body of relevant research — convinces us that a policy like

Tecumseh’s cannot work in the way it is hoped to and will, for

many adolescents, interfere with more sound prevention and

treatment processes. Under such circumstances, the undeniably

weighty interests in promoting and protecting adolescent health

counsel] judicial invalidation, not approval.

“The parties have consented to the filing of this brief. It was not

authored in any part by counsel for a party, and no one other than Amici and

their counsel made a monetary contribution for its preparation or submission.

2

Preliminary Statement

At issue in this case is a policy that denies the benefits of

participation in a broad range of non-athletic extracurricular

activities to students who refuse to submit to school-

administered suspicionless urine-testing and to individuals

whose urine tests positive for certain drugs of abuse. J.A. 193-

205. The record makes clear that the targeting of

extracurricularly involved students was not the result of a

School Board determination that (a) those students were

particularly likely to use the substances tested for, see, e.g.,J.A.

101, 119, 127; (b) that the population covered was in greater

need of deterrence than were other students; or (c) that the

school’s already-existing anti-drug policies, see, e.g., Pet. Br. at

7, were not succeeding in preventing abuse — the District

repeatedly represented that the tested-for substances were “not

* * * a major problem.” See J.A. 180. Nor did the safety

considerations so energetically stressed in litigation, see, e.g.,

Pet. Br. at 43, figure in the Policy’s adoption. J.A. 155.

Rather, as the record and decisions below document, the

Policy’s genesis was in demands that the School Board do more

about perceived student drug use, J.A. 85-8, and the decision to

from (1) desire to be “fair” to the initially targeted population

— student-athletes — by providing that others would be tested, as

weil, J.A. 89, and (2) advice of counsel that the District would

have a freer hand testing a subgroup whose submission was tied

to involvement in “voluntary” school activities. J.A. 155.

These facts make the case extraordinary in Fourth

Amendment jurisprudence. Although individualized suspicion

is not an irreducible constitutional requirement, the Court’s

cases treat some quantum of suspicion as presumptively

necessary — subject to a showing that a suspicion-based

3

approach will not work, see Chandler v. Miller, 520 U.S. 305,

318-19 (1997) — and never have permitted a policy targeting

large numbers of individuals for intrusive searches for no better

reason than that doing so might make searches of other

individuals seem less unfair. See National Treas. Employees

Union v. Von Raab, 489 U.S. 656, 681 (1989) (Scalia, J.,

dissenting) (“the impairment of individual liberties cannot be

the means of making a point”).

As such, this Policy should not withstand even a cursory

Fourth Amendment examination, let alone the “careful[]” one

the governing case law prescribes. Chandler, 520 U.S. at 314.

In fact, as we show below, the necessary “context-specific”

scrutiny, id., discloses defects in this Policy that are more

serious than found with measures rejected as merely “symbolic”

by this and other courts. Unlike cases involving minor, but

intrusions on privacy — which Chandi blished

as constitutionally “unreasonable,” 520 U.S. at 318 — the Policy

at issue here operates, in key respects, at cross purposes with

the important objectives cited in its defense.

Summary of Argument

Amici do not part company with Petitioners in their

appraisal of the health dangers that illicit drugs pose to young

people or of the importance of preventing and treating youth

addiction.’ But precisely because what is at stake is so

important, we believe that adult decision makers — parents,

doctors, school boards, and courts — have a special obligation to

licies that realisticall ise to help

‘Several of Amici have adopted formal resolutions addressing youth

substance abuse. See, ¢.g., APHA Policy Statement 8817, A Public Health

Response To the War on Drugs: Alcohol, Tobacco & Other Drug Problems

Among the Nation's Youth; NEA Resolution C-3 (2001).

4

— and to resist measures, however well-intentioned, that are

inconsistent with that objective.

Amici are concerned that the Policy at issue in this case fits

the latter description. Experience teaches that whether a

particular prevention approach will work depends critically on

the perceptions and responses of its adolescent subjects, and

involuntary, school-based urine-testing regimes of the sort at

issue — because they are experienced as intensely intrusive and

distrustful — are especially unlikely to work as intended.

The distinctive feature of the Policy at issue here — linking

drug screening to participation in student extracurricular

activities — does not allay these concerns. That qualification

does little to limit the Policy’s reach: such activities are a

central part of the school experience, and students in Tecumseh

and elsewhere participate at high rates. Nor is it one that makes

intuitive sense: there is, on the contrary, a demonstrated, strong

association between student extracurricular involvement and

abstinence from drugs.

More important, there is growing recognition that

extracurricular involvement plays a role in protecting students

from substance abuse and other dangerous health behaviors. A

policy that conditions participation on submission ‘to an in-

school urine testing regime not only risks denying those

benefits to students who, out of principle or modesty, refuse to

submit, but it is disproportionately likely to discourage

“marginal,” higher risk students — whose attachment to school

is weakest, but who are in greatest need of protection.

Nor may it simply be assumed that the threat of detection

through urinalysis will translate into decreases in unhealthy

behavior even among those who do opt to participate in the

covered activities. Policies like Tecumseh’s leave open a third

option: to continue extracurricular involvement, but to shift

5

from unhealthy behavior that the test might detect to abuse of

substances it is unlikely to. Whether such shifting occurs as a

result of sincere misunderstanding — e.g., mistaken belief that

substances not tested for, such as alcohol and tobacco, are less

unhealthy than “illicit” drugs — or of more conscious defiance

of the District’s decision to “catch” its students, it seriously

compromises any preventative effect.

Tecumseh’s Policy should not be sustained as “treatment”

either. Whether Petitioners are right to label it “non-punitive,”

the “consequences” the Policy does impose — exclusion from

extracurricular activities and disclosure of the student’s

problem to those in the school environment deemed “need[ing]

to know” — are still likely to toughen the already daunting

challenge of recovery from substance abuse. Indeed, by placing

the student’s activity supervisor at the front lines of Policy

enforcement, the District may close down what might otherwise

be an important avenue of support for a young person seeking

to turn away from drug involvement.

This points toward a final, far-reaching defect of the Policy.

It injects the school and its personnel, unnecessarily, into a

realm where parental and medical judgment should be

preeminent. Unlike the policies upheld in cases claimed as

precedent, see Vernonia; New Jersey v. T.L.O., 469 U.S. 325

(1984), this Policy is anchored less in the school’s core

responsibilities for student safety and the integrity of the

instructional process, than in a more generalized sense of

concern for students’ health problems.

