Teaching Away the Right to Privacy
posted by Dan Filler
I’ve never liked the Supreme Court’s Vernonia School District line of cases. These decisions authorize public schools to do random drug testing of students participating in extracurricular activities, without the slightest suspicion that the children ever used drugs. You don’t want to be tested for drugs? Don’t do extra-curriculars. Of course, extra-curricular activities are important in many ways, not least in terms of college applications. For many kids, then, there is little choice but to submit to these searches.
Schools seem to have taken up the Court’s offer. I haven’t found hard data on the number of schools using random drug tests but locally – in the Birmingham area – I know the “top three” school districts (judged by test scores and affluence) have such programs. (And two of the three test for tobacco use, in addition to drugs and booze.)
Why don’t I like these schemes? A few reasons. The first one is related to the right of privacy. I don’t think the government should be in the business of searching people in any fashion – let alone sorting through their urine – without suspicion of misconduct. Although I’m not fond of other suspicionless searches the Court has authorized – for example, railroad employess may be tested after a rail accident – at least these testing programs have a narrower scope. Any policy that samples every child in extra-curricular activities – that is, the vast majority of students in these high powered schools – comes awfully close to imposing universal testing.
There are other reasons I don’t like these policies. I think they reflect outsourcing of parental responsibility. You want to test your kid for drugs? Go ahead. But it’s inappropriate for a school to impose these intrusions on all children, including those whose parents don’t buy into a surveillance-as-parenting approach. (Parents can decline to have their kids tested, in most districts, but the children still don’t get to be on the debate team.) I’m also not confident that random testing works – though I’m less certain on this point.
Watching the privacy debates of the last few weeks – domestic spying, Google subpoenas, etc – I’ve come upon yet another reason to dislike Vernonia. I suspect that suspicionless testing programs train children to believe they don’t have a right to personal privacy.
Schools are in the business of teaching, signaling, and modeling social rules and values. These testing regimes convey an important civics lesson, and tell students something about the role of privacy in American law and culture. I worry that, as a result, more and more children graduate from high school with no sense that the Constitution explicitly and implicitly protects individuals from searches by the government. Based on personal experience, they may concluded that there is no right to privacy.
I wonder if this next generation will take less offense at warrantless domestic wiretapping or if they’ll be sanguine about the routine tracking of citizens by government. Perhaps they’ll be less concerned about bodily autonomy in other areas. What’s the big deal about abortion regulation, if your body is just another site for governmental regulation?
Time will tell. But as our government reframes American life as a series of never ending wars – drugs, illegal immigration, porn, terrorism – schools seem to be reframing privacy as hopelessly out of date.
UPDATE: I have changed my spelling of Vernonia. I have also attempted to reprogram my brain which believes the case is called “Veronia.”