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drug test false positives
Introduction
Random drug testing of student athletes has become a practice in some school
districts and is probably being considered in many more. Advocates of random
drug testing policies believe they will minimize the use of drugs and alcohol,
at least among athletes. Few people would argue against this desirable outcome;
however, the methods being utilized, the means, have raised questions in the
minds of many individuals. In fact, since the 1995 Supreme Court ruling that
upheld drug testing for student athletes, these policies remain the exception
rather than the rule inthe country's 15,500 public school systems (Greenhouse,
2001).
As a high school principal I have fielded requests for the development of a
random drug testing policy for athletes. My response was not initially guided
by research, I was opposed to the policy. My rationale was that once a student
tested positive to the point that they were not allowed to participate, they
would no longer have a coach who could be a positive influence in their life,
and they would probably become more involved in the use of drugs and alcohol.
Coaches responded that athletes that used drugs and alcohol were a negative
role model for other adolescents, especially younger athletes, who would also
be influenced by their strong desire to be accepted. Both arguments are persuasive;
however, I began to see the coaches' view as the greater good. More students
would benefit if negative role models did not occupy a position of status in
our school culture. However, I still have concerns and am apprehensive as to
the ends justifying the means in this scenario.
Should high school athletes be subjected to random drug testing in order to
participate, or not? The purpose of this paper is to analyze this controversy
from an ethical perspective, applying the principles of benefit maximization
and equal respect of persons, looking at the costs and benefits of adopting
such a policy, and investigating the historical precedents for the schools to
assume this societal problem.
Framing the Inquiry
The United States has been experiencing a problem with the illegal use of alcohol
and theuse of illegal drugs. Like other societal problems effecting our schools,
drug and alcohol abuse has not spared our schools' youth. Recognizing the extent
of the problem, states are requiring drug/alcohol education, like the Drug Abuse
Resistance Education program (D.A.R.E.), operating in all fifty states, and
have also enacted legislation in an attempt to assist students with drug/alcohol
problems. Through the student assistance programs, school districts are required
to try and identify students with drug/alcohol problems, and with parental support,
channel them to an appropriate treatment. Student assistance teams, comprised
of trained faculty, a drug/alcohol counselor, and a mental health counselor,
have been established to accomplish these tasks.
Drug testing policies did not originate with educators. As society tried to
crack down on the use of drugs, the federal government established regulations
requiring suspicionless drug testing of certain classes of employees whose jobs
involved the public safety. School districts with the same concerns created
similar policies, but their policies are modeled after the United States Olympic
Committee's adoption of a no-advance warning drug testing policy. However, as
noted earlier, due to the controversy regarding these policies in schools, they
remain the exception rather than the rule.
Indicative of this controversy are the divergent decisions of state and federal
courts in regards to random drug testing in general, and more specifically,
for high school athletes. When suspicionless random drug testing policies were
first passed for federal employees whose jobs involved public safety, they were
challenged as a violation of the Fourth Amendment protection against unreasonable
searches and seizures. The Supreme Court ruled that these rights were not violated,
and further, that search warrents based on probable cause were not required
because the purpose of such searches was not to gather evidence for a criminal
prosecution. And if employed in the private sector, testing programs were not
Fourth Amendment limitations, although they could be challenged under state
invasion-of-privacy and wrongful discharge laws (Fischer 1999).
In cases involving high school athletes, two cases with divergent results will
be discussed here. In 1985, the New Jersey Superior Court ruled in Odenheim
v. Carlestadt-East Rutherford Regional School District, that a urine drug
test was a violation of the students right to reasonable expectations of privacy.
In a 1995 Supreme Court split decision, in Veronica School District v. Acton,
the Court upheld an Oregon school district's policy requiring random drug testing
as a requirement for participation in interscholastic athletics. However, the
Court established that creating such a policy was only acceptable under special
circumstances and that such a policy was very limited in scope (Fischer 1999).
What were the special circumstances of the Veronica School District's drug/alcohol
problem that a majority of the Supreme Court justices felt justified to uphold
the policy? Trial testimony indicated that there was a significant rise in disciplinary
problems in the school, much of it involving students who participated in interscholastic
athletics. The disciplinary problems, "had reached epidemic proportions ....
fueled by alcohol and drug abuse as well as by the students misperceptions about
the drug culture" (Fischer, 1999).
