In a ground-breaking move, the California Senate voted Tuesday to ban the random drug testing of students in the state's public schools. If the bill is passed in the Assembly and signed into law by Republican Gov. Arnold Schwarzenegger, California would become the first state in the nation to explicitly bar suspicionless testing of students. Such a move would be a direct rebuke to efforts by President Bush and drug czar John Walters to expand the use of student drug testing as part of their war on drugs. In his State of the Union speech in January, President Bush called for expanded federal spending to support school districts that want to embark on drug testing programs.

The bill, sponsored in the Senate by Sen. John Vasconcellos (D-Santa Clara), would bar drug testing unless school officials reasonably suspected a student of illegal drug or alcohol use "in the school environment." That suspicion would have to be based on "articulable facts," not gossip, rumor, or social factors, such as race, class, gender, sexual orientation, or having friends or family members who use drugs.

The bill would also require school authorities to try to obtain written consent from a student's parents before ordering a student to take a drug test. And it would require schools to refer students who test positive to counseling. The bill would not bar school districts from suspending or expelling students who are found to have used drugs.

According to the office of the state's legislative analyst, roughly 15% of California school districts have enacted student drug testing programs. According to a national survey cited by the legislative analysts, 13% of schools nationwide have a drug testing program, with a majority of those limited to testing student athletes or students participating in extracurricular activities.

In separate rulings in recent years, the US Supreme Court has upheld the right of school districts to conduct random, suspicionless drug tests on student athletes and students involved in extracurricular activities. Although the court has not explicitly okayed the random drug testing of all students -- just certain classes of students -- the Bush administration reads those decisions as implying that testing all students would be constitutional.

The bill was largely the brainchild of the Drug Policy Alliance (http://www.drugpolicy.org), said Glenn Backes, the group's Oakland-based health policy director. "We sponsored the bill in sponsorship with the California state PTA," he told DRCNet. "But we made it happen. We know who the good legislators are and how to bring it to them. We salute Sen. Vasconcellos for being out in front on yet another drug policy issue."

And while the bill passed the Senate on a 26-10 vote, it wasn't exactly a cakewalk, said Backes. "There were bumps along the way. This is a new issue for most legislators, but what we found was that a lot of folks in both parties are adamantly opposed to random drug testing," he explained. "The trick was crafting a bill that respects the needs of schools to promote safety and security while at the same time banning this wasteful and insulting product called random drug testing. One big issue was local control. The legislature had to decide if telling school districts they couldn't do this even if they got money from Bush was an appropriate use of legislative power."

Indeed, the issue of local control prodded the California School Board Association to oppose the bill. The association said it feared the bill would tie the hands of districts that wanted to institute random drug testing of students. Other than a group called Responsible Citizens, Inc., a "family values" organization, which warned that if the bill were passed "it will invite large numbers of pupils to abuse illegal drugs, steroids, inhalant and others by lowering the risk of being caught," the school board association was the only organized opposition to the bill.

Along with the California PTA, the bill was also supported by the Mendocino County Office of Education. "I'm not against drug testing per se, but I supported the bill because of the ban on arbitrary random drug testing," said county education office Superintendent Paul Tichinen. "You just can't do random drug testing; the research shows it is neither productive nor beneficial," he told DRCNet. "We need criteria to establish probable cause, so that we are not randomly testing every single athlete or every single student council member."

Under the bill, said Tichinen, positive test results would be shared with parents and the school, but not with police for punitive enforcement purposes. "The question is what can we do to mitigate the substance abuse problem," he said. "With a positive test, the school would need to refer the student and his parents to a student study team, which is where you bring together students and parents and teachers and counselors to try to find out what is going on."

California has a "zero-tolerance" law that demands expulsion for drug sales, weapons possession, or acts of violence within the schools, but that need not conflict with the bill barring random drug tests, said Tichinen. "Individual schools do have zero-tolerance, but many districts will suspend the suspension or expulsion and instead will attempt to work with the student through a student study team."

While the conventional wisdom is that Democrats are more amenable to such bills than Republicans, opposition to random drug testing crossed the partisan divide. During debate on the bill, rock-ribbed conservatives such as Sen. Sam Aanestad (R-Grass Valley) stood on principle to support the measure. "How many of you folks in this room would submit to random drug testing if that's what this bill did?" asked Aanestad. "I would not. I can't think of anything that would be more repulsive to the conservative philosophy of the Republican Party."

"We reached out to conservatives as well as liberals," said DPA's Backes. That strategy could lay the groundwork for getting the bill through the Assembly, he said. "Having picked up a majority of Democratic votes and a handful of respected conservatives, we have traction to talk about this issue and to work our strategy of conversing across the ideological spectrum. It has been a process of trial and error," he conceded.

But Backes said time and momentum were on the bill's side. "We think we can get this passed this year. The session is not over until August, so we have some time. And while the Assembly can be more difficult to move a bill in than the Senate, we already have leaders from both parties signed on to this in the Assembly. It feels like the momentum is gathering."

Read the drug testing bill, SB1386, online at:
http://info.sen.ca.gov/cgi-bin/postquery?bill_number=sb_1386&sess=CUR&house=B&site=sen

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