Chief Justice William Rehnquist and Justice Ruth Bader Ginsburg offered two seductive rationales, at a March 28, 1995, oral argument in Veronia School District v Acton, for allowing public schools to require all students who want to play on school sports teams to submit to random testing of their urine for traces of illegal drugs.

Rehnquist’s point was that, at least for student athletes, being required to urinate, into a cup, on demand, with a school official watching and listening from behind, was not much of an invasion of privacy.

"How much privacy is there in a boys locker room, with a bunch of urinals lined up against the wall, and guys walking naked from the shower to the lockers?" Rehnquist asked Thomas Christ, an American Civil liberties Union lawyer representing the parents whose 12-year-old son, James Acton, had been kicked off his school’s football team in 1991. The boy’s offense was not drug use, or even suspected drug use, but rather refusing (with his parents) to consent to the drug testing required by the schools in his Oregon logging town.

Ginsburg’s point was that such random testing seemed more benign than the alternative-which would apparently be constitutional under the Court’s 1985 decision in New Jersey v. T.L O. -of singling out students to be tested for drug use, based on suspicion.

"Isn’t the risk [in a suspicion-based program] that the teacher is going to pick out the kid he doesn’t like?’ Ginsbuig asked. "I frankly would find it much more shameful," added Justice Antonin Scalia, "to be picked out and sent to have a drug test because I’m suspected of using drugs."

These are good points. And the evidence suggests both that student drug abuse is a very serious problem- in Veronia and across the nation-and that random urine testing may well be the most effective deterrent.

But the random-testing program now before the Court also knocks a gaping hole in what’s left of the Fourth Amendment And the arguments by (among others) Solicitor General Drew Days III for upholding mandatory drug testing of would-be student athletes- even over the objections of their parents-have no clear logical stopping point, short of allowing the government to require virtually everyone in the United States to urinate info cups on demand.

The Veronia school district’s claim that its program is ‘voluntary" because students don’t have to play sports is bogus. For a lot of kids, sports are crucial to their school experience, their individual development, their self-image, and (in some cases) their hopes of getting into good colleges. Indeed, in Veronia a substantial majority of all students participate in the sports program.

Nor are the school district and its many amici (including the National School Boards Association) persuasive in stressing the supposedly enhanced risk of injury when drug-abusing students play sports. The record contains little evidence that any student athlete in Veronia ever played under the influence of drugs, and no real evidence that a single injury ever resulted from mixing drugs with sports. Besides, common sense tells as that drug abuse is way, way down the list of likely causes of sports injuries- below bad coaching, carelessness, defective equipment, overaggressiveness, wild pitches, and bad luck, A kid’s risk of being paralyzed playing football under the influence of reefer madness is infinitesimal compared with his risk of being killed driving a car under the influence of alcohol. (The Veronia program does not test student athletes for traces-of alcohol- in their urine, apparently because alcohol dissipates so quickly.)

Supporters of the Veronia program also err in dismissing the intrusion on the student athlete’s privacy as a trivial one. Rehnquist’s locker-room reference diverts attention from the real problem here. It lies less in the indignity of being required to urinate under a teacher’s watchful eye than in what comes next: The state takes the student’s bodily fluid, tests it, and then (perhaps) brands that student a wrongdoer based on the test results alone.

Aside from the ever present risk of error-and false accusations of wrongdoing-such suspicionless testing strains our constitutional traditions by poking the government’s nose into intimate areas based on a presumption that people are guilty until proven innocent.

Part of the balance struck by the framers of the Bill of Rights between the spheres of state power and individual freedom was that, absent probable cause- or at least reasonable suspicion of wrongdoing- people cannot be subjected even to relatively unintrusive searches (of wallets and purses, for example) without the most extraordinary justification, such as the need to keep would-be hijackers from carrying guns onto airplanes.

The Court has already done a lot of damage to this constitutional fabric. If it upholds the Veronia program, it will push us further down the slippery slope toward requiring all students-or at least all those who want to participate in any extracurricular or other non-mandatory school activity-to submit to drug testing.

And if students and their parents have no Fourth Amendment right to refuse to "consent" to such governmental drug-testing programs, why should adults? What basis would there be for striking down, say, laws requiring everyone seeking a driver’s license, or a license to practice law, or a passport, or any other governmental benefit, to "consent" to be tested for drugs whenever the government so demands?

One answer might be that cases, including T.L.O., indicate that the constitutional rights of children are narrower than those of adults. But the logic of those cases is not persuasive where, as in the Veronia case, the child and his parents are all invoking their constitutional rights together, with the parents claiming that the governmental requirement at issue interferes with their efforts to shape the moral development of their child. In this case, for example, James Acton’s father, Wayne, testified that he believed the drug-testing program sent the wrong message to his son by suggesting that, in the government’s eyes, everyone is guilty until proven innocent.

Parental consent: That should be the crux of the decision in this case. The Court should strike down Veronia’s program because it overrides the constitutional rights of students and parents alike. But it should also hold that the constitutional defect could be cured-and, indeed, that random drug testing of all students could be justified? simply by exempting any whose parents refuse to consent. Such a parental-veto approach would probably be as effective as Veronia’s program in deterring student drug abuse because most parents who have reason to suspect their own children of drug abuse would consent to drug testing. And any marginal decrease in deterrence would surely be warranted by the paramount interests of parents in the well-being, and the constitutional liberties, of their own children. If I trust my children, nobody else should have the right to subject them to suspicionless drug testing over my objection.

I’M WAITING, YOUR HONOR

In the event that the Supreme Court has a different view, however, and decides to take another step toward universal drug testing, I want to renew a suggestion that I made after the Court unwisely upheld (over a crackerjack dissent by Scalia) the government’s drug-testing program for Customs Service employees seeking drug-enforcement jobs (See ‘Drug-Test Case Rips Into Privacy," March 27, 1989, Page 15):

Why not a mandatory urine-testing program for judges-or at least all judges who hear drug cases- from the Supreme Court on down?

After all, if high-school jocks are role models for their fellow students (as the Veronia school district stresses in its focus on athletes), surely judges are role models for us all. And if we can’t trust Customs Service employees who have not been tested for drugs why trust untested judges?

A side benefit of requiring judges to give a little urine at the office might be to instill in those who are eager to enlist as generals in the drug war a fuller appreciation of what it’s like for the privates.

Come to think of it, we could get a pilot program started right now, with Supreme Court justices voluntarily submitting to drug testing by (who else?) the press corps.

So: Come on, Mr. Chief Justice. Join me in the men’s room. Just take this little cup, and hand it to me when you’re done. I’ll be standing right behind you, listening.

Note: The quotation in ray March 27,1995, column of remarks made by former Clinton White House Counsel Lloyd Cutler on ABC’s ‘This Week With David Brinkley" program (March 19) may inadvertently have given some readers the false impression that Cutler has switched from supporting to opposing the federal independent-counsel statute. In fuller context, he said that he still supported the statute "on balance," but that he had had "some second thoughts," including a concern that ‘the threshold is much too low" because of the statute’s limitations on the attorney general’s investigative powers and on her discretion to "conclude, as in the case of Mr. Cisneros, that there was no criminal intent to deceive."