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July 1, 2019

ACLU Objects to Nicotine Testing in Nebraska School

A Nebraska school district is being challenged by the American Civil Liberties Union for its plan to randomly test students for nicotine. The recently announced policy—which will take effect this fall—has earned major media attention.

Fairbury public schools announced the new nicotine testing policy in a June 19 press release. The school has randomly tested students who participate in extracurricular activities for other drugs for the last three school years. Beginning this fall, Fairbury will add nicotine to the list.

The testing plan was prompted by the recent fad in teenage vaping. “It has been something that has been on our mind for a while because we have seen a drastic increase in students that are vaping,” Fairbury superintendent Stephen Grizzle told the New York Times. “Smoking in general, but vaping seems to be the craze right now.”

School officials in Fairbury say they’ve seen vaping incidents increasing at the school for more than a year. There were seven disciplinary issues with vaping during the 2017-18 school year. Last year the number jumped to 30.

A second offense brings a 45-day suspension from activities and evaluation by a mental health provider.

Fairbury is a town of about 4,000 people, located about 50 miles southwest of Lincoln. The public schools have a single combined junior and senior high school with a 2018-19 enrollment of 383 students in grades 7-12. There are fewer than 1,000 students in the entire district.

The policy applies to kids in school-sanctioned extracurricular activities like clubs, marching band, and sports. Students who participate in activities—65 percent of the student body, according to the district’s press release—agree in advance to random testing, and understand up front the penalties for testing positive.

First offenders miss 10 days of their extracurricular programs and go through an educational program. A second offense brings a 45-day suspension from activities and evaluation by a mental health provider. A third offense earns one year sitting out activities, and a guarantee of drug testing during the next year. Students are never suspended or expelled from school.

Every month during the school year, 20-25 students are randomly chosen for testing. Last year (before nicotine was included in the testing program), just three students failed drug tests. The idea behind such testing is to encourage students to avoid drugs.

“We just believe we’re being proactive and taking positive steps to reduce nicotine use in schools.”

“We are really wanting this to be a preventive, proactive measure,” Superintendent Grizzle told the Times. “We are not wanting to punish kids. We are wanting to give them a reason to say no.”

But the American Civil Liberties Union says it’s not so simple. According to the Lincoln Journal Star, a letter from Nebraska ACLU legal director Amy Miller to the school system outlined several areas of concern:

  • Since tobacco possession by a minor is a misdemeanor that wouldn’t be punished by jail, urine testing isn’t appropriate
  • Students could test positive because of secondhand smoke
  • The policy doesn’t safeguard privacy adequately
  • There is no appeals process
  • Random drug testing has been found to be ineffective
  • The policy discourages participation in extracurricular activities

“Several studies have demonstrated that in districts that have tested for a decade or more, there was no demonstrable change in substance abuse,” the letter said. The Nebraska ACLU has not indicated whether it will bring legal action against the Fairbury schools.

The Supreme Court upheld the right of schools to conduct random drug testing in 2002.

Superintendent Grizzle says the policy was researched by lawyers before being approved. “[The ACLU letter] doesn’t change what we’re proceeding with,” he told the Journal Star. “We just believe we’re being proactive and taking positive steps to reduce nicotine use in schools.”

The Supreme Court upheld the right of schools to conduct random drug testing in 2002. In Board of Education v. Earls, the court specifically said that testing is allowed for “students who participate in competitive, non-athletic extracurricular activities.”

“We want to provide a safe, substance-free school as best we can,” Grizzle told NBC News, “and we’re just hoping that through the implementation of the policy, that we’re helping students make the best decision.”

Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy

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