_ Such concer, to be certain, is legitimate. Schools can and

do play a pivotal role in promoting young people’s health. But

when school boards seek to advance these more general

interests, they must seek to do so in ways that support, rather

than undermine, the judgments of students’ parents and doctors.

6

Tecumseh’s Policy has, for no sufficient reason, disturbed

this allocation of responsibility. The Policy operates in

disregard for prevention and treatment principles that doctors

and substance abuse experts view as fundamental, and it denies

those parents who want to take primary responsibility for

discouraging, punishing, and treating substance abuse — and not

delegate that job to the School Board — the freedom to do so.

I. The Educational And Developmental Context

Highlights The Policy’s Constitutional Defects

This case concerns a Policy linking in-school urine testing

to extracurricular involvement — an approach defended as

needed to prevent adolescent substance abuse. As such, it fairly

implicates precedents recognizing that high school students —

and adolescents generally — are different from mature adults in

ways that can be of constitutional dimension, see, e.g., Bethel

Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986); Ginsberg v. New

York, 390 U.S. 629, 638 (1968); Ohio v. Akron Center for

Repro. Health, 497 U.S. 502, 520 (1990).

But Petitioners mistake the import of that principle and its

significance for this case. While such differences have figured

in cases rejecting constitutional rules that might impair public

schools’ discharge of day-to-day instructional responsibilities,

see Fraser, T.L.O.; Ingraham v. Wright, 430 U.S. 651, 662

(1977), the Court has never embraced the general “relaxation”

of scrutiny that Petitioners seek, Br. at 17. On the contrary, its

cases acknowledge that school board majorities, no less than

other governmental bodies, can threaten constitutional rights,

see West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 637

(1943), and that meaningful protection of those rights also

requires taking account of the distinct capacities, experiences,

and perceptions of adolescents, see, e.g., Edwards v. Aguillard,

482 U.S. 578, 584 (1987); Lee v. Weisman, 505 U.S. 577,

592-93 (1992).

A sensitive appreciation of the educational and

developmental context, we believe, strongly reenforces the

correctness of the Appeals Court’s constitutional judgment

here. The private interests against Tecumseh’s Policy become

weightier and its claimed benefits, more unlikely, when

considered in light of the known realities of how adolescents

benefit from school activities, how they are drawn toward (and

protected from) substance abuse, how they perceive and

respond to school policies — and how can adolescents differ

from one another in these respects. Cf. J. Schulenberg, et al.,

Development Matters in ADOLESCENTS, ALCOHOL &

SUBSTANCE ABUSE 44 (Monti, ef al., eds., 2001) (“alcohol and

other drug use among young people is embedded within the

many developmental transitions that take place during

adolescence and the transition to young adulthood”’).

Il. Extracurricular Involvement Is Broadly Beneficial

And Is A “Protective Factor” For Adolescents At

Particular Risk of Substance Abuse

A. Young People Derive Important Benefits From

Extracurricular Participation

It would be unwise to “minimiz[e] the importance to many

students of * * * participating in extracurricular activities,”

Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 311 (2000), or

“the significant place extracurricular opportunities have in the

growth of [the Nation’s] high school students.” Pres. Proc. No.

5109, 48 Fed. Reg. 44,749 (Sep. 27, 1983).

In surveys, students regularly single out extracurricular

activities as a particular source of satisfaction. See J. Eccles &

B. Barber, Student Council, Volunteering, Basketball, or

Marching Band: What Kind of Extracurricular Involvement

Matters?, 14 J. ADOLESCENT RES. No. | at 10, 19 (1999); P.

Winne & J. Walsh, Self-Concept And Participation In School

Activities Reanalyzed, 72 J. EDUC. PSYCH. 16 (1980). Indeed,

“[s)}tudents participating in a number of activities * * * express

greater satisfaction with the total high school experience than

students who do not participate,” Nat’] Fed. of State High

School Ass’ ns, The Case For High School Activities at 5 (“Case

For Activities”) (emphasis added).

Moreover, “many students * * * wish to pursue

post-secondary educational training and/or professional

vocations requiring experience [that can be) garnered only by

participating in extracurricular activities,” Trinidad Sch. Dist.

No. 1 v. Lopez, 963 P.2d 1095, 1109 (Colo. 1998) (emphasis

added). And students — and parents — are acutely aware of

another tangible benefit: a strong record of extracurricular

involvement is all but essential to securing admission to a

competitive undergraduate college.

But the beneficial effects of ‘cul ——

ee ee eee oe ee jately apparent. As

President R highlighted a :

gain key insights into the roles which competition and

cooperation play in our society. Moreover, these

experiences help students to learn to set and achieve goals,

to organize their time effectively, and to enhance the social

skills that are needed to enjoy and succeed in life.

48 Fed. Reg. at 44,749.

in extracurricular activities are more likely to stay in school,

earn higher grades, and to set — and achieve — more ambitious

educational goals. See Eccles & Barber, supra, at 25 (finding

“clear evidence” that participation in extracurricular activities

9

produces higher than expected GPAs); J. Mahoney & R. Cairns,

Do Extracurricular Activities Protect Against Early School

Dropout? 33 DEV. PSYCH. 241 (1997) (yes); F. Newman, et al.,

The Significance And Sources of Student Engagement in

STUDENT ENGAGEMENT AND ACHIEVEMENT IN AMERICAN

SECONDARY SCHOOLS (F. Newman ed., 1992); NAT’LCTR. FOR

Epuc. STATS., EXTRACURRICULAR PARTICIPATION & STUDENT

ENGAGEMENT (1995).

Finally, these benefits have been found to be enduring. A

study conducted by the American College Testing Service

concluded that the factor that best predicted success and later

life satisfaction (more than school grades or scores on

standardized tests like the ACT) was participation in high

school activities. Case For Activities at 5; see also M. Glancy,

et al., Adolescent Activities And Adult Success and Happiness:

Twenty-Four Years Later, 70 Soc. & SOc. RES. 242 (1986).’

The many positive outcomes associated with

extracurricular participation resonate with broader

understandings of the defining challenges and tasks of

are freely chosen, they can play a benign role in the normative

adolescent process of “trying out” identities. See Eccles &

Barber, supra at 30. And activities enable young people to take

on greater individual responsibility, to strengthen bonds with

like-minded peers, id. at 29, forge relationships with caring

adults, and strengthen self-esteem.

"accord L. Oto, Extracurricular Activities in the Educational

Attainment Process, 40 RURAL SOC. 162 (1975); L. Otto, Extracurricular

Activities in the Status Attainment Process, 41 RURAL SOC. 217 (1976); S.

