Drug testing in schools is a controversial matter. There are several high profile Independent schools in Australia that are currently testing their students for illicit drugs such as marijuana, ecstasy and methamphetamine.[1]

The vast majority of schools in Australia are not using drugs testing. The question of a student’s rights in relation to drug testing is not something that should be overlooked.

Those against the tests argue that drug testing is an invasion of privacy and ineffective. Whilst those for it say that the test are there to protect the safety and health of the students.

While there are a number of available methods, urine analysis is the most common used. In the US case [2] it was described (about a male student) as follows:

The student...enters an empty locker room accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a urinal, remaining fully clothed with his back to the monitor, who stands approximately 12 to 15 feet behind the student. Monitors may...watch the student while he produces the sample, and they listen for normal sounds of urination.

In the above case, the US Supreme Court sanctioned the random drug testing of school athletes and students involved in extracurricular activities.  The court reinforced this view by stating that student athletes have a reduced expectation of privacy.[3]

Despite some media coverage there has been very little discussion in Australia of how such measures may impact on the rights of the students.[4]

The issue of consent is of significance to the implementation and in general terms, consent of the student would make a search or sample lawful. The problem that may occur in a schooling context is that the student may not be fully informed about their rights not to consent and have true understanding of the consequences of giving up that right.

There is also the question, as yet untested, whether drug testing constitutes ‘degrading treatment’ as prohibited by Article 37 of the United Nations Convention on the Rights of the Child.[5]

If Australian schools move downs the drug-testing path then the purpose to which the school intends to put the results of such tests may create more problems.

Education is compulsory and is a fundamental right. It is questionable whether a school could justify a suspension or expulsion of a student on the grounds of a failure to consent to a drug test, required as part of that school’s random drug testing policy.[6]

The reliability of drug tests in schools is also being questioned.

Drug use in schools is undoubtedly a problem. However, drug testing techniques, violating student’s rights, are unlikely to solve the underlying causes of the problems and could leave children feeling further disempowered in the school environment.   Education may well be the safest test yet.

National Children’s and Youth Law Centre – for more information on your legal rights check out www.lawsutff.org.au