Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls – Oral Argument – March 19, 2002

Media for Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls

Audio Transcription for Opinion Announcement – June 27, 2002 in Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls

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William H. Rehnquist:

We’ll hear argument now in number oh oh oh, pardon me oh one three thirty-two, the Board of Education of Independent School District number ninety-two of Pottawatomie County versus Lindsay Earls.

Ms. Meoli M- m- Meoli I guess.

Is that is that the correct pronunciation?

Linda M. Meoli:

Meoli.

William H. Rehnquist:

Meoli, okay.

The third time is the charm.

[Inaudible]

Linda M. Meoli:

Mr. Chief Justice, and may it please the Court.

This case involves the constitutionality of the Tecumseh School Board’s decision to implement a suspicionless drug testing pro- policy for students in competitive activities as a reasonable response to student drug use.

Tecumseh’s policy represents a natural, logical, and rational application of this Court’s decision in Vernonia V Acton.

Vernonia’s policy applied to students who chose to participate in interscholastic athletics.

Tecumseh’s policy applies as well to athletics, but also to all the other competitive activities that are offered by the district.

Respondents do not challenge the policy as applied to the athletics, conceding that this Court approved that practice in Vernonia.

Competitive…

Sandra Day O’Connor:

Well, this policy goes beyond what was permitted in Vernonia, does it not?

It greatly expands…

Well, it covers…

the number of students covered by the policy.

Linda M. Meoli:

It it covers a wider variety of interscholastic competitive activities.

Sandra Day O’Connor:

And the evidence is not as strong, i- is it, in this case of drug use in the school as as was the case in Vernonia?

Linda M. Meoli:

Well, Your Honor, we do not believe that is true.

Well, if you…

Sandra Day O’Connor:

go by the district court’s findings, that’s what you’d conclude.

Linda M. Meoli:

e- i- The district court in Vernonia?

Sandra Day O’Connor:

In this case.

Linda M. Meoli:

In this case.

What do you —

Sandra Day O’Connor:

the young people who were involved in these particular extracurricular activities?

Linda M. Meoli:

Yes, we do have evidence of drug use w- i- with these students in extracurricular activities.

In…

David H. Souter:

of the the reports that have been filed up to the eve of the adoption of this regulation by the school district with the Feds, year after year after year, saying, things are fine here? The only thing we have to worry about is is some beer.

Linda M. Meoli:

No, Your Honor, I don’t think they were lying.

Federal grants…

David H. Souter:

were they were saying at the same time that they didn’t have a problem with with what we usually refer to as drugs.

Linda M. Meoli:

They said it e- it wasn’t a major problem at that time.

And and in point of fact,

David H. Souter:

as I understand it, e- since the testing has been carried out among the the class of people subject to this challenge, there have been only three instances of of any drug use found.

From the from the drug testing?

David H. Souter:

it seems to me that your evidentiary problem is up to the eve of adopting the regulation, the school district was saying, we don’t have a problem.

Linda M. Meoli:

Let me a- answer the second part first.

But the important piece…

William H. Rehnquist:

the existence of a policy might be expected to deter drug use so that you would have fewer i- instances after it was imposed.

Linda M. Meoli:

Y- yes, Your Honor, and in and in…

fact really it…

David H. Souter:

know, will we?

William H. Rehnquist:

Well, l-

let her…

William H. Rehnquist:

answer the question, will you?

Linda M. Meoli:

Your Honor, in fact, it it really did.

Ms. Meoli, d-

Antonin Scalia:

didn’t we say in Vernonia e- that in Skinner, which was the th- railroad employee testing case, we did not demand that it be shown that the particular railroad had a drug problem? Didn’t we say it was enough that there was a nationwide problem?

Linda M. Meoli:

Yes, Your Honor.

Antonin Scalia:

We…

said that in…

Antonin Scalia:

Skinner, and we adverted to that in Vernonia.

Linda M. Meoli:

And i- and Vernonia’s evidence as well showed that there was not a specific drug problem among athletes.

Among…

David H. Souter:

I thought the argument in Vernonia and I thought the opinion in Vernonia, in assessing the particular interest of the district, repeatedly emphasized the particular problems with the athletes.

