Mandatory Drug Testing of High School Athletes: Unethical Evaluation, Unethical Policy

Adil E. Shamoo and Jonathan D. Moreno (2004) argue persuasively that the epidemiologic research carried out to evaluate the mandatory drug-testing policy for student athletes is unethical for a variety of reasons: coercion, defects in informed consent, loss of confidentiality, and inequitable selection of subjects. The evaluation mimics the policy itself by recruiting new schools to demand compulsory testing for student athletes and adding control schools and questionnaires. Because the policy and evaluation are so similar, it follows ineluctably that if the epidemiologic research is unethical so is the original policy. Indeed, in our anxiety about drug use and our frustration with our inability to mitigate the problem over the last four decades, we have turned to two counterproductive policies: long incarceration for those involved with drugs, including users and small-time sellers, and coercive drug-testing policy for students engaged in athletics and other extracurricular activities. The long jail sentences are unjust, cruel, and immoral. The mandatory urine testing, said by the U.S. Supreme Court to be "99.94% accurate" (a ludicrous assumption), that has been imposed on student athletes and those in other extracurricular activities is more than coercive and unethical; it is epidemiologically flawed and picks on the wrong groups. Some of the reasoning in the enabling decisions by the Supreme Court is bizarre (Vernonia School District 47J v. Acton, 515 U.S. 646 [1995]; Board of Education of Independent School District No. 92 of Pottawatomie County v. Earles, 535 U.S. 822 [2002]).

Those of us involved in public policy about the drug scene in the United States have noted that two of the major reasons for use are boredom and peer-group pressure (Louria 1968; 1971). That being the case, one recommendation has been to involve young people in extracurricular activities they find exciting and interesting. This lessens boredom and involvement with drug-using peer groups and increases the likelihood that illicit drug use will be ephemeral experimentation rather than intense involvement. Selecting student athletes for testing programs makes no sense at all. No epidemiologic studies were carried out to document the severity of the problem in the test-case Oregon school district. The "evidence" cited by Justices Scalia and Thomas in Acton and Earles is a grossly inadequate underpinning for the decisions.

One could readily predict that student athletes would use fewer illicit drugs and less alcohol than the rest of the student body. Thus, as expected, in the preliminary Oregon evaluation the data showed that the athletes in both treatment and control schools used considerably fewer illegal drugs and considerably less alcohol. So the wrong group was selected. Furthermore, the testing program generated negative attitudes and resulted in significantly greater new use of illicit drugs in the treatment school compared to the control school (Goldberg et al. 2003).

The Constitution of the United States does not guarantee privacy, nor do any amendments to the Constitution. However, the Fourth Amendment embodies language that has been used to protect certain aspects of individual privacy. The Amendment states

the rights of the people to be secure in their persons, houses, papers and effects against unreasonable [emphasis added] searches and seizures shall not be violated and no warrants shall be issued but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

Starting in the 1960s, a series of federal and state court decisions subordinated Fourth Amendment privacy rights of individuals to the perceived needs of the society (Cornish and Louria 1991). To do so, in part, requires circumventing the warrant provision requiring "probable cause," a phrase that legally profoundly restricts invasion of individual privacy. Circumvention has been accomplished in three ways. First, the Court declares that obtaining warrants in certain circumstances is impractical or not required; therefore, probable cause is not required. Second, the...