Case Fuels Drug-Testing Furor : Colorado Court Helps Draw Acceptable Parameters

David Derdeyn is a carpenter living in Hollywood, but perhaps someday he will be considered one of the architects of an acceptable drug-testing program in intercollegiate athletics.

Derdeyn, a one-time distance runner at Colorado, is the latest to challenge the constitutionality of a university’s drug program.

In August, a district judge in Boulder, Colo., declared Colorado’s program a violation of rights of privacy as well as an unlawful form of search and seizure.

The university was ordered to discontinue its two-pronged administration of random rapid-eye exams and collection of urine specimens.

Although it sent reverberations throughout the state, the ruling was simply another bump on the legal road of drug testing. It was not the first such challenge, nor experts agree, will it be the last.

But when a case such as Colorado’s is heard, the thorny issues are hotly debated.

“I think any kind of random testing where you take a group of people and just test them, and ask them to prove they are innocent of drug abuse is unconstitutional,” said Derdeyn, who earned a degree in art after serving in the U.S. Army in West Germany. “Just because someone is playing college football (or running) does not necessarily mean they are on drugs.”

Derdeyn, 31, said he encountered the drug program as a walk-on runner in the spring of 1986. By the time cross-country season approached later that year, he had asked the American Civil Liberties Union to file a suit on his behalf.

Derdeyn maintains that the Boulder athletes are much less receptive to drugs than most at a school they call “Ski U.” because of its party atmosphere.

“I’ve seen drug abuse up close,” he said of experience in the army. “Athletes are way below normal. I thought my former teammates were great kids, but straight arrows almost to the point of being dull.”

Nonetheless, Colorado officials ranging from Gov. Roy Romer to university coaches have criticized the ruling.

“The decision is discouraging,” said Bill McCartney, football coach. “I’m worried about our players experimenting and sampling now. There is tremendous pressure on this campus to do it.

“What is the best interest of the student-athlete? I was so sure the judge would look at our program and say, ‘That’s the way it should be across the nation.’ It’s unacceptable, what he ruled. It’s incomprehensible.”

Whether the ruling is comprehensible is a matter of perspective.

For Derdeyn, as for Stanford diver Simone LeVant, whose 1987 challenge in Santa Clara County Superior Court forced the National Collegiate Athletic Assn. to cease postseason testing of Cardinal athletes, drug testing is an intrusion.

For many coaches, administrators and NCAA officials, drug testing is a necessary inconvenience to ensure a fair playing field and preserve the image of their institutions.

And where shall the twain meet?

“The NCAA wants to give the impression it’s attempting to do something because it doesn’t want drugs to affect its image,” LeVant once said. “People seem to think that if you’re not for drug testing, then you must be for drugs.”

Said John Mason, a Washington attorney regarded as a constitutional expert on testing in the workplace: “I am a believer that people who are members of certain populations, I certainly include college football among them, ought to present themselves as drug free.

“If you want to play college football, given the importance of that to the university, the revenues involved, the prestige to the university, you’re going to have to be clean.”

Ed Chen, of the Northern California chapter of the ACLU, argued in the Stanford case that athletes are no different from everyday employees. Although Chen received a favorable ruling, one that an appellate court will review sometime early next year, the judge allowed the NCAA to test Stanford players in men’s basketball and football. The reason: Those sports had accounted for all 34 positives of the 3,511 athletes the NCAA had tested nationwide.

The question remains, however, should athletes be treated different from other students?

Glen Mason, football coach at Kansas, thinks so. He said that when a football player in Lawrence, Kan., tests positive, he becomes front-page news. The message is clear: Athletes often are public figures, particularly in such college towns as Norman, Okla., or College Station, Tex.

Whether athletes’ status will someday be better defined is unknown. Mason, the Washington attorney who formerly was general counsel for the Federal Railroad Administration, expects the constitutional issues to be clarified within five years.

The Supreme Court has not molded concrete parameters on testing in the workplace except in specialized cases such as with railroad workers after accidents.

The court has said that a compelling interest in the safety of lives or national security must be shown before it will allow infringements on basic freedoms.

Following that lead, the Boulder court said of the university’s program: “It is only athletic games we are concerned with here.”

Said David Miller, the legal director of the Colorado chapter of the ACLU: “It’s not national security or nuclear security, or in the case of the railroad, life and death circumstances. There’s a large difference.”

Again, perspective.

Carl James, Big Eight commissioner, summarily denounced the Colorado decision because players’ safety was disregarded. He and his Big Eight coaches have a vested interest in Colorado, now the only conference school not testing.