Linda M. Meoli:

And I’m not saying that, Your Honor.

But isn’t that the implication…

David H. Souter:

of what you’re…

saying?

Linda M. Meoli:

No, Your Honor, I don’t.

Except for one startling difference…

Ruth Bader Ginsburg:

The e- in e- n- there was a problem with athletes.

Linda M. Meoli:

Well, e- e- Your Honor, we have never said that the the students in interscholastic competitive activities are the only students or even the most likely students to be abusing drugs.

Ruth Bader Ginsburg:

Well, I’m…

quotin-

Ruth Bader Ginsburg:

I’m referring specifically to page one hundred and one hundred and one of the joint appendix where the question is whether the students who tend to be indevolved [: involved] in drugs are the ones most likely to be choosing extracurricular activities.

Linda M. Meoli:

That was the testimony of the of the board president, Dean Rogers.

Ruth Bader Ginsburg:

Where is that testimony?

Linda M. Meoli:

I think it is at page a hundred and six, Your Honor.

Ruth Bader Ginsburg:

We had no basis for saying yes or no.

Linda M. Meoli:

Well, e- e- yes, he sa- he says that initially, and then he goes on to say, I just know that all age levels, all categories categories if we’re categorizing the students that frequent the park.

Yes, but he’s not…

Ruth Bader Ginsburg:

saying, as was the case in Vernon- Vernonia, that here is a group that we can identify that has this problem.

Linda M. Meoli:

Y- your Honor, the use of ed- of of drugs among the students in competitive activities was just one of the factors as to why the Tecumseh board selected that group.

Antonin Scalia:

So…

Linda M. Meoli:

or or prevent parents from bring persecuted…

Well, if if you want…

You don’t You don’t have to go that…

Antonin Scalia:

far, do you, d- in…

in order…

Antonin Scalia:

to in order to justify limiting it to those who participate in in voluntary activities?

Linda M. Meoli:

No, Your Honor.

It seems to me…

Antonin Scalia:

you could say even if we could drug test anybody, we made the choice of giving a student who feels that strongly about not undergoing drug testing the ability to avoid it by simply not engaging in the extracurricular activities.

Linda M. Meoli:

Yes, yes,

Your Honor. I…

David H. Souter:

valid argument I I suppose an equally valid argument would i- for for testing everybody would be our object is to stop drug use, not to penalize people who go out for band.

Linda M. Meoli:

i- i- Your Honor, the i- the p- the purpose of this program is not to discipline students.

those students…

David H. Souter:

drug use among those who do not go out for band?

Linda M. Meoli:

Yes, Your Honor, I I I…

believe we do.

David H. Souter:

good that you can test everybody?

Linda M. Meoli:

W- well, number one, I I think there is a deterrent effect for implementing this program among the student general student body.

If they want to — no-

Linda M. Meoli:

I- if they want to try out or d- or aud- audition for one of those competitive activities, they know in advance that one of the regulations i- i- i- is to be subjected…

to drug testing.

David H. Souter:

what you’re arguing is is is a justification for the present policy that you’ve got, and I understand your position there.

in.

Linda M. Meoli:

Well, I think there is a an a reasonably good argument for that.

No, I I realize…

Linda M. Meoli:

even if we utilize the balancing test that was utilized in Vernonia, I I think there is a…

really good argument…

David H. Souter:

then the whole notion of special need has has, more or less, evaporated.

I suppose the…

John Paul Stevens:

distinction that you draw is based on the fact that you have a sanction for the people that you apply it to.

Linda M. Meoli:

E- exactly, Your Honor, and and that really is our position because…

we c- have…

to educate the…

John Paul Stevens:

you impose is you just can’t play in the band or or cheerlead or whatever it is…

they want to do.

Linda M. Meoli:

You can remain in the class.

So, you have a special…

John Paul Stevens:

burden if you want to engage in extracurricular activities.

Linda M. Meoli:

yes, Your Honor.

Well, how about…

Ruth Bader Ginsburg:

taking elective classes, classes that the State doesn’t require you to take, but some students might like to take?