The drug-testing program in this case was limited in scope, carefully carried
out to protect privacy as much as possible, and the results were available only
to the relevant administrators. Justice Scalia, writing for the majority, applied
the balancing test and concluded that the compelling interest of the state in
having a drug-free school environment and the safety of the students, particularly
of the athletes, outweighed the very limited invasion of privacy. While he recognized
the students right to privacy, Justice Scalia noted that, "with regard to medical
examinations and procedures...' students within the school environment have
a lesser expectation of privacy than the population in general." Furthermore,
privacy expectations are even less for student athletes. For example, Justice
Scalia noted that in locker rooms, "an element of communal undress is inherent
in athletic participation"(Fischer, 1999).
"While the Court upheld the urinalysis as a reasonable search under the
circumstances, it made clear that such random searches must be justified by
a compelling state interest and the facts of the particular situation." Justices
O'Connor, Stevens, and Souter dissented and argued that individualized suspicion
should be required to justify such an intrusive search as urinalysis and that
the blanket or random searches have always been considered intolerable and unreasonable,"under
our Constitution" (Fischer, 1999).
The basic controversy revolving around the issue of whether or not to have a
random drug policy for high school athletes is the conflict between the fights
of individuals and the right of the state to maintain order. Usually, the compelling
state interest will prevail through jurists' interpretations, on the theory
that the community good is the context in which the individual ultimately exercises
his or her rights. Therefore, it takes precedence.
Historical Background
It is not surprising that public schools have been asked to address the problem
of drug and alcohol abuse. Historically, education has always been viewed as
a means to address societal problems. As America became industrialized in the
1830's, large urban centers developed, which led to urban decay, social unrest,
and political instability. This was believed to be the result of having uneducated,
unsocialized newcomers flocking to the cities, whose "licentious, immoral ,and
irresponsible behaviors" led to the cities decline. Moral reformers wanted them
to be educated, or socialized, to become upright citizens (Perkinson, 1995).
School reformers of the 19th century believed that public schools would be more
responsive to the public, and by putting education in the hands of the "public,"
reformers put control of education into the hands of those with the most political
power. Those with the most influence would decide what public education was
for, and as the "influentials" saw it, public schools were a panacea for all
the ills of society: the public schools would solve all of America's social,
economic, and political problems (Perkinson, 1995).
"The notion that the school is a panacea for all of society's problems carries
with it the assumption that people are the root of every social problem: they
have to be changed (socialized);never the existing arrangements, never the system."
When education is viewed as a socialization process, a matter of changing, shaping,
molding, processing people to some predetermined end or goal, education becomes
an authoritarian transaction. If schools could do this, then any, or all, of
society's problems could be solved through education (Perkinson, 1995).
History illustrates that public education cannot cure the ills of our society.
Nevertheless, it is continually called upon to correct social ills like drug
and alcohol abuse through a socialization process. In the case of athletes and
random urinalysis, the carrot, interscholastic athletic participation, is being
traded for their right to privacy. It is important to remember that there is
not any individualized suspicion, just disorder in the school being attributed
to drug and alcohol abuse, primarily by athletes.
Individual Rights vs. Benefit Maximization
The "fundamental rights" of individuals and the "compelling interests of the
state" translate into the moral principles of equal respect of persons and benefit
maximization respectively. These two principles are not mutually exclusive,
as illustrated in the Courts opinion explained earlier,"individuals enjoy their
rights through the community," therefore, in this interpretation, one principle
is dependent upon the other.
The principle of equal respect requires that we act in ways that respect the
equal worth of people as moral agents, i.e., people have intrinsic worth. It
requires us to treat people as ends rather than as means to accomplish our goals;
To view people as free and rational moral agents, respecting their freedom of
choice, enabling them to decide responsibly through education. And, it requires
that we view people as being of equal value, that they have the same basic rights.
Theorists who are guided by this principle are known as nonconsequentialists.
They are not totally unaware of the importance of the consequences of a decision,
they are just more interested in the dignity of the person than the consequences
of a decision. In regards to random drug testing for high school athletes to
participate in athletics, they would not support such policy, even though it
may produce the best results for the individual, the school, and for society,because
such a policy does not put the dignity of the student first (Strike, 1998).