Lamborn, et al., Putting School in Perspective: The Influence of Family,

Peers, Extracurricular Participation & Part-Time Work On Academic

Engagement, in STUDENT ENGAGEMENT, supra.

10

Values and habits inculcated in extracurricular involvement

are, broadly speaking, “prosocial” — and readily applied in other

spheres. Thus, those who involve themselves in high school

activities come to define success in ways that are

“conventional” — i.e., fundamentally consistent with how their

schools, parents, and broader adult society do.

B. Participants Are Far Less Likely To Use

Alcohol, Tobacco Or Other Drugs Than Are

Less Involved Peers

A fair reading of the record in this case indicates that

substance abuse by the students subject to the Policy is

exceedingly rare, see 242 F.3d at 1273 — and almost certainly

less common than among students who are not tested. J.A. 119.

Research establishes that Tecumseh is, in this respect,

representative. Nationwide, students who participate in

extracurricular activities are significantly less likely to develop

substance abuse problems than are their less-involved peers.

See N. Zill, et al., Adolescent Time Use, Risky Behaviors and

Outcomes (U.S. Pub. Health Serv. 1995) (“students who

reported spending no time in school-sponsored activities were

49 percent more likely to have used drugs”); L. Shilts, The

Relationship of Early Adolescent Substance Use to

Extracurricular Activities, Peer Influence, and Personal

Attitudes, 26 ADOLESCENCE 613, 615 (Fall 1991) (finding that

among adolescents studied, “the non[drug]using group reported

significantly higher involvement in extracurricular activities as

compared to the using and abusing groups”).’

accord M. Resnick, et al., Protecting Adolescents From Harm:

Findings From the National Longitudinal Study on Adolescent Health, 278

JAMA 823, 828-30 (1997) (finding that higher levels of connectedness to

school were associated with less frequent alcohol and marijuana use).

11

C. Extracurricular Involvement Plays An Important,

Protective Role

Amici do not doubt that these dramatic differences can be

attributed — in part — to processes of self-selection. It is

increasingly understood that the risks of substance abuse are not

uniformly distributed across the adolescent population, R.

Jessor, New Perspectives on Adolescent Risk Behavior in NEW

PERSPECTIVES ON ADOLESCENT RISK BEHAVIOR 3-5 (R. Jessor,

ed., 1998) (summarizing research identifying biological,

psychological, family and social factors that contribute to risk

of drug involvement), and it is entirely plausible that young

people who are already well protected from substance abuse are

the same ones who are more likely to join in school-based

activities. But, we would note, recognizing these differences

hardly buttresses Petitioners’ Policy: to acknowledge that

extracurricular participants are less likely to become involved

in substance abuse would not seem an argument in favor of a

policy that tests only students who fall in that category.‘

But it is also clear that self-selection is not a complete

explanation. Many individuals with multiple “risk factors” do

These findings extend to other problem behaviors. Zill et al. found

students uninvolved in school-sponsored activities were also 57 percent

more likely to drop out, 37 percent more likely to have become teen parents,

35 percent more likely to have smoked cigarettes, and 27 percent more likely

to have been arrested. Notably, a number of researchers have found one

class of school activities to be positively correlated with one unhealthy

behavior: high school athletes use alcohol more - and more heavily — than

do peers. See, e.g., Zill, et al

“Of D. Elmquist, Alcohol And Other Drug Use Prevention For Youths

At High Risk And Their Parents, 18 EDUC. & TREATMENT OF CHILDREN, No.

1 (1995) (prevention efforts that focus “on generic youths and their parents

* * * divert{] badly needed resources from a small but at-risk target group to

a larger but relatively healthy general population”).

12

not become involved with alcohol or drugs, and there is

mounting empirical support for the conclusion that

extracurricular participation plays an independent, “protective”

role — especially for students who are at higher risk. See, e.g.,

L. Steinberg & S. Avenevoli, Disengagement From School, in

NEW PERSPECTIVES, supra at 420; M. Ensminger & H. Juon,

Transition To Adulthood Among High-Risk Youth in id. at 387.°

The most obvious way that extracurricular activities protect

vulnerable adolescents is simply by extending the time spent

under adult supervision. See C.A. App. 519 (Board President’s

testimony that “if [students] are kept busy with activities from

school they don’t have as much time on their hands to go and

mingle and drive up and down the street”). But while the

nature of this effects need no elaborate explanation, its full

significance is probably less well appreciated.

As a 1992 Carnegie Corporation study entitled A MATTER

OF TIME: RISK AND OPPORTUNITY IN THE NONSCHOOL HOURS

documented, fully 40% of adolescent waking hours are

“discretionary,” i.e., not committed to school, homework,

employment, or chores, and subsequent research has

highlighted the vastly disproportionate incidence of adolescent

drug use and other dangerous behavior during the unsupervised

hours between the end of classes and parents’ return home in

the evening. See U.S. Dep’T oF Epuc. & U.S. DEP’™ OF

JUSTICE, “SAFE AND SMART”: MAKING AFTER-SCHOOL HOURS

WORK FOR Kips (1998) (collecting research on disparate rates

of drug use, cigarette smoking, violence, and vandalism

*See also D. Davalos, et al., The Effects of Extracurricular Activity,

Ethnic Identification and Perception of School on Student Dropout Rates,

21 Hisp. J. BEH. Sci, No. 1 at 61 (1999) (Mexican-American students

involved in nonathletic extracurricular activities are 2.3 times more likely to

stay in school than those not involved).

13

occurring during this time period). Providing structured,

positive activities that — like Tecumseh’s band, choir, and

academic team — meet during those hours appreciably lowers

risk. See Nat’! Inst. on Out-of-School Time, Fact Sheet on

School-Age Children’s Out-of-School Time (March 2001).

But the mere fact of timely adult supervision is not the only

way that extracurricular involvement is protective. As noted

above, by joining an extracurricular activity, students affiliate

with peers who themselves tend to be more secure and

motivated, and come to know faculty members in a less formal

setting than the typical classroom. These positive social

supports and networks play a critical role in periods of

heightened stress. Eccles & Barber, supra at 29 (“over time,

the coalescence of one’s personal identity, one’s peer group,

and the kinds of activities one participates in * * * can shape

the nature of one’s pathway through adolescence”).

Achievement of extracurricular success can be an important

source of confidence and positive self-concept, see R: Cook,

The Alternatives Approach Revisited: A Biopsychological

Model and Guidelines and Application, 20 INT’L J. OF THE

ADDICTIONS, No. 9 at 1399 (1985), and participation helps to

internalize values, attitudes, and habits that make antisocial

behaviors less attractive. See Steinberg & Avenevoli, supra, at

420.