Linda M. Meoli:

Well, Your Honor, we had to draw a line somewhere, and and e- even though elective…

classes are a choice…

Ruth Bader Ginsburg:

the line that you would draw as a question of the school’s policy, but you were saying i- at least you see a problem with testing everyone because people are compelled to go to school and so th- that’s why you resisted drawing the line there.

My question is if…

Ruth Bader Ginsburg:

you’re doing a voluntary, then why don’t you say as well, you volunteer for you’re taking a certain course, this is elective course.

Linda M. Meoli:

Well well, elective courses are really mandatory, Your Honor, in many cases.

Antonin Scalia:

Except for that, it’d be a good idea, though, wouldn’t it?

Linda M. Meoli:

Ye- i- Yes Your Honor.

What I thought you’d s-

Linda M. Meoli:

if we could fashion a way to do it, I believe the majority of school boards would be behind it.

extracurricular —

John Paul Stevens:

Is there any other sanction other than i- oth- other than ineligibility for extracurricular extracurricular activities? Is there any other sanction imposed on a student who is found to’ve been using drugs?

Linda M. Meoli:

No no, Your Honor, and in fact, that only happens in this policy under the third time…

John Paul Stevens:

So, really the student could say, well, the worst is a- if I g- go out for ecert- extracurricular activities and get caught, it’ll be it’ll be back where if I hadn’t gone out at all.

[Inaudible]

John Paul Stevens:

gets back wh- to square one.

Linda M. Meoli:

W- well, I think g- I think children who engage in these activities really want to compete.

David H. Souter:

Could you,

for…

David H. Souter:

that reason, adopt as a as one of your sanctions or a supplementary sanction simply publicity that the person had been caught? Anybody who fails the drug test will have his name and photograph posted on the bulletin board.

I I I think it would be…

Linda M. Meoli:

very cruel, Your Honor.

As to whether…

Linda M. Meoli:

so whether it is constitutional or not I we’re we’re not in in in the job of disciplining students.

William H. Rehnquist:

Very well, Ms. Meoli.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court.

Anthony M. Kennedy:

Suppose you’ve had a s- s- hard statistical evidence to show that the kids that go out for the extracurricular activities are the ones that d- really do not use drugs, that the high drug user population is in those that don’t engage in the activities.

Paul D. Clement:

I I think in a case like that, it still might be appropriate for the school district to test the students involved in extracurricular activities, and I think that is because, as this Court has emphasized on a number of occasions, by making the the the testing program applicable only to an avoidable activity, the the school district would be ensuring the reasonableness of the program under the Fourth…

Amendment.

Sandra Day O’Connor:

there’re some we we had an amicus brief by some pediatrics association and so forth that pointed out that students that engage in these extracurricular activities are, indeed, the least likely to be involved in drug use.

Well a co-

Sandra Day O’Connor:

It’s so counterintuitive, isn’t it?

Paul D. Clement:

A couple of points in response to that, Justice O’Connor.

t- school wide.

Sandra Day O’Connor:

face of a school district that h- certifying to the Federal Government they don’t have a drug problem.

Paul D. Clement:

Well, I don’t think it’s that odd, Justice O’Connor.

Sandra Day O’Connor:

Well, if alcohol’s the problem, why don’t they address that? This is just I I I mean, i- it’s structured in a way to do very little good it seems…

to me.

Antonin Scalia:

do you think any school in the country doesn’t have a drug problem?

Paul D. Clement:

I would be surprised to find a school district that didn’t.

Can Can you tell me…

Antonin Scalia:

Skinner and Von Raab, we imposed or we permitted the imposition of drug testing on the basis of a nationwide problem, didn’t we, without without showing that the particular entity in question shared in that national problem?

Paul D. Clement:

That’s correct, Justice Scalia.

Well, d- do you…

Paul D. Clement:

drug counseling, I’m not sure they want to ask him w- what groups are…

you in.

May I ask?

John Paul Stevens:

What is your view on the v- on the validity of a a school wide drug testing program?

Paul D. Clement:

Justice Stevens, we think such a program would be constitutional, but we think the…

Your view differs…

John Paul Stevens:

from the petitioner’s then.

Paul D. Clement:

You We We do have that difference, but we think a program like this is constitutional for three reasons.