The principle of benefit maximization argues for a decision that results in
the most good or the greatest benefit for the most people. Theorists guided
by this principle emphasize the consequences of a decision over individual dignity
or rights. These ethical theories are known as consequentialist theories. Once
we know what is good, the best decision is the one that maximizes good outcomes
(Strike, 1998).
Consequentialist ethical theorists would want the random drug testing policy
if it was known to work, to be a good means of reducing social disorder in the
school and helping to prevent a student from becoming involved with drugs or
alcohol. However, as Strike points out, "it is important to recognize that the
principle of benefit maximization will justify any exchange between the welfare
of one group and the welfare of others so long as the average welfare increases.
It appears that any human right might be threatened if its denial leads to an
increase in the average welfare" (Strike, 1998).
Compensating Behavior
What are the costs and benefits of a random drug testing policy for athletic
participation? The benefits seem obvious: the logical consequence of a random
test of this nature, a reduction in drug/ alcohol abuse amongst school athletes.
However, Taylor argues, that the "overall student drug use may fall or rise
after the imposition of testing, and any reduction achieved will likely be smaller
than expected." His largely theoretical argument is structured on the "compensating
behavior" model, in which individual responses to a government regulation diminish
or even reverse the regulation's intended effect (Taylor, 1997).
Taylor presents two assumptions which must hold in order for compensating behavior
to be an issue in the decision to drug test high school athletes. First, drug
usage by nonathletes and ex-athletes must exceed athletes drug usage. Second,
the costs of athletic participation must have an impact on the rate of athletic
participation. The effects of these two assumptions, that increasing the cost
of being an athlete by imposing drug testing will reduce athletic participation
and that ex-athletes will revert to the higher drug use levels of the nonathlete
peers, guarantees some degree of compensating behavior.
Taylor's main point is that school administrators should not automatically assume
that a random drug testing policy will achieve its intended benefit, and they
should examine the policies' initial effects. If athletic participation rates
decrease, then administrators should try to determine the impact of this change
on overall drug use and consider alternative approaches (Taylor, 1997).
Are there any other costs besides the intended benefit, which has the very real
potential of becoming a cost. There are two types of errors possible with drug
testing: the false positive (identifying a nonuser as a user), and the false
negative (failing to identify a user). The possibility of being identified as
a user when you are not may inhibit participation even further. Families may
even move to a district where there isn't any random drug testing to avoid this
possibility. A user would definitely consider both of the aforementioned options.
Another very real cost to school districts is the actual financial cost of the
tests. The standard drug screen test costs $20 to $30, and a steroids test costs
$100. These financial costs are more of a barrier to most school districts than
legal, constitutional considerations in adopting random drug testing policies
(Dohrmann 1996).
What Rights Do Students Have?
The crucial question is, 'When is it permissible to violate a person's rights
in order to produce a better outcome?" And when dealing with high school students,
do their rights desert them when they enter the school building? The Supreme
Court decided in Tinker v. Des Moines School District(1969), that students
do not leave their rights at the school house door.
This case involved freedom of speech, as Tinker and other students were suspended for wearing black armbands to publicize their objections to the U.S. involvement in the hostilities in Vietnam. Mr. Justice Fortas, writing for the majority, included the following in the Court's opinion:
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are 'persons' under our constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views (Fischer 1999).
Since school students have constitutional rights, should their right to privacy
become secondary to policies attempting to ensure school safety by curtailing
drug and alcohol abuse? Is there a way to reasonably distinguish between the
public and private spheres?The following moral principle is presented by Strike,
"People can be held accountable by others only for those actions that harm others.
They cannot be denied the freedom to perform those actions that affect only
their own welfare."
John Stewart Mill provides the following; 'People are entitled to complete
freedom in the private sphere, but they might beheld accountable to others in
the public sphere." 'Deciding what is public and what is private is not, therefore,
simply a matter of deciding whether an action has an effect on an important
interest of the school or of deciding if it might do some harm. It is, instead,
a matter of weighing the importance of the kind of privacy involved against
the public interest threatened" (Strike, 1998).