Il. A Policy Like Tecumseh’s Will Operate, Unjustifiably,

To Deny Important Benefits And Anti-Drug [rotections

The premises of Petitioners’ defense of the Policy are

straightforward: (1) that students — precisely because they value

extracurricular activities so highly — will choose the

participation-with-drug-testing option (rather than the

alternative, “dropping out” of the choir or academic team); (2)

that the threat of detection will steer participants away from

14

unhealthy behaviors; and (3) that the students whose use is

detected will benefit from the interventions provided for.

Careful examination, however, casts doubt on each of these

A. Many Students Find Testing Policies Intensely -

Or Intolerably — Intrusive on Privacy

As already discussed, for the overwhelming majority —

perhaps all — the individuals to whom Tecumseh’s a

applies, any constitutional “balancing” would be literally

sided. There is no evidence that the students targeted were in

need of the interventions that ensue from testing positive under

the Policy or of any deterrent beyond those already in place.

But to the extent that there is any public interest on the

District’s side of the “balance,” it is critical that the full

magnitude of the countervailing, student interests be accurately

appraised. See Vernonia, 515 U.S. at 661 (asserted government

interest must be “important enough to justify the particular

search at hand”).

Careful appraisal is especially necessary here, because the

Policy’s privacy intrusion operates in two distinct ways. Not

only does it represent the price exacted from every student who

decides to proceed with participation in the covered activities,

but it also raises the prospect that some students will, based on

that cost, opt not to — thereby missing both the benefits of

extracurricular participation and whatever advantages

Petitioners claim for their drug-testing regime.°

1. The Urine Collection Is Itself A Significant Intrusion

* Although these latter effects, strictly speaking, may belong (as debits)

on the “public interest” side of the constitutional ledger, their Fourth

Amendment significance is beyond question. Chandler, Ferguson v. City of

Charleston, 121 S. Ct. 1281, 1289 n.14 (2001).

15

Although the protocols for urine collection in this case are

not fundamentally different from those used in Vernonia, many

adolescents, we believe, would take issue with the conclusion

that the impact of a regime like Tecumseh’s on their privacy

interests is “not significant.” 242 F.3d at 1276.

First, unlike the student athletes in Vernonia, the students

affected by these policies — debaters, future farmers and choir

members — ~ have no less an expectation of bodily privacy than

do fellow students who do not participate in competitive

extracurricular activities. No physical examinations are

required in connection with participation in these activities, J.A.

196, nor does participation entail the sort of surrender of

privacy associated with the athletic locker room.’

For young people who are not inured, as many student-

athletes are, to routine “communal undress” (in the presence of

coaches, as well as peers), 515 U.S. at 657, procedures of the

sort Tecumseh uses can be intensely uncomfortable. As this

”The analogy to administrative inspections of regulated businesses, see

New York v. Burger, 482 U.S. 691 (1987), which held reasonably well in

Vernonia, makes no sense here. A defining feature of those searches is that

they are necessary to serve the specific purpose that led to regulation in the

first place, see 482 U.S. at 704 — just as many of the rules governing school

even if Future Farmers or Future Homemakers could be described as

“closely regulated”— in the sense that participants are subject to more rules

than other students — nothing in the relevant “regulatory” regimes would

diminish a participant's expectation of bodily privacy.

This Court’s unconstitutional conditions cases teach a similar lesson:

“the government may not require a person to give up a [property] right [in

exchange for a) discretionary benefit conferred by the government where the

benefit sought has little or no relationship to the property.” Dolan v. City of

Tigard, 512 U.S. 374, 385 (1994); see also Indianapolis v. Edmond, 531

U.S. 32, 42-43 (2000); Weisman, 505 U.S. at 595.

16

Court has recognized, the act of urination is one that society

treats as quintessentially private: urination in public is the

subject of almost universal social disapproval and legal

prohibition; urine is treated as waste, to be promptly disposed

of; and even among mature adults, the subject is referred to,

euphemistically, if at all. Skinner v. Railway Labor Execs.

Ass'n, 489 U.S. 602, 617 (1989).*

Moreover, although it is undeniable that “the normal

sounds of urination,” J.A.199, may be overheard by others in a

public restroom, it is neither common nor acceptable for other

rest room users to stand outside the stall listening intently, as do

monitors here, for those sounds. See, e.g., Harkey v. Abate 346

N.W.2d 74, 76 (Mich. App.1983); see also Bond v. United

States, 529 U.S. 334 (2000) (finding intrusion on legitimate

privacy expectation when government agent’s physical

manipulation of defendant’s luggage “far exceeded the casual

contact * * * expected from other passengers”). Indeed, for a

substantial number of American adults, even use of a public

restroom in the presence of others who are there entirely for

their own reasons is a difficult and acutely stressful experience.

R. Kessler, et al., Social Phobia Sub-Types In The National Co-

Morbidity Study (Harvard Medical School 1997) (estimates of

incidence of aversion pareusis); see also Lopez, 963 P.2d at

1100 (noting instance of student who “tried five, six, seven

times, * * * but could not urinate into the container because he

was embarrassed to do so”).

While medical offices are an exception to the practice of

®See also C. Fried, Privacy, 77 YALE LJ. 475, 487 (1968) (“in our

culture the excretory functions are shielded by more or less absolute privacy,

so much so that situations in which this privacy is violated are experienced

as extremely distressing, as detracting from one’s dignity and self esteem”).

*See generally S. SOIEFER, ET. AL, SHY BLADDER SYNDROME (2001).

17

promptly disposing of urine once excreted, medical specimen

collection occurs against a background — absent here — of

developed patient privacy expectations and professional norms.

See Ferguson, 121 S. Ct. at 1289. Morever, even in doctors’

offices, steps are taken to avoid patient embarrassment. See

generally S. SORRENTINO, MOSBY’S TEXTBOOK FOR NURSING

ASSISTANTS (4* ed. 1996). There is no face-to-face discussion

concerning the temperature or clarity of the sample.

The sense of anxiety and shame that many mature adults

feel are experienced far more keenly by students subject to

procedures like Tecumseh’s. Many adolescents are particularly

bodily functions. A. Peterson & B. Taylor, The Biological

Approach to Adolescence: Biological Change and

Psychological Adaption, in HANDBOOK OF ADOLESCENT

PSYCHOLOGY 117, 144 (J. Adelson ed., 1980); S. Harter,

Causes and Consequences of Low Self-esteem in Children and

Adolescents in SELF-ESTEEM: THE PUZZLE OF Low SELF-

REGARD 87 (R. Baumeister ed., 1993) (research finding body

image is strongest unique predictor of overall feelings of

adolescent self-worth).