Second, as I…

David H. Souter:

they agree to it.

Paul D. Clement:

Two points, Justice Souter.

But it it doesn’t…

Ruth Bader Ginsburg:

you a question that that is concern concerns me about the difference between this case and Vernonia? If we if we look at what people might expect in the real world, where people know that athletes, professional athletes, Olympic athletes, athletes are tested for drugs, but people who are just everyday people aren’t.

Paul D. Clement:

Well, I I mean, I th- I think i- w- one fact is that I think it is increasingly becoming true that these these sorts of policies are in in society as a whole.

recognize…

David H. Souter:

y- you would make and I think you’ve said this the same argument if they had decided to have a universal drug testing policy in the school.

Paul D. Clement:

I I would, Justice Souter.

reasonableness.

David H. Souter:

th- that point, I I the the so called special need has become virtually a universal need.

Paul D. Clement:

I I would like to say two things in response to that.

David H. Souter:

And and the special need would be a universal need in every school in the United States.

Paul D. Clement:

I I I do think it would properly recognize that the school context is different, and that school boards have a freer hand in testing their students than the Government has testing either employees or it’s…

citizens at large.

David H. Souter:

that is the case, what is the danger in the school case, comparable to the to the railroad worker’s danger or the the the customs officer’s danger? What is the danger as distinct from simply the desire to deter illegal drug use?

Paul D. Clement:

I think the danger is this.

But in fr-

Antonin Scalia:

getting young people used to a drug culture.

Paul D. Clement:

I agree with that, Justice Scalia, and I would I would add that this is not the only context where where where the Federal Government has recognized that difference.

[Inaudible]

Anthony M. Kennedy:

hardly a revelation that the Government is concerned about what drugs do to our culture.

Paul D. Clement:

A- Absolutely, and I think it’s…

perfectly…

Anthony M. Kennedy:

rocket science, is it?

Paul D. Clement:

No, and I and I don’t think it’s rocket science also to say that that that concern is particularly acute with respect to the youngest and most vulnerable members of society.

William H. Rehnquist:

Thank you, Mr. Clement.

Graham A. Boyd:

Mr. Chief Justice, and may it please the Court Opposing counsel said we have to draw the line somewhere, and the way the way to draw the line in this case is to keep in mind the core principle that individualized reasonable suspicion is the standard for school searches set forth in TLO.

the core of TLO…

Antonin Scalia:

individualized suspicion in Vernonia.

Graham A. Boyd:

There there was not, and Vernonia is…

Well, so…

Antonin Scalia:

so there goes your principle.

Graham A. Boyd:

Th- Vernonia is the exception to the TLO rule.

Stephen G. Breyer:

Can have medical metal detectors in schools where they’re afraid the children have guns?

Graham A. Boyd:

Yes, they can.

Stephen G. Breyer:

Now, there’s no individualized suspicion there, is…

Graham A. Boyd:

No, there’s not,

and the reason…

Stephen G. Breyer:

throat swabs if you feel that there is a contagious disease?

Graham A. Boyd:

Throat swabs if you think there’s a contagious disease.

I was trying to f- well, that’s…

Stephen G. Breyer:

what I I raised that because, of course, everyone is making a criminal law analogy,

but nobody’s arrested here.

Graham A. Boyd:

Well…

Stephen G. Breyer:

Nobody is arrested.

Graham A. Boyd:

Well…

Stephen G. Breyer:

and and I just wonder.

Graham A. Boyd:

Well, unless the Court stands ready to overrule TLO, I believe it is the standard.

observa-

Stephen G. Breyer:

it’s absolutely clear there isn’t individualized suspicion, so you win automatically if that’s the test, I would think.

Well…

Stephen G. Breyer:

course, it wasn’t in Vernonia.

Graham A. Boyd:

Of of course.

being drug tested.

William H. Rehnquist:

presumably a year round thing in a way that football is not.

Graham A. Boyd:

No, it’s not, Your Honor.

William H. Rehnquist:

Are are you saying that, for instance, choir in T- Tecumseh is only in the fall?

The competi-

William H. Rehnquist:

in the winter or only in the spring?