If an anabolic steroid user were to select a program, he might attend Colorado, where his use of those forbidden drugs could continue unbridled, they suggested. McCartney said he will not recruit those who use steroids, derivatives of the male hormone testosterone and purported to increase performance because of its tissue-building components.

Still, without testing, McCartney said he is powerless to stop steroid use, although physical signs of the drugs are easily observed.

“Just because some track guy doesn’t want to take the test, they should still allow football players to take it,” said Jim Walden, Iowa State football coach. “There is nothing like football. Football is the only game where you organize violence. You need strength, speed, and an assassins’ type mentality to succeed.

“So, Buffaloes cannot be allowed to become larger Buffaloes through drugs. Giving them a physical advantage like that is dangerous.”

Merrily Dean Baker, NCAA assistant executive director, said testing was instituted in 1986 for just that reason. But where the courts do not concur, Baker said the NCAA is abiding by each decision. So far, only cases at Washington and Stanford have stopped the institution from testing.

Although the Boulder case did not involve the NCAA and pertains solely to Colorado schools, Baker said her organization is concerned that the ruling could encourage other similar challenges.

“There are so many variables it is difficult for us to sit and postulate what’s going to happen in all 50 states,” she said.

Judith Holland, senior associate athletic director at UCLA, said the Colorado case brings to light that each school must be judged on its own merits. Although most programs are similar, many have built-in intricacies catering to their student body.

Holland believes that the UCLA program offers enough due process to respect individual rights because a Bruin athlete must test positive three times before being punished. At Colorado, first-time offenders are suspended from the team for a calendar year, a facet McCartney says gives the program teeth.

The Boulder court, however, was more concerned with the administration of Colorado’s test than punishment when Judge Joseph Bellipanni criticized the rapid-eye exam.

Although a sidelight to the constitutional issues, the criticism casts a warning to all programs utilizing the eye exam, which judges the size of an eye pupil to determine drug abuse.

Colorado’s rapid-eye exam was instituted by Dr. Forest Tennant, executive director of California Health Projects, Inc., which include two dozen methadone clinics in Fresno, Santa Barbara and the Los Angeles area. Tennant, of West Covina, also is the drug adviser for the National Football League and NASCAR, the professional stock-car racing association.

He has sold some universities on the merits of the rapid-eye test, which is not nearly as expensive as a urinalysis. The test first measures pupil size with a card called a pupilometer. Then, a trainer tests for the pupil’s reaction to light. Next, the eye is observed for involuntary jerking, and finally, a subject is tested for convergence, being able to focus on an object coming toward him.

The rapid-eye exam, which Tennant said he developed, has been widely criticized beyond the courtroom. Toxicologists question its scientific validity, and even John Mason, a staunch supporter of drug testing, called it “tea leaves.”

“Nobody was ever been punished or penalized except by the urinalysis,” Colorado’s McCartney said.

But the Boulder court found that the rapid-eye exam was incorrect in 97% to 98.5% of its cases. The court wrote that the test injected arbitrary judgments into a random selection process, and was used without the slightest probable cause.

Tennant defended his eye test in an interview, saying Colorado trainers did not apply it correctly. He said his instructors, who showed Colorado trainer Dave Burton and his staff in 1986 how it works, might have failed to explain the tests’ finer points. But later, he also said that the test is so simple that anyone can learn how to use it in an hour’s lesson.

“Nobody ever said (the eye test) had the scientific merit the urine test did,” Tennant said. “Nobody said they shouldn’t do urine tests and do eye tests. The eye test is when you don’t have the money or resources to do the urine tests.”

Tennant also said that the eye exam would not be able to detect users who are not tolerant or do not have drugs in their system when the test is administered.

When asked about Colorado’s administration of the exam, Burton said he received a certificate from Tennant stating he was capable of operating the test expertly. He said that he and his trainers had no problems with Tennant’s instruction, but that the rapid-eye exam is not a reliable indicator when testing a population such as athletes, where there is little drug use in the first place.

“For him to say we weren’t doing it properly is not true,” Burton said. “As late as last spring he asked me go out and talk to other schools about it. I think his ideas are sound. He should stand up to the criticism rather than duck it like this.”

Said the ACLU’s Miller: “Forest Tennant has made a lot of money selling a useless tool to a lot of universities. The problem is, colleges have taken the easy way out.”

The opposite could be said of David Derdeyn, who realized the risks in challenging a university. He said that he was never harassed because of his actions and that about 50 athletes, including some football players, told him they supported his efforts. Derdeyn said about five told him they felt drug testing was needed.

Needed or not, testing will not soon disappear. Derdeyn understands this as well as anyone. But he hopes his protests someday will help prevent the system from running unchecked.

And until then, the legal battles will continue.