By JANN CARSON

Student Drug Testing

We are very disappointed the Oregon Supreme Court refused to grant review of a Court of Appeals decision holding mandatory drug tests of student athletes does not violate the Oregon Constitution’s prohibition against unreasonable searches (Article I, Section 9).

Since 2000, the ACLU Foundation of Oregon has represented Ginelle Weber, Weber v. Oakridge School District, in a challenge to the validity of Oakridge School District’s policy of mandatory drug testing as a requirement for students to participate in school athletics. The policy does not require that the school have any individualized suspicion of drug abuse. Ginelle, a sophomore when the policy was instituted, refused to submit to a drug test believing it violated her right to privacy. Because of her refusal, she was not allowed to continue her participation in volleyball or track & field, two sports in which she excelled.

The U.S. Supreme Court has ruled twice, in ACLU cases originating out of Oregon and Oklahoma, that the Fourth Amendment allows public schools to drug test students as a condition of the student participating in extra curricular activities or sports. The ACLU of Oregon believes the Oregon Constitution does not permit the government to search an individual if there is no suspicion particular to that individual. The Oregon Court of Appeals disagreed. On our behalf, ACLU cooperating attorney Tom Christ represented Ginelle Weber and her family.

Boy Scout Recruitment in Portland Public Schools

In September 2003, the Oregon Supreme Court denied review of the Court of Appeals decision in Powell v. Portland Public School District ("Powell I"). Therefore, the decision of the Court of Appeals stands that Portland Public School District did not violate Article I, Sections 2,3 and 5 of the Oregon Constitution when it allowed the Boy Scouts to recruit elementary school children during school hours. We represent Portland student Remington Powell and his mother who are atheists. In the course of the case we have clearly established that the Boy Scouts prohibit membership by boys who will not "acknowledge a duty to God."

However, the refusal of the state Supreme Court to accept review of the Court of Appeals decision in this case is quite troubling and baffling because the Court of Appeals decision relied upon a discredited 1976 Oregon Supreme Court decision involving the Christian cross on Skinner Butte (public property) in Eugene. The case known as Eugene Sand and Gravel, applied federal analysis to the Oregon Constitution, a practice no longer followed. In fact, the Court of Appeals essentially alluded to the problems with the Eugene Sand and Gravel decision and invited the Oregon Supreme Court to overturn the case. For reasons we do not know, the Oregon Supreme Court did not accept that invitation and left for another day resolution of church/state analysis under the Oregon constitution.

In the meantime, Powell II, our separate challenge continues based on the state law that prohibits religious discrimination in public schools. After a ruling in our favor by Multnomah County Circuit Judge Ellen Rosenblum, the District and the state appealed. The Oregon Court of Appeals heard arguments in the case on December 16 and we hope for a decision in 2004.

When these cases began, Remington Powell was in first grade. He is now in eighth grade. We hope to achieve a final victory before he graduates from high school!

In Powell I, Charlie Hinkle, Andrea Meyer, (now on our staff, but a volunteer when the case began) and Paul Meyer represented the family. Our cooperating attorneys in Powell II have been Charlie Hinkle, Ken Wittenberg and Jeff Brecht.