Student-athletes sue 14 districts and OHSU over drug-test study
SSKRP ATTORNEYS IN THE NEWS
Eugene Register Guard
By MARK BAKER
Brian Johnson didn't want to do it, but after the examiner from Oregon Health & Sciences University handed him the cup, he filled it. Then, as the investigator held up two test tubes, the teen-ager poured his urine up to the dotted line in both.
That was two years ago at Monroe High School in Benton County. Johnson, a three-sport athlete who will be a senior this year and has been randomly tested for drugs three times, still doesn't like being tested, but he has no choice if he wants to play: His school district agreed to be part of a federally funded program that aims to determine whether drug testing really works.
"I'd say no one's in favor of it all," Johnson said of other student-athletes at Monroe.
The Saturn program, designed by Dr. Linn Goldberg at OHSU, is facing a class-action lawsuit brought by a New Jersey law firm on behalf of two students at Oregon's Dallas High School.
Reaction to the lawsuit, which names as defendants OHSU, the 14 school districts involved and each of their superintendents, has been mixed. "I'm not looking at it as an immediate threat," said McKenzie School District Superintendent Ron Hitchcock, also principal at McKenzie High School. "It's certainly something to be kept abreast of."
The McKenzie district - which is struggling with the same kind of budget crisis facing many Oregon school districts this year - will continue with the program unless it's forced to spend money to defend it, Hitchcock said. The program has been a success at McKenzie High and there have been no objections from either students or parents, he said, adding that he continues to support the program, especially in light of recent U.S. Supreme Court decisions saying student drug testing is constitutional. But Bill Crowson, athletic director at Monroe High School, sees some drawbacks to the program. "You're testing a group of kids that maybe isn't necessarily the group of kids you need to keep an eye on," he said. "I think it's steered some kids away (from playing sports)." Along with the Monroe and McKenzie districts, the Oakridge and Creswell school districts are also named in the suit.
Hitchcock is named individually, as are Monroe Superintendent Terry Mahler, Creswell Superintendent Rick Stuber and former Oakridge Superintendent Larry Horton. The superintendents are liable because they were responsible for implementing the experiment in their respective districts, according to the lawsuit, filed in U.S. District Court two weeks ago.
The suit, which could potentially be joined by thousands of Oregon student-athletes, seeks an injunction to halt the $3.6 million, three-year study and compensation for psychological and social harm. The study is scheduled to run through the 2002-03 school year.
"They can't justify compelling these students to be in this experiment," said Alan Milstein, the Pennsauken, N.J., attorney whose firm specializes in challenging the ethics of human experiments at some of the nation's leading medical institutions. "To me, it's Frankenstonian."
The lawsuit says the defendants' actions in the Saturn program are in violation of the the Fourteenth Amendment's guarantees of bodily integrity, privacy and the essential right to human dignity. The lawsuit cites the Nuremberg Code's international standards for conducting biomedical research on human subjects as research ethics recognized worldwide and established after German scientists' experiments during World War II.
"The lawsuit is not about drug testing per se," said Portland attorney Jay Schornstein, local counsel for the lawsuit. "It's about coercive testing in biomedical research. We believe that there are federal laws that state it is impermissible for people to participate in biomedical research without (their) consent."
"I don't know what to say; I haven't been served yet," said Horton, now superintendent of the Sweet Home School District in Linn County. But he said he supported the decision of the Oakridge School Board to join the program. "I've personally had to knock on the door of a parent and tell them their child had been killed in an alcohol-related accident," Horton said. "That's the worst thing I've ever done."
Shannon Weber, whose daughter, Ginelle, refused to be drug-tested at Oakridge High two years ago, thus losing her spot on the school's volleyball team, said the study uses students as "lab rats," and she's thrilled about the class-action lawsuit.
"This has been our stance all along," she said. "How can a school district hand your children over to a human experiment? Parents who aren't paying attention to this should be. It's very scary."
The Webers sued the Oakridge district two years ago with the backing of the American Civil Liberties Union. Lane County Circuit Judge Lyle Velure upheld the district's paticipation in the program last year, and the Webers appealed to the state Court of Appeals, which heard the case in March. A decision is pending.
Brian Johnson's father, Bruce Johnson, agrees with Weber on the grounds that the drug-testing study is immoral. He's had two boys tested at Monroe High School and seriously considered telling them to forget playing sports, but knew it would break their hearts.
"Both of them threatened to fill the examiner's shoe instead of the cup. But they didn't," he said.
But Joe Prenevost, golf coach at Oakridge High the past two years, believes the program is a good idea. "It's the same test they use for Olympic athletes," said Prenevost, whose son, Uni, played football at Oakridge and was named most valuable player in the Trico League last fall. "I think it's a very good idea," he said. "If it keeps kids off drugs, that's great."