Graham A. Boyd:

Yes, Your Honor, in terms of the competitions, they are.

are of concern to the school.

William H. Rehnquist:

give me an ou- Wh- Wh- Wha- Which Which season of the four season is for band in Tecumseh?

Graham A. Boyd:

I i- I I honestly don’t know what months of the year they compete in, and and…

They can’t play for all these four seasons, I guess. But let let…

Anthony M. Kennedy:

me let me ask y- ask you this.

Graham A. Boyd:

Mhm.

Anthony M. Kennedy:

and that’s what’s happening here.

Graham A. Boyd:

Well, Justice Kennedy, you’re absolutely right.

I need to p-

Anthony M. Kennedy:

me if a school is better than other school districts s- s- insofar as drug use, they have less drug use, that they’re maybe entitled to keep it that way.

Well…

Anthony M. Kennedy:

to say not.

Graham A. Boyd:

Well, there there’re couple of things.

Stephen G. Breyer:

But they have a record here that, of course, suggests if you want to know if drugs are going on in your school, you ask the kids.

Graham A. Boyd:

Well…

And…

Stephen G. Breyer:

I don’t really see how that de- re- I mean, you know, you might be able to drive a millimeter of light between that and Vernonia.

Well, J-

Stephen G. Breyer:

and try, but I I can’t I I mean, I I I they did what I would have done.

Graham A. Boyd:

Well…

Stephen G. Breyer:

and they get a positive response when it’s a question of drugs.

Graham A. Boyd:

Justice Breyer, I I think you’re you’re right.

Why? Now, I…

Stephen G. Breyer:

Of course if I read the cases, as I do, and they logically require you to win, that’s the end.

Graham A. Boyd:

Sure.

Stephen G. Breyer:

But just in case it’s open I would I would like to know why.

Graham A. Boyd:

Sure.

Stephen G. Breyer:

Two, we don’t want to put the student, although we’d really like to, to the choice of school versus drug testing.

Graham A. Boyd:

Well, I i- I I mean, I I think what’s perhaps behind your question is a little bit of what’s the law and why is the law that…

way and a little bit of why the policy…

Stephen G. Breyer:

behind the question is that I think undoubtedly you’re right, that this is a slight expansion of Vernonia.

you to…

Graham A. Boyd:

Okay, fair enough.

last sentence on that page…

Antonin Scalia:

this argument counsel.

Graham A. Boyd:

Well, it…

it it…

Antonin Scalia:

And what what I miss in your argument is any recognition of the fact that we are dealing here with minors.

Graham A. Boyd:

Let let me, l- l- Let let let me let me do two things, if I may, Justice Scalia.

her privacy as part of that?

Antonin Scalia:

proposition that the only valid basis for conducting drug searches is to is to enable the school to maintain discipline.

No, no.

Antonin Scalia:

long as you have a bunch of druggies who are or- or a orderly in class, the school can take no action.

Is…

Antonin Scalia:

is that what you want us to…

Graham A. Boyd:

A- A-

Absolutely…

Graham A. Boyd:

not.

about in loco parentis.

Ruth Bader Ginsburg:

made in Vernonia, and it does go across the board, and that was the statement that drug testing on suspicion, which is the alternative, because in life, it’s everything as compared to what.

[Inaudible]

Ruth Bader Ginsburg:

and diverts the teachers…

Graham A. Boyd:

Right.

Ruth Bader Ginsburg:

who are engaged in that exercise from the job of teaching to being a police officer.

Graham A. Boyd:

Justice Ginsburg, there’s a good answer to that question.

kids.

Anthony M. Kennedy:

but the in loco parentis argument works against you there too because in loco parentis also indicates that all children are forced to go to this school.

Graham A. Boyd:

Yes.

Anthony M. Kennedy:

And we have to accept that a majority of the parents want to make sure that those children are in a drug free atmosphere.

Graham A. Boyd:

In lo-

Anthony M. Kennedy:

And they have they and and you you seem to me to be disparaging about police dogs and locker locker searches, maybe that’s what you’re going to challenge next.

Justice…

Anthony M. Kennedy:

rights of other children…

Graham A. Boyd:

[Inaudible]

Anthony M. Kennedy:

who want to go to a school which is drug free, if they can.

