Finding Drugs, Losing Rights

Lying on the ironing-board flatness of Texas's High Plains, Lockney, Texas, is about as far removed from inner-city gangs and violence as is possible to get in the lower forty-eight. The nearest city with an airport, Lubbock, is, as the song says, a place best observed from a rear view mirror. Not much happens in these parts. That's the way most people want it. Populated with deeply religious people who like their religion like they like their barbecue sauce--fiery and covering everything--the west Texas Panhandle is one of the last notches on the Bible Belt.

One would not think that in such a community there would be difficulty in keeping children in line. But the overwhelming majority of parents in Lockney do not believe that they are up to the task and want the government to find out if their kids are druggies. In spite of there being no evidence of significant juvenile drug use in the town, a cloud of suspicion hangs heavy over students in grades six through 12 in Lockney Independent School District. Believing that the best way to combat teenage drug use is to force every kid to pee in a cup to prove he or she does not use drugs, the school board passed a policy in which all students, not just those involved in athletics, would be required to "volunteer" to take a random drug test. If their parents do not give their permission, the student is treated as if he or she had tested positive for drugs. The penalty for testing positive is three days of in-school suspension and missing all extracurricular activities for 21 days.

Most of the town overwhelmingly approves the new policy, including most of the students. After all, "why should you care if you don't have anything to hide?" One man, Larry Tannahill, did not have anything to hide--but he did care. He refused to give permission for his 12-year-old son to be tested. Tannahill's reasoning is eloquent in its simplicity: "Too many of our rights have been taken away. You just have to put your foot down somewhere." For acting on this simple statement of faith in the Bill of Rights the Tannahill family has become the target of communal outrage, including physical threats, and Tannahill has since lost his job (although his employer claims it was not related to his position on drug testing).

The basic legal issue is straightforward and simple. Does the Fourth Amendment's prohibition against unreasonable searches and seizures trump the all but unanimous community desire to test its children for drugs? The American Civil Liberties Union, representing Tannahill and his son, will soon test the question of how far the government can go in overriding traditional constitutional restraints in its quest for a "drug-free America."

No one really questions the motives of the school board. They want to insure that the ravages of drugs do not reach their children, the most vulnerable part of their community. But pureness of motive cannot be the touchstone for deciding when to undermine fundamental liberties. With the purest of motives bands of vulgarity vigilantes strip bookshelves of some of the world's greatest literature. With the purest of motives we imprisoned American citizens of Japanese ancestry during World War II. Pure motives that destroy fundamental liberties lead us down a short road to chaos.

In the play "A Man For All Seasons," Thomas More's son-in-law tells More that he would cut down all the laws in England to get the devil. More replies that he would give the devil himself the benefit of law for his own safety's sake--for after the laws were felled, nothing could withstand the winds that would howl, there being no place left to hide. The greatest casualty in the war on drugs has been chipping away of the forest of laws that represent our civil liberties. And no liberty has been pinched tighter than that against unreasonable searches and seizures.

This liberty interest, implicating personal privacy as it does, is designed to protect the worth and dignity of each human, to create a zone into which the government may not enter without good and proper cause. It runs counter to our notion of decency and fair play that any person should be taken aside and searched without probable cause of some wrongdoing, but random drug testing is a search based upon presupposed guilt without any suspicion, much less probable cause.

Would we be safer if police had plenipotentiary powers? Certainly we would curb more crime if police could wander through our homes looking in closets and drawers or stopping and searching any person or car they chose. But the genius of American liberty is the recognition that public safety is not always the highest civic goal, and it may come at too high a price.

Larry Tannahill and others who oppose the abuses of liberty in the name of public safety remind us that the individual ought to be the most valued component of society. It is not a question of individual selfishness thwarting the will of the majority, but of individual worth being recognized and respected as foundation of our culture. Ultimately the price of keeping government at a respectful distance is not too high, but the price of failing to do so is the loss of our political soul.

Joseph L. Jacobson is legal director of the American Civil Liberties Union of Texas.