The Fourth Amendment to the Constitution guarantees Americans the right to privacy. It protects citizens from the government intruding upon that right without “probable cause.” Americans like to say, although not as much as we used to, that we are all “innocent until proven guilty.” It is a bedrock principle in our rule of law, and would presumably be near the top of any list of the central tenets defining what it means to be an American.
How, then, can we reconcile the Haywood County Board of Education’s approval of a policy of random drug testing for student athletes with a strong belief in the “innocent until proven guilty” precept? Random drug testing, by definition, is a means for these particular Americans to prove they are innocent. There is no probable cause. No warrant. If they are chosen and refuse to submit to the test, they fail automatically. In other words, they are presumed guilty. Thus, our rule of law is inverted — Haywood County school athletes will be presumed guilty until proven innocent.
Yes, I know that the random drug testing will not be used on all students. It can’t be. The Supreme Court, in ruling that random drug testing can be used in public schools at all, stopped short of allowing comprehensive testing, consenting that it would be a violation of the students’ Fourth Amendment rights. By limiting the testing to students who participate in athletics, the Court was able to “get around” the Fourth Amendment by saying, more or less, “Hey, you don’t have to get tested. You don’t have to play sports.”
I would argue that students should not have to shed their basic Constitutional rights because they choose to play sports. I am a parent, and I would not be pleased if either of my children were forced to pee in a cup in order to satisfy the school’s suspicion that they might be taking drugs. I was also once a high school athlete myself, and I would probably have quit the team before submitting to such a test myself, and I was not using drugs.
To me, the principle of the thing does matter, and that is what I find most disturbing about this entire issue — these days, anyone who speaks out on the principle of preserving basic Constitutional rights is usually seen as a liberal nutcase, a whiner, or an extremist. Indeed, it seems almost MORE American these days to willingly surrender our civil liberties in the name of making ourselves safer — from drugs, from terrorists, from whatever. I’ve heard more than one person say, “What do I care if they (the government) listen to my conversations, I’ve got nothing to hide.” The same sort of comments are being made now by supporters of drug testing. “If you’re not guilty, then you have no reason to worry about taking the test.”
In addition to this objection on principle, I have to ask a simple — and I am sure to many a more practical — question: Does it work? I have yet to see a study that says it does, and I am aware of at least two major studies that say it doesn’t. For one thing, although I am sure some tiny percentage of student-athletes may use or experiment with drugs, I cannot imagine that anyone anywhere believes that is where the real drug problem is — and those who DO use are probably knowledgeable enough to beat the test, or perhaps would even walk away from athletics rather than submit to the test, in which case the test is actually COUNTERPRODUCTIVE to the goal of reducing drug usage among students, since the likelihood of that student becoming a more frequent user of drugs has just multiplied. Something will fill the vacuum where athletics used to be, and it’s a good bet that drugs may fill that emptiness. That is, after all, what drugs are for.
I sincerely do not believe that anyone on the board who voted for the policy — or anyone else who supports it — has anything but the very best intentions. The drug problem in our country is real, and must be taken seriously. In the 1980s, the Reagans launched the famous War on Drugs, which brought with it tougher laws, longer jail terms, and more resources to battle the drug scourge. So did we win the war? Apparently not. When will we learn that the problem is cultural, and must ultimately be solved on a cultural level? Random drug testing will not prove any more effective than the measures taken in the War on Drugs, but it will feel like we are doing something, and it will “validate” those who want to prove their innocence.
In the meantime, even as we face these challenges, we must also decide what kind of country we want to live in. The Fourth Amendment, “innocent until proven guilty” — are we really prepared to give these over in exchange for the illusion of greater security?