And the individual whom the Policy charges with

conducting the test — including confronting the student with the

warmth and clarity of her sample — is not an anonymous

medical professional: it is a teacher or coach — a familiar adult

who may well play a powerful authority role in the student’s

daily school experience. Compare 115 F. Supp. 2d at 1291

n.39 with Von Raab, 489 U.S. at 661 (independent contractor

collected urine) and Skinner, 489 U.S. at 609, 626-27 (urine

collected at “independent medical facility,” by personnel

“unrelated to the railroad employer”).

Feelings of unease can be intensified, finally, by the public

18

way in which testing is conducted. In Earls’s case the

announcement that particular students were to be tested was

made to a large assembled group and met with “gigg][ing] and

snicker[ing].” 115 F. Supp. 2d at 1291 n.38; of. Fraser, 478

U.S. at 678 (noting that some students “hooted and yelled” at

lewd speech, while others “appeared to be bewildered and

embarrassed”). This, too, is without analogue in the medical

2. Students’ Privacy Concerns Extend Beyond The

Collection Process

Another aspect of the Policy is likely deepen students’

apprehension. As part of their “consent” to testing, the Policy

recently used. J.A. 205. The sort of information such a list

might disclose — relating to subjects such as treatment for

depression, hyperactivity, HIV, and sexually transmitted disease

— is precisely the kind that carries strong stigma in the school

environment and about which young people affected often feel

shame. See, e.g., A. Crocker, et al., Supports for Children with

HIV Infection in School: Best Practices Guidelines, J. SCH.

HEALTH 64, 32-34 (1994)."° ;

Although the Policy provides that this information will be

treated as confidential, the possibility that anyone in the school

environment might come to learn such information is an

unsettling one. See Crocker, et al. (recommending that “few, if

any, school personnel should receive information about a

The Policy also requires that a student’s parents “confirm” the

medications she lists when giving the sample. J.A. 199. But in Oklahoma

and many other States, minors are entitled to obtain treatment for sexually

transmitted diseases and other serious, but potentially embarrassing, medical

conditions without parental notification or consent. OKLA. STAT. 63 § 1-

$32.1.

19

student's HIV status” and stressing that decision to inform

school concerning student's HIV status should rest with student

and parents); compare Von Raab, 489 U.S. at 672 n.2 (“an

employee need not disclose personal medical information to the

Government unless his test result is positive, and even then any

such information is reported to a licensed physician”).

Moreover, even a pledge of confidentiality cannot

eliminate the risk (and fear) that the information will be

disclosed inadvertently, see J.A. 129-32 (evidence that choir

teacher looked at students’ prescription drug lists and left them

where other students could see them) -- or that, in a community

of Tecumseh’s size, intimate information about the young

person’s medical or mental health will make its way “all over

town.” Cf. J.A. 85-88 (School Board President’s description of

her conversations at local supermarket).

B. Students Will Be Deterred From Extracurricular

Involvement, With Far-Reaching, Negative

Consequences

Some students, to be sure, will experience even these

intrusions and privacy risks as untroubling — and others will

make the judgment that valued extracurricular activities are

worth what they perceive to be a high price. But, both the

evidence in this case, see 115 F. Supp. 2d at 1291 n.38, and a

broader body of research concerning adolescent attitudes

strongly suggest that, under policies such as Tecumseh’s, a

significant number of students will respond by choosing not to

participate."

"In its Brief, Tecumseh dismisses students uncomfortable with these

intrusions as ““bashful,”” id. at 34 (quoting Vernonia, 515 U.S. at 657), and

asserts, as if the proposition were self-evident, that activities such as Future

Homemakers and academic team are “not for [them].”

20

To the extent that these students are as plaintiff Earls seems

to be — young people with “nothing to hide,” by way of

substance use, but whose principles or personal sense of

modesty nonetheless make the testing regime intolerable — the

losses are obvious enough.” Such students, who need no

further deterrence, let alone treatment — are denied the benefits

catalogued above. They are cut off from school friends who

share their interests; they may find themselves the subject of

suspicion or rumor concerning what the screens would have

revealed; and their candidacies for admissions to competitive

college will almost certainly be prejudiced. Cf. Weisman, 505

U.S. at 595 (“absence [from graduation] would require

forfeiture of those intangible benefits which have motivated the

student through youth and all her high school years”).

Perhaps worse still, there is good reason for concern | that

the students most likely to exercise the option not to participate

will be those at the “margins” — whose interest in

extracurricular activities may be tentative and undeveloped, and

who are more likely to have (or feel they have) something to

conceal from their peers and teachers. For example, among the

substance abuse are young people suffering from depression,

see, e.g., E. Deykin, et al., Adolescent Depression, Alcohol and

Drug Abuse. 76 AM.J. PUB. HEALTH 178 (1987), and those with

substance abuse problems in their family background, see, ¢.g.,

D. Baumrind, Familial Antecedents of Adolescent Drug Use, in

(U.S. Dep’t. H.H.S. 1985). But as we have explained, it is

precisely these students for whom the benefits — and protections

— of extracurricular programs are most valuable. See Steinberg

'2 at her deposition, Earls testified that she did not know what the

substances tested for even look like. J.A. 108.

21

& Avenevoli, supra, at 420 (finding that “youngsters who

reported a relatively fragile orientation toward school * * * are

* * * significantly more likely to use drugs and alcohol”).

In this regard, one specific subpopulation should be of

particular concern: young people who have already had

problems with substance abuse and are in recovery. It is a

telling reminder of how unusually minor Tecumseh’s

experience with drug abuse is that the Policy’s effect on such

students apparently was not considered.

For such students, for whom low self-esteem and weak

connection to school are often critical problems, see D. Wasson

& M. Anderson, Chemical Dependency and Adolescent Self-

Esteem, 1995 CLINICAL NURSING RES. 274, the potential

benefits of extracurricular involvement are substantial. Cf. J.

Nation & J. Benshoff, Therapeutic Recreation Programs for

Adolescents in Substance Abuse Treatment Facilities 62 J.

REHAB. 10 (Oct. 1996). But young people recovering from

substance abuse will be most unlikely to run a gauntlet like the

one erected here. Not only are they less likely to have friends

already involved in activities, but adolescents who have been

through treatment are very conscious of the likelihood of

relapse, see J. Baer, et al., Linking Etiology & Treatment, in

NEW PERSPECTIVES, supra, at 201 (summarizing studies

finding high rates of relapse among adolescents), and to the

extent that they have successfully kept past troubles with

alcohol or drugs from peers and teachers, the prospect of airing

their problems in the school setting is likely to be an especially

daunting one."

