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Drug testing of high school students, having survived federal constitutional scrutiny, is now under the harsh glare of the New Jersey Constitution’s enhanced right to privacy. Three students, in Joye v. Hunterdon Central Regional High School, A-27-02, seek to void a school policy of random drug testing of students who participate in extracurricular activities or who park on campus. Their lawyer, John Salyer, a staff attorney with the American Civil Liberties Union of New Jersey, argued to the state supreme court Feb. 19 that under Art. I, � 7, of the state constitution, there is a presumption against random testing and that school officials bear the burden of justifying it. Though virtually identical in language to the U.S. Constitution’s Fourth Amendment, the state clause has been broadly construed to afford wider privacy protections. Somerset County Assignment Judge Robert Guterl so applied it in striking down the Hunterdon policy. A divided appellate division disagreed. The majority relied on last year’s U.S. Supreme Court ruling in an Oklahoma case, Bd. of Ed. of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822. Citing evidence of widespread drug use among students nationwide, the Court said the need to deter drug use trumped a student’s limited expectation of privacy. At last week’s arguments, Justice James Coleman Jr. noted that studies have shown there is a “major problem out there” and asked whether teachers and administrators should ignore the problem. Salyer answered, “There’s more than one interest that needs to be balanced. There is the individual’s right against having his privacy intruded upon.” Salyer also said the policy is misguided because it targets students least likely to use drugs. Participating in extracurricular activities is one of the best ways to avoid drug use, he said. A constitutionally acceptable alternative would be to order testing if there is reasonable suspicion of drug use, he said. Hunterdon Central’s lawyer, Kevin Kovacs, contended that the program is a deterrent to drug use and that students know about it beforehand. At least 80 percent of the school’s 2,500 students are subject to the random tests. Any invasion to privacy is minimal, he added, saying school officials went out of their way to keep the tests as confidential as possible. Students who test positive may not participate in extracurricular activities until they complete a drug awareness program, but there is no other punishment and no permanent record is kept. “It’s a deterrent that works,” said Kovacs, a partner at Bedminster’s Purcell, Ries, Shannon, Mulcahy & O’Neill. “It gives students a reason to say no.” Justice Barry Albin asked whether drug testing should be extended into the workplace. No, said Kovacs. “The difference here is that we’re dealing with kids, 15-year-old kids.” “Who are in a formative stage and who can still be saved,” added Justice James Zazzali. “On balance, it’s a very minimal intrusion,” said Kovacs. ” I don’t think this is a slippery slope.”

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