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Drug Lawsuit: Guinea Pigs Or Willing Subjects?

Lawsuit raises legal, ethical questions

Polk County Itemizer

By Tom Henderson

DALLAS -- Many students at Dallas High are required to sign contracts pledging to stay off drugs and alcohol.

Only athletes have had to submit to random drug testing.

Beth Wade feels that's wrong. Athletes are forced to give up their privacy, she said.

"Sports mean a lot to me," she said.

"I'm not against drug testing but to just test athletes I think is wrong. You should treat everyone the same."

This is the last year researchers from Oregon Health and Sciences University will be randomly drug testing athletes at Dallas High and 13 other Oregon high schoolers.

Researchers launched the study to find out the effect of drug testing on student drug use.

All 14 school districts as well as OHSU have been named in a lawsuit brought by Wade and fellow 2002 Dallas High graduate Amy Cordy.

Most of the districts' superintendents and high school principals are named in the lawsuit as well.

Cordy and Wade are seeking almost $9 million in compensatory and punitive damages.

They are being represented by the New Jersey law firm of Sherman, Silverstein, Kohl, Rose and Podolsky. Oregon attorneys Robert Swider and Jay M. Schornstein of Portland are the plaintiffs' representatives in Oregon.

The lawsuit argues that Cordy and Wade suffered physical and emotional distress, loss of self esteem and anguish as well as humiliation, embarrassment and mental and emotional distress.

Most of that came from the test itself, Wade said.

She also felt embarrassed when she refused to take a pretest survey and was sent to talk to Athletic Director Grant Boustead.

Her fellow students were nothing but supportive, Wade said.

"Other students feel the same way I do about testing, but they just go along with it. They don't have the courage to fight it."

The U.S. Supreme Court ruled two weeks ago that schools can randomly drug test student athletes. In 1995, the Oregon Supreme Court upheld the right of school districts to require drug testing for student athletes.

This case is different, Swider said.

SATURN is more than drug testing, he said. It is a research project to test the effect of random testing on drug use. That makes students subjects of an experiment.

Human beings cannot be used in experiments involuntarily, Swider said. SATURN, by making participation a prerequisite for playing sports, was not voluntary, he said.

Students not only had a choice, Novotney said, they had chances to change their minds.

SATURN researchers visit Dallas High about 15 times during the school year. During any of their visits, students who had previously refused could submit for drug testing.

Schedules permitting, they could play sports after passing the test.

School policy -- in effect before the SATURN program began -- forbids student athletes from taking drugs.

If athletes are discovered using drugs, they are provided counseling and suspended for two weeks. If there is a second offense, they are suspended for six weeks.

If there is a third offense, they are not allowed to play sports for the remainder of their high school careers.

Other programs, such as the leadership class and high school newspaper have similar anti-drug policies.

The difference with athletics is SATURN. The project provides a means for testing.

That means will disappear after the next school year. Once the three-year project has run its course, the Dallas School District will lack the money to test student athletes.

District officials have already had to lay off staff because of budget cuts.

"SATURN was a cost-effective way for us to reduce drug and alcohol use among student athletes," Novotney said.

"I think we will bring back staff before we continue drug and alcohol testing."

District officials agreed to participate in the SATURN project only after numerous community meetings, student focus groups and public hearings, Novotney said.

Wade criticized SATURN in newspaper interviews. A few other people voiced concerns. However, Novotney said he heard little opposition to the program.

Some parents were concerned that the test took too long. Some athletes had to be given liquids before they could produce urine samples.

That sometimes took the better part of a class period.

Some athletes were called in for testing two or three times. Athletes and parents were concerned that these students were being specifically targeted.

Novotney said the fact is that the tests were truly random. Occasionally, by the law of averages, students were going to be picked more than once.

In general, Novotney said, there have been few complaints about the process. Until now.

Dallas attorney Lane Shetterly is defending the school district. However, attorneys for Oregon Health and Sciences University will take the lead in the defense.

All the same, the lawsuit is going to be costly for all the defendents, Novotney said.

A multimillion dollar lawsuit comes at a bad time, he said. Although more than a dozen districts are also named in the lawsuit, mounting a defense could prove costly.

"It really doesn't fit in the budget," Novotney said. "This is one of those issues that takes us by surprise."

He expects Sherman, Silverstein, Kohl, Rose and Podolsky to put up quite a fight.

"They're a real go-getter law firm."