Dueling headlines over school drug testing

Supreme Court Justice Backs Drug Testing

The Supreme Court ruled last year that it was constitutional for public schools to perform random drug tests on students participating in extracurricular activities. The rationale was that the state had an especially strong interest in preventing drug abuse among children, and that the efficacy of testing as a deterrent to use was (in Justice Scalia’s words) “self-evident.” Justice Thomas, writing for the Court, called testing “a reasonably effective means” of prevention.

Now the same group that does the annual Monitoring the Future survey which is used as the main national report card in the drug war, has done a large-scale study of school districts with and without mandatory testing and found approximately zero difference in drug use rates. The obvious interpretation is that the frequency of tests and severity of sanctions in actual programs aren’t high enough to generate the deterrent effect that testing ought, in principle, to be able to create.

But the results don’t leave much room for doubt about the efficacy of the programs now in place; it’s hard to believe that the National Institute on Drug Abuse would be muttering about the need for several more studies if a study this big done by a group that respectable had found that testing works.

That raises, or ought to raise, the question whether a procedure that might under some circumstances have an effect, and whose intrusion on liberty would be justified by that effect, is still justified (in legal terms) if done in a form that does not in fact have that effect. Is the fact that twice-weekly drug testing might be effective sufficient justification for exposing students to what turns out to be useless annual drug testing?

Questions for my legal-scholar friends:

Does the Supreme Court entertain writs of error coram nobis or some parallel version of a motion for reconsideration?

Would a District Court be justified in rejecting a new testing plan as unconstitutional when the controlling Supreme Court decision finding it constitutional turns out to have been based on an assumption false to fact?

Whatever the answers to those questions, the issue may come to the Court again as part of a challenge to a policy testing all students, not just those participating in extracurriculars.

Stephen Breyer, part of the majority, seems to have chosen an unfortunate moment to reiterate his support for drug testing: apparently his remarks coincided with the release of the new study undercutting the factual basis of the decision, in which his was the swing vote. It will be interesting to see whether Breyer allows himself to be swayed by the facts, whether Thomas continues to think that something with zero measured effect is still “reasonably effective,” and whether Scalia is prepared to deal with the possibility a proposition that strikes him as self-evident might nevertheless be untrue.

Of course aren’t the only venues for action here. I would expect the new study to slow down the drive for school-based testing; it might even lead some school districts to abandon their drug-testing programs.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com