In the Veronica SD case, the district made the argument that drug and alcohol
abuse,primarily by athletes, was causing disciplinary problems in the school,
creating an unsafe situation. Under these circumstances, would Mill say that
the students of this school have surrendered their privacy rights due to the
public impact their private acts created? Does the moral principle provided
by Strike also apply? Taking the school's testimony at face value, I would have
to say that the athletes have done exactly that, thus their private act must
be regulated by school officials through the use of a random drug testing policy.
However, in proceedings such as this, there is not always agreement on the facts.
"If there isn't factual agreement, the controversy may remain irresolvable because
agreement on the facts cannot be reached. This is especially true for moral
disputes, because they often rest on questions of authority such as, "Who or
what is to determine right or wrong?" (Clabaugh, 1997).
The Supreme Court is recognized as the source of authority in the case I cited,
and any other cases that the Court accepts. The majority determined from the
testimony provided that the private acts committed by the athletes interfered
with the public good of the school, thus they upheld the policy. But, isn't
it possible for any private act to be manipulated in this fashion, therefore,
all acts could be considered public? M. Glenn Abernathy, author of, "Civil Liberties
Under the Constitution," provides an alternative view of the right of privacy,
and explains how the Court's view leads to the possibility of private acts being
considered public.
"The Supreme Court would be more accurate to refer to the right of privacy as a right of personal liberty under the due-process clause of the Fifth and Fourteenth Amendments, however, it has not been established that way, instead,although considered a fundamental right, the right of privacy was given a contextual definition in which it was dependent on a relationship an individual was in. In other words, the right of privacy was not seen as attaching to an individual irrespective of circumstances, as might be supposed of fundamental right" (Abernathy, 1974).
The contextual factors, the situation at each individual school, are the factors
a court would examine in determining whether a random drug policy for athletes
was constitutional. In the Veronica SD case, the Supreme Court determined that
the right to privacy was not being violated due to the circumstances present
at the school.
Aspects of the concept of due process are also applicable to this controversy
from an ethical and legal standpoint. Tinker v. Des Moines establishes that
students have due process rights. Ethically, due process is concerned with the
fairness of the process used to reach a decision, rather than the decision itself
Rationality is a core concept of due process, it requires logical, analytic
thought. It requires that both sides be treated equally and that all appropriate
evidence be heard in a case. Informing people how they will be evaluated, giving
them notice, is another aspect of due process, as is the requirement that standards
be consistently applied. Due process also requires that decisions be made on
the basis of reasonable evidence and that procedures be followed that make such
evidence available on a systematic basis. Finally, that the standards that are
used to judge people or their work must have a rational connection to a legitimate
purpose (Strike, 1998).
The Issue of Fairness
The fairness issue is important when a school district is considering such
a policy, and when a school policy is passed requiring that the athletes submit
to random drug testing in order to participate in athletics. It is incumbent
upon the district to make all athletes aware of how they will be evaluated.
What type of test it is, and the validity and reliability of the test should
be provided, as should the score for determining that there is a positive result.
When these conditions are met, notice has been given. This must be an ongoing
effort, due to the fact that we have such a mobile population. If the process
for establishing the policy is not rational, and the process of the random drug
test itself is not rational, then the individuals to be tested have not been
treated fairly, they have been denied a fundamental right of our democratic
society. The courts would not support a school district policy that was enacted
in an arbitrary fashion, or enforced in a capricious manner. Neither could an
ethical school administrator who is just as concerned with the process, the
means, as the end result, a reduction in drug and alcohol abuse for students.
It is important for school administrators to be aware of these procedural antecedents
for fairness. Strike argues that making decisions with due process in mind is
the same as treating people reasonably. If appropriate procedural rules were
followed by the school in establishing the random drug testing policy and upholding
it, then due process rights have not been denied and the students have been
treated fairly. Ethical and legal considerations have been met when a school
district follows these procedural guidelines. Respect for the individual, and
their rights of privacy have not been abridged capriciously or arbitrarily.
Circumstances play a vital role in balancing respect for the individual with
the common good of the community. Neither principle or right is absolute. The
details of a school's situation are significant, and if the evidence warrants
a random drug testing policy, I would suggest one to a school board. However,
I would emphasize the importance of monitoring the immediate effects of the
policy, as suggested by Taylor. A rational, logical decision must be made framed
by both ethical principles and the circumstances relevant to the controversy
under investigation.