PERSPECTIVE ON DRUG LAW : Sister Emerentia Has the Last Word : The Supreme Court’s approval of mass drug testing for students merits an epithet on a classroom chalkboard.

Among my most vivid memories of being a seventh-grader at St. Alphonsus School in Greendale, Wisc., in 1954 is the day one of our classmates wrote an uncomplimentary epithet about Sister Emerentia on the chalkboard. Sister Emerentia announced that the entire class would be detained after school until the culprit who wrote the offending words was identified. Although I had not yet learned that the Fourth Amendment forbids mass detention (that didn’t come until eighth grade), I instinctively recognized that a grave injustice was being perpetrated. Rather than the most obvious suspects (those who could spell fascist ) being singled out, the entire class was losing its liberty because of the misdeeds of one individual.

The Fourth Amendment wouldn’t have done me much good, anyway, since it doesn’t apply to parochial schools. But the injustice of blanket punishment seemed so fundamental, and rankled so deeply, that it didn’t hang on the words of a particular constitutional amendment.

Those memories came flooding back on Monday as I read the opinion of the U.S. Supreme Court in Vernonia School Board vs. James Acton. Sister Emerentia delivered the majority opinion, boldly parading as Justice Antonin Scalia. She declared that since a few glassy-eyed students who play sports had been disrupting the class, all of the students who wanted to play sports would have to march off to the bathroom and pee in a bottle while she watched so they could be tested for drugs. They would also have to disclose whether they were taking any prescription medications.

The justification, or “compelling state interest,” for this intrusion was the need to deter drug use by our nation’s rebellious schoolchildren--and not just those in Vernonia, Ore. While the Constitution protects schoolchildren, even rebellious ones, the “special needs” that exist in the context of public schools justifies dispensing with the Fourth Amendment’s requirement of individualized suspicion for a detention or search to be lawful. After all, the state is responsible for the health and welfare of all the children consigned to its custody in the schoolhouse. And it’s not as if the kids were being required to disrobe or empty their pockets. The boys were allowed to turn their backs while they provided their urine sample; the girls were permitted to use a booth. Anyway, the court said, students who play school sports have a “reduced expectation of privacy”: They see one another naked in the showers and use toilet stalls without doors; why should it bother them to give a urine sample to a teacher, or tell her whether they’re taking birth control pills?

James Acton, one of the seventh-graders who wanted to play football in Vernonia, had the courage to object. He couldn’t understand why he had to pee in a bottle to prove his innocence just because some other kids were causing problems by taking drugs. But he’s only a kid and doesn’t realize how difficult it would be for school authorities to sort out which kids are causing problems and which aren’t. Teachers would have to be specially trained to recognize the signs of drug use. (Example: A student was dancing and singing at the top of his voice in the back of a Vernonia classroom. His teacher demanded an explanation and he replied, “I’m just high on life.”) Rather than going after the troublemakers, it’s much more efficient to make everyone pee in a bottle. Then no one is singled out, and pretty soon peeing in a bottle becomes just another routine, like walking through a metal detector at the airport.

James did, however, have a friend in court--three friends, in fact. Justices Sandra Day O’Connor, David Souter and John Paul Stevens agreed with the kid. They noted how rarely in the past the court had found a government need compelling enough to justify blanket searches or mass detentions without individualized suspicion. Curiously, one example they left out was when everyone of Japanese ancestry was rounded up and put in detention camps during World War II because it was more efficient and less bother than sorting out which ones were security risks. The bottom line for the Fourth Amendment, O’Connor concluded, is not efficiency. While suspicion-based law enforcement is not as efficient as suspicionless mass enforcement might be, “there is nothing new in the realization that Fourth Amendment protections come with a price.”

Sister Emerentia, speaking for the court majority, had the last word. But, just as my classmates at St. Alphonsus silently nursed a grave injustice in their hearts, the seventh-graders of Vernonia will never understand why they have to pee in a bottle even though school authorities “have no reason to think [they were] taking drugs.” But what do they know about constitutional law? They’re only kids.