 | Not Cool in School: Fear and Loathing at High School: |
 the dangers of student drug testing
NORML News Winter 2003
Recent incidents at several New Zealand high schools have raised questions regarding the appropriateness of punitive policies for students regarding illegal drug use, writes Stephen McIntyre.
Kaitaia College has begun a program of testing students for methamphetamine, heroin, and cocaine when they return to school from a period of suspension, even if the reason for suspension is not drug related. Meanwhile a student at James Hargest High School in Invercargill was suspended and then expelled when he admitted to smoking cannabis while waiting for rugby practice to start. The incident took place outside of school hours, off school grounds, and the student in question was out of school uniform at the time.
Invercagill youth advocate and former Southland Youth At Risk committee chairman Bob Simpson has since made a plea for concerned families to force a change in the way the high school deals with problem pupils, calling their handling of the incident "inappropriate".
Even Police seem to agree with Mr. Simpson, saying that had the incident been handled by them rather than the school's Board of Trustees, the student would most likely have received a warning and been allowed to remain at school.
While no responsible adult wants to see minors abusing drugs, (legal or otherwise) the validity of testing, randomly searching, excluding, suspending and expelling students for drugs is highly suspect at best, and extremely harmful, if not downright dangerous, at worst!
In the U.S.A. schools are allowed by law to perform compulsory drug testing for students entering competitive sports and other physical extracurricular activities (such as school band), and even non-active extracurricular activities such as chess club! But a recent article from the New York Times details a study which finds no sign that testing deters students' drug use.
The federally financed study of 76,000 students nationwide finds that drug use is just as common in schools with testing as in those without it. "There really isn`t an impact from drug testing as practiced", says study researcher Dr. Lloyd Johnston "It's the kind of intervention that doesn't win the hearts and minds of children."
The study found that 37 percent of 12th graders in schools with testing said they had used cannabis in the last year, compared with 36 percent in schools that did not. Results for other drugs followed the same pattern: 21 percent of 12th graders in schools with testing said they used drugs like cocaine and heroin, compared with 19 percent from schools without. Given the large numbers of students tested, a difference of one or two percent is statistically insignificant and means the results are essentially identical.
Aside from simply being ineffective then, are there any risks involved with school drug screening? An article from the San Diego Tribune in May this year entitled "Drug testing in schools: can it cause harm?" clearly suggests that the answer to this question is yes.
Part of the rationale behind school drug-testing programmes - here or overseas - is that it will be easier for students to "just say no" and that they will shy away from trying illegal drugs for fear of being caught.
Clearly that's not the case, although screening will definately help deter students who use or who have used drugs from becoming involved in extracurricular activities, and this appears to have a significantly detrimental effect on their future lives. Evidence suggests that those not taking part in such activities are more likely to to leave school early, become pregnant early, join gangs, pursue drug abuse and engage in other risky behaviours.
Another risk of drug screening is alienation from family. An unstable or unsafe home environment is one predictor for adolescent drug abuse. A positive drug test may well cause further deterioration, rather than an improvement, in life at home.
Lastly, compulsory drug screening is an outright invasion of privacy. Even teenagers not involved in drug use say that they feel stress as a direct result of being tested or searched.
To date the complex issue of school drug searches has never been formally decided by a judge in the New Zealand courts, so establishing the exact rights of schools to search pupils for drugs here is still a grey area. According to Youthlaw however (www.youthlaw.co.nz) there are only two situations where it may be lawful for teachers to search for drugs:
1. Where the student consents and agrees to the search. Note that silence (ie. saying nothing rather than saying "no") to a request for the right to search is considered as consent. A student randomly targeted is under no obligation to give consent to a search by school authorities, and not giving consent does not mean that the student can therefore be assumed guilty of possessing drugs.
2. Where the school has a good reason for searching a student, such as strong suspicion that the student is in possession of drugs. The more intrusive the search (ie. strip searching) then the stronger the suspicion must be.
It would not be considered reasonable to search a whole class if the school did not have a good reason to suspect every student in that class of possessing drugs. A reasonable search for drugs would only be one where the school had good reason to think that a particular student had drugs on them, not one where they knew drugs were being brought into the school but had no reason to suspect anyone in particular.
What procedure must a school follow should it want to search for drugs? As pointed out, a search cannot be carried out without consent. If the student is under 16, parental consent is required. If the pupil is over 16 and is capable of making an informed decision then that pupil's consent alone is enough.
A school cannot search its pupils by force. The Education Act bans the use of physical coercion by school staff, and it would be considered criminal assault if they forcibly searched a student or the student's bag or clothing against their will. As explained above, only if the school had reasonable grounds to suspect that the student was in possession of drugs could it be within its rights to seach by force, but it's a grey area and to avoid possible litigation the police would most likely be called in to deal with the matter instead.