Graham A. Boyd:

Absolutely,

Justice Kennedy.

Anthony M. Kennedy:

me that’s part of in loco parentis too because those students are required to go to the school just as as the drug user is.

Graham A. Boyd:

A- y- y- you’re absolutely right about that, and please don’t hear me to be disparaging of those other tools because those are tools that do not include a blanket intrusive search, which is the principle that’s at issue here.

Well, why does it…

William H. Rehnquist:

make any difference why you applaud it or not?

Oh, it probably doesn’t. It probably doesn’t.

Graham A. Boyd:

It d- it does.

school…

William H. Rehnquist:

saying that the in loco parentis principle does not apply in the case of a school if a minority of parents object to what the school is doing?

Graham A. Boyd:

That’s not my…

Well, I…

William H. Rehnquist:

thought that was what you were saying a moment ago?

Graham A. Boyd:

Let m- let me please try to be more clear about that.

William H. Rehnquist:

Well, how how did…

Hazel-

William H. Rehnquist:

how does Hazelwood fit that description?

Graham A. Boyd:

Well, because of the disruption that could be caused by the sch- by the school paper articles.

disruption…

William H. Rehnquist:

think the reason in Hazelwood w- was ju- wh- the discipline was justified was i- i- caused disruption, but because when you’re learning in school, you follow the instructions of the teacher.

Graham A. Boyd:

Well, and and also the form issue.

You did, yeah.

Graham A. Boyd:

I did.

the student…

William H. Rehnquist:

w- sa- say again why you you think the Vernonia situation, with respect to this point, is different than the Tecumseh.

Graham A. Boyd:

Sure.

the drug use.

William H. Rehnquist:

that i- questions been battered b- batted back and forth that comment…

Graham A. Boyd:

Mhm.

William H. Rehnquist:

y- I you’re y- you’re you’re not saying, are you, that unless the school has the sort of discipline problem they had in Vernonia, it can’t do this?

Graham A. Boyd:

No, I’m not.

don’t…

John Paul Stevens:

on the drug test? If you had a choice, in terms of which is the I understand you think this is clearly unconstitutional.

Graham A. Boyd:

I’m not really sure that one can can r- can rank more and less constitutional.

Justice Stevens.

John Paul Stevens:

Scalia g- would would respond by saying, well, everybody knows there’s a potential problem in every school in the country, and that’s enough.

And why isn’t that an effective argument?

Graham A. Boyd:

it’s not enough because what that would say is that i- i- t- it is really that the balancing test behind the Fourth Amendment reasonableness requirement becomes one where there’s no weight on one side of the of the balance.

vague, so let me Okay.

Stephen G. Breyer:

they’ve come in with a brief on the other side and said, you know, despite the fact that we’re spending X billion dollars, two-thirds of which goes on the supply side for interdiction…

Graham A. Boyd:

Right.

Stephen G. Breyer:

demand has stayed constant among teenagers, and it’s about twenty to thirty percent of all of the children in these high schools who take drugs.

would…

Stephen G. Breyer:

be constitutional, to say here’s a particular problem, twenty to thirty percent of the kids are taking drugs, and we want to come in with a solution that’s tailored to that?

Graham A. Boyd:

Well, it’s you know, the number is probably, according to Mr. Clement, is more like fifty percent, and and that fifty percent of of the kids in the high…

schools are using drugs.

Stephen G. Breyer:

than I thought…

Graham A. Boyd:

And…

Stephen G. Breyer:

And…

then wh-

Stephen G. Breyer:

wha- if that if…

that’s…

Stephen G. Breyer:

fine, then then then i- then there is the problem you talked about, which I just heard you say.

Graham A. Boyd:

Well, if it’s fifty percent nationally, this school in its reports to the Federal Government says that its school wide drug use based on its own surveys, which is where the national data comes from, surveys, is five percent.

five percent. So…

Stephen G. Breyer:

may- maybe they exaggerated in that report.

Graham A. Boyd:

Well —

Stephen G. Breyer:

He didn’t put numbers on it.

Graham A. Boyd:

Right, he he did…

not.