''See AAP Comm. on Substance Abuse, Indications for Management

and Referral of Patients Involved in Substance Abuse, 106 PEDIATRICS 143,

146 (July 2000) (“Relapse is an expected part of recovery”).

22

IV. The Policy Is Il-Suited To The Public Health Purposes

Claimed For It

A. Drug-Testing Regimes Like Tecumseh’s May

Not Lead To More Healthy Behavior

' In this Court, the District and its Amici have striven to

defend Tecumseh’ s policy as preventative in effect. Whether or

not the District has real substance abuse problems — and even

if the Policy actually was adopted for reasons that are symbolic,

rather than special — it is argued, such policies are needed to

prevent the onset of an “epidemic” of unhealthy behavior of the

sort described in Vernonia, see 515 U.S. at 663. No record

evidence is identified to support these claimed preventative

benefits, and there are important reasons why Petitioners’

confidence in them is likely misplaced.

First, although lawyers, we recognize, often reflexively

discount problems of under-inclusion, see Williamson v. Lee

Optical, Inc., 348 U.S. 483, 489 (1955), it is troubling, from a

public health perspective, that Tecumseh’s Policy omits — for

practical reasons — any screen for the two substances that it has

attested are its students’ most serious problems: alcohol and

tobacco. See, e.g., J.A. 176 (1996-97 report that “the use of

tobacco and alcohol continue to be our number one problems”);

cf. Greater New Orleans Broad. Ass'n v. United States, 527

U.S. 173, 190 (1999) (concluding that regulatory regime

“pierced by exemptions and inconsistencies” does not

“materially advance” government's interest).

The harms associated with adolescent alcohol and tobacco

use have been at least as extensively documented as for those

drugs for which Tecumseh does screen. See PREVENTING

TOBACCO USE AMONG YOUNG PEOPLE: A REPORT OF THE

SURGEON GENERAL (1994); AAP Comm. on Substance Abuse,

Alcohol Use And Abuse, A Pediatric Concern, 108 PEDIATRICS

23

185 (July 2001). Indeed, the evidence shows not only that

nicotine is highly addictive - meaning that youthful

experimentation typically leads to life-long unhealthy behavior

— but that individu: is who manage to avoid cigarette smoking

in their teens are highly unlikely ever to begin. SURGEON

GENERAL’S REPORT at 67. The consequences of adolescent

alcohol ingestion — by far the most widespread of all youth

substance abuse problems - can be even more tragic and

irreversible. See Centers for Disease Control, Mortality Trends,

Causes of Death And Related Risk Behaviors Among U.S.

Adolescents (1993).

The risk that the Policy will be understood to signal that

alcohol and tobacco are of lesser danger is not an idle concern.

Both products are legal for adult consumption, and parents (and

teachers) are far more likely to use those substances than the

drugs of abuse for which Tecumseh tests. See D. Kandel,

Persistent Themes and New Perspectives on Adolescent

Substance Abuse in NEW PERSPECTIVES, supra at 50

(adolescents whose mothers smoke one pack a day are nearly

eight times more likely to smoke — 46% vs. 5.9% — than

children of non-smoking mothers). Indeed, a central challenge

of youth tobacco and alcohol prevention efforts is to overcome

the misperception that such substances are not as serious a

health concern as substances prohibited to all. “For this reason,

prevention specialists and drug educators, including many in

government have begun to use the term ‘alcohol, tobacco, and

other drugs.”” R. WILSON & C. KOLANDER, DRUG ABUSE

PREVENTION 5 (1992) (citing Office of Substance Abuse

Prevention, “Editorial Guidelines”).

“Thus, the federal statutory provision cited as supplying the “interest

of the United States” in this case seeks “‘to combat illegal alcohol, tobacco,

and drug use."” U.S. Br. at 1 (quoting 20 U.S.C. § 7116(6\(2(C)).

24

Bueven f Gncted sneered ines:

atu, Sap tae a

consequences to marijuana, but not alcohol, use — leaves

obvious option: they may participate in extracurricular

must be purchased from drug dealers, whose conduct is subject

- to detection by school and law enforcement officials, alcohol is

widely available in stores and students’ homes. See Resnick, et

al., Protecting Adolescents 278 JAMA at 831 (finding that

ready availability increases likelihood of use).

Finally, adolescent development research points to yet

another troubling problem. Although, as already discussed,

many students’ predominant negative reaction to school drug-

testing will be embarrassment, others are likely to react with

resentment. Drug-testing of the kind at issue is perceived —

understandably — by many adolescents as an expression of adult

~ een at ) my tog param

purpose, while obtaining a “clean”

laboratory. Unlike marijuana, several of the most physically

harmful drugs tested for do not stay in the body long enough to

make detection through random urine screening a realistic

possibility, J.A. 70, 142, and other widely abused substances,

such as “ecstasy” and LSD, are not tested for at all. J.A.71.

B. The Policy Ill Serves The Treatment Needs Of

Students Who Do Have Substance Abuse Problems

As we noted above, for a policy that purports to deal with

25

a “real” substance abuse problem, Tecumseh’s indicates scant

attention to the health needs of students who actually are

chemically dependent. Whether Petitioners are right that the

Policy is undeserving of the “punitive” label, see Br. at 8-9

(highlighting inclusion of treatment component and gradual

way in which sanctions are imposed), its “consequences” are

still more likely to hinder, rather than promote, recovery.'°

First, neither of the policy’s two principal sanctions —

forced withdrawal from extracurricular involvement (the one

expressly provided for) and public exposure (its near-certain

consequence) —can be expected to help a young person who has

become chemically dependent to return to healthier behavior.

Whether or not an adolescent recovering from a substance

abuse problem perceives the full value of extracurricular

participation, he is especially likely to benefit from the

opportunities afforded for structure, supervision, and interaction

with drug-averse peers. See M. GONET, COUNSELING THE

ADOLESCENT SUBSTANCE ABUSER 156 (1994) (“reentry into

high school is especially difficult for recovering teenagers * *

* *At the very time that they are integrating their new behaviors

and new identity into their every day school life, they must face

their former drug dealers and closest drug-using friends”).

Equally troubling is the second sanction: disclosure of the

positive test result to those within the school community.

