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Random invasion of privacy

If middle school students are athletes, then it's perfectly reasonable to suspend their constitutional rights. That's the illogical and unfair premise the Supreme Court used this week in dismissing complaints against a random drug-testing program in Oregon.

The program allows public school officials to require student athletes to submit to random urinalysis as a condition of being allowed to play interscholastic sports. The shaky logic of Justice Antonin Scalia _ and the five justices who agreed with his opinion _ in upholding this unjustifiable breach of privacy is thus:

Students, especially student athletes, have lower expectations of privacy than adults do. "School sports are not for the bashful," Scalia wrote, adding that communal showers and locker rooms "are not notable for the privacy they afford." And when students tryout for sports, they willingly subject themselves to more regulation than non-athletes do.

Scalia cautioned that his opinion is not intended to open the door to random drug testing in other contexts, but the distinction between student-athletes and other students is a tenuous one. The courts previously have upheld the constitutionality of random drug testing of airline pilots, bus drivers and other workers who are responsible for public safety, but should a similar exception to the normal standard of probable cause be made for preteen football players?

This case began in 1991 in Vernonia, Ore., where seventh-grader James Acton tried out for the football team but was not allowed to play because his parents would not consent to the school's random drug testing. There had been no suspicion that James used drugs.

Simply because a youngster wants to play football is no reason he should have to be subjected to "an intrusive bodily search," Justice Sandra Day O'Connor wrote in her dissenting opinion, which was joined by Justices John Paul Stevens and David H. Souter. "For most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment," O'Connor wrote.

Unfortunately, the Rehnquist court has been gradually eroding that historic protection. Scalia's opinion is another large step toward rendering the Fourth Amendment all but meaningless.

Though the rate of drug abuse among teenagers is cause for alarm, it is far more alarming that six justices see the war on drugs as sufficient reason to disregard the Fourth Amendment. When a majority of the court can invent a distinction that exempts seventh-grade student-athletes from basic constitutional protections, what is to prevent them from inventing similar pretexts to take away everyone else's rights, too?