Stephen G. Breyer:

used the word serious problem.

Graham A. Boyd:

Okay.

Stephen G. Breyer:

o- in your opinion a school that did find that it was within, let’s say, half the average, say twenty percent or…

twenty-five…

Stephen G. Breyer:

percent, and they did feel that a significant number of their extracurricular activity students were involved in that, if if they’ve th- heard that through hearsay or any other way that was reasonably plausible for…

policy makers,

Stephen G. Breyer:

they could then do this in your opinion.

Graham A. Boyd:

No, they could not because there’s still is a need for a safety rationale.

non-athletes. There’s…

William H. Rehnquist:

rationale with golfers in Vernonia?

Graham A. Boyd:

Well, the the safety rationale i- i- I mean, certainly the Court in Vernonia didn’t talk about golfers one way or…

or another, but…

William H. Rehnquist:

you’re saying that Vernonia was based on a safety…

ration-

William H. Rehnquist:

Its testing included golfers.

Graham A. Boyd:

Well, in Vernonia, the Court talked at some length about the safety rationale.

choir.

Antonin Scalia:

overdose?

Graham A. Boyd:

Death from overdose is certainly a…

concern, but there’s no…

Antonin Scalia:

life and death is is i- is is really not involved in in in in in the fight against drugs?

Graham A. Boyd:

It it absolutely is, Justice Scalia, and whe- and…

Let’s not…

Antonin Scalia:

minimize that.

Graham A. Boyd:

I I don’t mean to, and where there is evidence of drug use among a group of students,

then I th-

Antonin Scalia:

a- a- as far as as far as the extent of the drug use is concerned, th- this is an elected school board, isn’t it?

Graham A. Boyd:

It is.

Antonin Scalia:

W- w- why why should I trust your assessment of how serious the drug problem is and what measures are reasonable to counter that that seriousness over the assessment of of the local citizens who who elect their school board, and their school board says we have a big enough problem that we want to use this draconian measure?

Graham A. Boyd:

Well, I think if we listen to the school board and to the school administration, who themselves are even closer to that problem, what they say is, we’ve identified enough of a problem that initially we want to test our athletes.

problem. We don’t have any…

Anthony M. Kennedy:

the school district said, we’re going to have two schools and you can go to either one.

One,

Anthony M. Kennedy:

they don’t have dogs or or tests or anything else.

Graham A. Boyd:

[Inaudible]

Anthony M. Kennedy:

And and and and the other school and the other school is they have m- mandatory testing for everybody.

Graham A. Boyd:

I don’t think so because I think even by the nature of that hypothetical, you’re it it presupposes one of the schools is going to be vastly inferior on a number of grounds.

Anthony M. Kennedy:

Vast experience why?

E- exc-

Anthony M. Kennedy:

because there’re drug users there.

Graham A. Boyd:

Well, I I think n- no I don’t think that’s the reason why, I…

No…

Anthony M. Kennedy:

parent, no parent would would send the the child to the first school that I suggested, other than perhaps your client wants to go there.

Graham A. Boyd:

Well, sh- she absolutely would not, Your Honor.

would attest to that.

Anthony M. Kennedy:

doesn’t don’t magnet schools have rules for uniforms and s- and so forth that that are they’re completely optional? A school district could have two schools, one with one with no testing, the other with testing.

Graham A. Boyd:

I I think uniforms are a world apart.

not an intrusive blanket search. Exactly. It it is.

David H. Souter:

What what do you th- what do you say just frankly to the argument, forget individualized need, forget special need entirely, forget suspicion.

Graham A. Boyd:

I I think the answer to the argument is the Fourth Amendment turns on reasonableness.

That doesn’t answer the…

Antonin Scalia:

question.

That’s the question. Yeah.

Graham A. Boyd:

I see that my time is up.

William H. Rehnquist:

Ex- yes.

Graham A. Boyd:

Thank you.

Thank thank you,

William H. Rehnquist:

Mr. Boyd Ms. Meoli, you have one minute remaining.

Linda M. Meoli:

Mr. Chief Justice, if there are no further questions, I’ll waive the remainder of my time.

William H. Rehnquist:

Very well.