Putting aside the near certainty that the information will become

known beyond those individuals denominated as “need[ing] to

know” (both through careless discharge of confidentiality

‘SThere surely is tension between Petitioner's insistence that the

Policy's adverse consequences are so mild as to not amount to “punishment”

and their confidence in its deterrent powers. Cf. Kansas v. Crane, 2002 WL

75609 at *4 (2002) (stressing that deterrent purpose is key to distinguishing

tet Gonteetibedtin,

26

responsibilities and by inference from a student’s sudden

“disappearance” from chosen pursuits), the disclosures that the

Policy expressly contemplates - to coaches and faculty

supervisors — are themselves likely to intensify feelings of

shame and futility that adolescents facing chemical dependency

must manage.

For some students (e.g., those new to the school), the

faculty supervisor will essentially be a stranger, low on the list

of persons whom the student (or her parents) would choose to

share highly sensitive personal health information. In other

cases, the supervisor may be a venerated authority figure, whom

the student feels ashamed for having disappointed or with

whom she would be deeply uncomfortable discussing family or

mental health problems that contributed to drug use.

Finally, some students will have very different, closer

relationships with the teachers who supervise their

extracurricular activities. But the Policy, by casting teachers in

the role of front-line enforcers (and sometime specimen

collectors) can operate to interfere with the kind of open and

honest communication with a supportive adult that is critically

important for recovering adolescents.

VY. Tecumseh’s Policy Does Not Respect The Proper

Allocation of Responsibility Among Parents, Doctors

And Schools

A. Drug-Use Detection Is Not A Necessary Part of

Public Schools’ Core Responsibilities

While this Court’s decisions express reluctance to interpret

co Corinna Os ee SS eS

responsibilities as “guardian and tutor,” — to assure the safety

students entrusted to their care and regulate conduct that

impairs the teaching process, see Fraser, T.L.O.- Tecumseh’s

27

Policy does not fit that description. Notwithstanding images

conjured of out-of-control cutlery, animals run amok, and

colliding tubas, the activities for which testing is imposed are

not fairly described as highly safety-sensitive, compare Skinner

(train operation); Vernonia (tackle football), and there is no

suggestion here of wholesale behavioral disturbances that might

overwhelm the school’s ability to maintair. classroom order by

enforcement of ordinary rules governing student conduct.

To the extent that any misbehavior is believed “drug

fueled,” Vernonia, 515 U.S. at 663, the school has the authority

—- unchallenged by Plaintiffs — to subject the offending

individual to a urine screen, J.A. 198, and the school’s many

other anti-drug measures, ranging from its rules against

possession on school grounds, to preventative education, to the

presence of mounted cameras and drug-sniffing dogs, have

already, by the District’s own estimation, succeeded in keeping

any drug problem to minor proportions. J.A. 180.

B. Schools’ Pursuit Of Generalized Student Health

Objectives Are - And Must Be — More Respectful

of Parental And Medical Judgment

In seeking to detect student substance use that does not

manifest itself in suspicious or prohibited school behavior (and

does not arouse the curiosity of the trained dogs), Tecumseh’s

Policy is better described as resting on a more generalized

conéern for the health and well-being of its students.

There is nothing illegitimate about a public school’s

seeking to advance this sort of public health purpose. Indeed,

schools play an important and growing role in public health

promotion generally, see AAP Comm. on School Health,

School Health Assessments, 105 PEDIATRICS 875 (Apr. 2000),

and drug prevention, in particular. But when schools range

beyond their traditional realm — and seek to address conduct

28

that neither occurs nor manifests itself in the school

environment, it becomes incumbent that they do so sensitively

to the interests and judgment of parents and health

professionals.

Indeed, while Petitioners and their Amici liken the regime

to mandatory immunization laws, see Br. at 26; see also

Vernonia, 515 U.S. at 656 (noting that public schools “provide

vision and hearing screening, dental and dermatological checks,

and scoliosis screening”) — those school-based health measures

operate, in relevant respects, strikingly differently from the one

defended here.

First, while public (and private) school students in

Oklahoma and elsewhere must be vaccinated in order to attend

school, see, ¢.g., OKLA. STAT. 63 § 1210.191, those

requirements are not imposed by school boards on educational

grounds. They instead reflect medical judgments of State health

officials. See id. (“Board of Health by rule, may alter the list of

immunizations required”).

Moreover, while schools might - as a matter of

convenience — administer vaccinations on-site, parents are free

to obtain them from any “licensed physician,” id., and, tellingly,

even Oklahoma’s mandatory-immunization provision is

construed to incorporate an exception for when a physician

certifies that “immunization would endanger the life or health

of the child or [t]he parent or guardian * * * submits a written

statement objecting to such tests or immunization on medical,

religious or personal grounds.” Op. Atty. Gen. No. 76-293

(Aug. 5, 1976) (emphasis added).'*

\6¢4¢ also Pub. L. 107-110 (“No Child Left Behind Act”)

1061(cK2KCMAYii), (C\(iii) (providing parental right to opt out of ¥

.

non-emergency, invasive physical examination or screening that is []

29

C. Tecumseh’s Policy Fails To Respect Parental

Prerogatives And Medical Expertise

Tecumseh’s drug testing Policy shows no similar respect

for the judgments of doctors and treatment experts — or wishes

of parents. The urine screen is administered in school only,

under circumstances when testing is considered medically

inappropriate, see generally Testing for Drugs of Abuse 98

PEDIATRICS at 305-07, and in a manner that departs from

professional norms, id., — without regard for the student’s or

parents’ wishes or the medical judgment of his pediatrician.

The results — and other medically sensitive information — are

shared with individuals with no defined counseling or health

responsibility, whose personal connection to the student may be

en donates alyreer-efhy- beseech tenes

ons to impose were made without re for generall

accepted substance abuse prevention and re a h com-mng

The displacement of parental authority is at least as serious

and no more justified. Although Petitioners invoke “pleas by

parents who know their children are using drugs,” Br. at 39, the

Policy trammels, rather than vindicates, parental rights. No

School Board vote was needed in order for a Tecumseh parent

to subject his son or daughter to a random urine test

(presumably the District could have offered to conduct such

testing on its premises, just as it might offer flu shots) — and

nothing prevented a parent from making the judgment that her

child’s positive test result merited “suspension” from one or

the student’s extracurricular activities — or from determining.

that there were teachers and administrators at the school who

would “nee[ed] to know” the results.

Tecumseh’s Policy changed this status quo in four respects.

required as a condition of [school] attendance”).