Many schools now have a policy of asking the student and the student's parents for consent to search, or asking that parents be present during the search. Only the police have special powers of search when there is reasonable suspicion of a student possessing drugs; and in such cases a police officer does not need consent in order to search a pupil's body, clothing or bag. But it's not up to the school to decide whether or not the police should search a student, only the police can do that, and they would have to invoke Section 18 of the Misuse of Drugs Act first.
More and more Boards of Trustess (BOTs) now allow police to enter their schools to conduct drug searches using sniffer dogs. As long as the search is done with a valid search warrant, then the police and their dogs can legally search everyone and their belongings. If the police come onto school grounds to do a search without a warrant, they can only search individual students and their belongings if each student agrees to it, or if they have reasonable grounds to think that each student has drugs (eg. if the sniffer dog targets a student or the student's bag).
What are the rights of school BOTs in relation to drugs? Section 75 of the Education Act gives them the right to control and manage their schools as they see fit. However, in doing so they must not break any laws, such as the New Zealand Bill of Rights Act or the Human Rights Act. The NZ Bill of Rights Act includes the right to freedom from discrimination, freedom of expression, and freedom from unreasonable search and seizure. The Human Rights Act protects everyone from being discriminated against.
Section 60 of the Education Act allows the Minister of Education to make National Education Guidelines (NEGs). These NEGs are part of every school charter by law, so it is illegal for schools not to follow them. They are also quite general, and so represent a guide - rather than a fixed rule - to school policies and practises. NEGs include:
- Equality of educational quality for ALL New Zealanders, by identifying and removing barriers to achievement; and
- Success in learning for those with special needs by ensuring that those needs are identified and receive appropriate support.
It would be reasonable to argue that expulsion for drug use or possession instigates such a barrier to achievement, while students with problematic drug use issues (ie. ones which clearly affect that student's ability to learn) need support, not stigmatisation from the school they attend.
The NEGs also include National Administration Guidelines (NAGs), of which one standard for BOTs is that it must provide a safe physical and emotional environment for students.
In my informal interviews with Christchurch high school students, only some of whom have used or do use drugs, being subjected to random police searches (which range from sniffer dogs going though assembly, to entire classrooms being lined up in the hallway and frisked) is a frightening and humiliating experience. Clearly such practices are not providing an overall sense of emotional safety for pupils.
Any student who feels that their rights have been breached by a school can ask that their parents meet and discuss the matter with the teacher concerned, the head of department or the principal. If this doesn't resolve things, they can then write a letter of complaint to the BOT. If this then fails to solve the issue, the matter can be taken to a goverment department such as the Ministry of Education, the Commissioner for Children, the Education Review Office, or the Ombudsman.
The decision by Kaitaia College to drug test students returning from suspension has been challenged by Green MP Metiria Turei as unlawful and breaching the Human Rights Act. The grounds for her assertion are discrimination on the basis of disability and the victimisation of students who refuse a test by asserting their human rights. Metiria said that she was concerned that students returning from suspensions would be subjected to a humiliating and degrading drug test regardless of the reasons behind the suspension.
"A student with an undiagnosed learning disability is highly likely to be suspended for behavioural issues such as aggressive or disruptive behaviour. Subjecting children to a drug test on these grounds, regardless of whether or not there is any evidence of drug-use, is potentially an act of discrimination on the basis of disability. In addition a child who asserts their human rights by refusing a test might be the subject of unlawful victimisation if the school declines reinstatement on the grounds of that refusal" she said.
Metiria's call for an independent body to be established to review potentially unlawful decisions to exclude students was described as "nuts" by Education Minister Trevor Mallard. But schools would be wise to investigate their procedures on methods of dealing with drug use in schools (ie. random searches) as well as students suspected of or caught using drugs. I suspect that as more and more parents like myself become aware of their children's rights, moves will likely be taken to legally challenge potentially unlawful measures undertaken by schools who preach and practise an obviously unworkable 'zero tolerance' to drugs.
- Any student who feels that their rights have been breached by a school can ask that their parents meet and discuss the matter with the teacher concerned, the head of department or the principal. If unsatisfied, they can then write a letter of complaint to the BOT. After this, the matter can be taken to a government department such as the Ministry of Education, the Commissioner for Children, the Education Review Office, or the Ombudsman.
- to learn more about why drug testing is a bad idea, see www.drugtestingfails.org
- to learn about your rights at school and with the police, see www.youthlaw.co.nz
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