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Refusal to agree with school's drug policy is costly to student

Published March 11. 2011 05:00PM

Twelfth-grade Panther Valley honors student Jeremy Thomas serves as S2 Security in the school's Junior Reserve Officer Training Corps. He's active in his church and is a candidate for the rank of Eagle Scout, and is considering a career in the military. He was looking forward to playing on his school's golf team, working on the yearbook, joining the Recycling Club and going to the prom.

But Thomas, 18, was forced off the golf team in September, and won't be allowed to participate in the other activities.

Thomas has been barred from the activities because he refuses to agree to the school district's drug testing policy, which permits the school to "demand that he produce a urine sample for drug screening at any time throughout the school year," according to a lawsuit filed Wednesday by the American Civil Liberties Union in Carbon County Court.

The suit, which asks the court to halt the policy, was brought by Thomas and his younger sister, identified in the suit by her initials, M.T., and their parents, Morgan and Donna Thomas. M.T., a ninth-grade student, also is active in JROTC, plays the clarinet and would like to join the basketball team. But to do that, she would have to comply with the drug testing policy.

The 9-page lawsuit seeks to stop the "policy that require(s) students as young as sixth grade to submit to random, suspicionless urinalysis drug and alcohol testing in order to participate in athletics or extracurricular activities through school or to maintain a school parking pass, in direct contravention of Pennsylvania Supreme Court and the privacy protections of the Constitution of the Commonwealth of Pennsylvania."

M.T. and Jeremy Thomas have been barred from participating in school activities because they have refused to "consent to this unconstitutional invasion of privacy, and their parents are entitled to an injunction against the district's continued enforcement of its unconstitutional drug testing policy," the suit says.

School Superintendent Rosemary Porembo declined to comment on the suit.

The school district adopted the policy by a 5-4 vote on Aug. 26, after the school year had begun, the suit says. It provides for three kinds of drug and alcohol testing: random mandatory testing, voluntary testing and reasonable suspicion testing. The complaint concerns only the random testing. Students and their parents must sign a form agreeing to the policy in order to participate in extracurricular activities. The form authorizes the results of the tests to be distributed to the principal, athletic director, head coaches and activities advisers and members of the district's Student Assistance Program.

Students called for testing must disclose all medications they have taken in the previous 30 days.

Violations of the policy refusing to give a urine sample or being unable to produce one after two-and-a-half hours in the testing area or having urine that tests positive for drugs or alcohol, results in a referral to the Student Assistance Program, suspensions from all covered activities and privileges, searches of the student's property and continued drug screening.

At a public meeting on Sept. 23, school board members responded to two parents who challenged the policy, saying that it had been drafted by the Pennsylvania School Board Association and passed legal muster and has safeguards in place against false-positive test results.

In the suit, the ACLU cites the case of Theodore vs. Delaware Valley School District. In that case, the Pennsylvania Supreme Court ruled that the "balancing of students' privacy rights under Article 1, Section 8 of the Pennsylvania Constitution and school districts' concern for student safety requires that public school drug testing policies must be supported by sufficient evidence of need in order to pass Constitutional muster. Under Theodore, any Pennsylvania school enacting a random drug testing policy must 'make some actual showing of the specific need for the policy and an explanation of its basis for believing that the policy would address that need'," the suit says.

According to the suit, Panther Valley did not analyze drug and alcohol use by students in sixth through 12th grades who are involved in school activities before adopting the policy, nor did it study the efficacy of a random testing policy as a way to address any such problems.

Further it singles out students who are involved in activities, despite the fact that participation in activities decreases the likelihood that a student will abuse drugs or alcohol, the suit says.

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