30

It made the school restroom the lone acceptable venue for drug-

testing and the school’s faculty, the only permissible class of

specimen collectors. It imposed a uniform regime of

suspension from extracurricular involvement and disclosure to

the “need-to- know” group in every instance where a substance

is detected, foreclosing any role for individualized, student-

specific parental — or pediatric — judgment. It simply overruled

the judgments of parents who, for a variety of reasons, would

want their children to participate in Tecumseh’s extracurricular

activities, but not its testing and “treatment” regime. Finally, it

enabled those parents who want their children tested to delegate

to school personnel responsibility for doing so and for fixing

the “consequences” that would ensue when urine tests positive.

The first three of these changes are unambiguously

negative. For the reasons canvassed above, a regime where

parents play their ordinary role — with the school maintaining its

commendably vigilant enforcement of its conduct regulations

— would far better serve the preventative purposes advanced by

Petitioner.

To the extent that the fourth — enabling parents to delegate

drug prevention responsibility to the school — is a “benefit” in

any sense, it is not one deserving positive weight in the public

health or calculus. See, e.g., H. Chilcoat, & J. Anthony, Jmpact

of Parent Monitoring on Initiation of Drug Use, 35 J. AM.

ACAD. CHILD. & ADOLESC. PSYCH. 91 (1996) (parental

unwillingness to take primary role increases risks of youth

substance abuse).

Conclusion

For the reasons stated above, Aynici request that the Court

affirm the judgment of the Court of Appeals.

Respectfully submitted,

DAVID T. GOLDBERG JUDITH K. APPEL

Counsel of Record DANIEL N. ABRAHAMSON

99 Hudson Street, 8" Floor The Lindesmith Center

New York, NY 10013 717 Washington Street

(212) 334-8813 Oakland, CA 94607

(510) 208-7711

Attorneys For Amici Curiae

la

Description of Amici Curiae

Amicus Curiae American Academy of Pediatrics (“AAP”’)

and its member pediatricians dedicate their efforts and

resources to the health, safety and well being of infants,

children, adolescents and young adults. The AAP today has

approximately 55,000 members in the United States, Canada

and Latin America. Members include pediatricians, pediatric

subspecialists and pediatric surgical specialists. The AAP

pursues its mission through the work of 30 committees and 51

sections, and by means including original research, public

education, continuing professional education, and publication.

The AAP publishes Pediatrics, its monthly scientific journal;

Pediatrics in Review, its continuing education journal, as well

as Healthy Kids magazine, manuals on a variety of topics,

including school health, and a series of child care books written

by AAP members.

Amicus Curiae National Education Association (“NEA”),

founded in 1857, is America's oldest and largest professional

organization committed to advancing the cause of public

education. The NEA has over 2.5 million members who work

to improve education at every level, from pre-school to

university graduate programs. NEA has affiliates in every State

and in over 13,000 local communities across the Nation. At the

national level, NEA's work ranges from coordinating innovative

projects that will improve the provision of educational

opportunities to participating in deliberations about public

policies that affect students, teachers, and schools.

Amicus Curiae American Public Health Association

(“APHA”) is a national organization devoted to the promotion

and protection of personal and environmental health. Founded

in 1872, APHA is the largest public health organization in the

world, representing over 50,000 public health professionals. It

2a

represents all disciplines and specialties in public health.

Throughout its history, APHA has been at the forefront of

numerous efforts to prevent disease and promote health. The

organization publishes the American Journal of Public Health,

a peer-reviewed journal.

Amicus Curiae National Association of Social Workers

(“NASW”) is a professional membership organization

comprised of 150,000 social workers, with chapters in every

State, the District of Columbia, Puerto Rico, the Virgin Islands,

Guam, and an international chapter in Europe. Created in 1955

by the merger of seven social work organizations, the NASW

has as its purpose to develop and disseminate high standards of

practice while strengthening and unifying the social work

profession as a whole. NASW and its members have a

significant interest in policies, such as the one at issue in the

present case, that negatively effect children and youth. In

NASW's policy on "Civil Liberties and Justice,” the

Association expressed concern about the unwarranted invasion

of privacy that occurs when mandatory drug testing is used as

a precondition for the receipt of services for which an

individual would otherwise be eligible. The Association

believes the negative and chilling effect on student participation

in extracurricular activities caused by mandatory pre-

participation drug testing requires review and reconsideration.

Amicus Curiae National Association of Social Workers -

Oklahoma Chapter (“NASW-OK”) is the largest professional

association of social workers in Oklahoma. Founded in 1955,

it has more than La ee re ae

OK is a member organization that to

effective functioning and well-being of individuals, families,

and communities in Oklahoma. Its members, trained

professionals with degrees in social work, practice in a wide

variety of settings, including public schools. Its members have

3a

extensive experience working with adolescents and addressing

health issues, including substance abuse. Its members’

experience in the schools and communities of Oklahoma, and

working with Oklahoma’s young people, gives NASW-OK a

well informed perspective on the issues raised in this case. Its

offices are in Oklahoma City, Oklahoma.

Amicus Curiae National Council on Alcoholism and Dru

Dependence (““NCADD””’) is the oldest advocacy organization

in this country addressing America’s most widely abused

drug-alcohol, alone or in combination with other drugs.

Founded in 1944, it has a network of 92 affiliates in 28 states.

NCADD’s mission is to advocate for prevention, intervention,

research and treatment, and to reduce the stigma associated with

alcoholism and other drug problems by working continuously

to change public attitudes and behaviors.

Amicus Curiae Center for Law and Education (“CLE”) is

a national legal support and advocacy organization representing

parents and students in efforts to improve the quality of public

education. Since 1969, CLE has pursued this goal through

litigation, legislative and administrative advocacy, the provision

of technical assistance, and training for attorneys, parents and

other advocates.

Amicus Curiae Loyola Child Law Center (“Center’”’) houses

the children’s law programs at Loyola University Chicago

School of Law. The Center offers an extensive interdisciplinary

child law curriculum. The Center’s Child Law Clinic currently

represents over 100 children in cases involving education, child

welfare, domestic violence, and other related areas. The

Center’s Legislative and Policy Program engages in systemic

advocacy related to children and families. The Center’s faculty

train lawyers, social workers and other professionals in

pediatric law and child and family advocacy. Faculty are also

4a

involved in numerous conferences and advisory panels aimed

at improving the administration of justice for children and

families.

Amicus Curiae Lawyers for Children, Inc. (“LFC”),

founded in 1984, is dedicated to protecting and promoting the

health and welfare of vulnerable children. LFC provides free,

integrated legal and social work services to over 4,000

individual children per year, in a variety of legal contexts. In

training sessions, and seeks systemic improvement of systems

affecting vulnerable children. LFC staff have consulted to other

child-focused organizations throughout the country.