Why I Am Against Oregon’s Random Drug-Testing Program

Autzen StadiumThe story was buried innocuously on page D3 of The Oregonian’s sports section, as if it was of no import and even less concern. The University of Oregon announced that it was about to put in place a mandatory, random drug-testing program for student/athletes across all sports. The story talked about the program as if it was the most natural thing in the world, something that should arouse neither concern nor controversy.

That’s exactly the problem.

Student/athletes are not employees. One could argue that they’re getting something of value from the university (an education, though the term “student/athlete” is a misnomer). That doesn’t connote an employer/employee relationship. Why, then, are Oregon student/athletes to be subjected to a program whose legality and constitutionality are questionable?

Employment laws don’t govern student/athletes. Perhaps that’s what allows Oregon’s athletic department to feel they can trample their constitutional rights. Whatever the reason, the result is reprehensible and unworthy of a publicly funded university. Student/athletes are subject to standards and expectations that other students aren’t. If the rationale for the testing program is to cut down on drug use, then why aren’t non-student/athletes subjected to random, mandatory drug testing?

Can you imagine (the justifiable and understandable) outrage if that was the plan? Could it be that the real reason behind the program is the athletic department’s perceived need to protect the university’s image?

I grew up being taught (and believing) that an American is innocent until proven guilty. It’s called the presumption of innocence:

Ei incumbit probatio qui dicit, non qui negat (the burden of proof lies with who declares, not who denies). It’s the foundation of the American rule of law…unless you want to play a sport for the University of Oregon.

Here in the 21st century, the quaint notion of presumption of innocence has gone the way of the buffalo. The University of Oregon is now forcing its athletes to prove they’re not on drugs. Student/athletes will now be presumed guilty until they pee in a cup to prove their innocence.

Hmm…anyone else see a problem here? I’m not a constitutional scholar, but the words, “unreasonable search and seizure” keep running through my mind. In order to compete for Oregon, must a student/athlete now check their constitutionally guaranteed rights at the door to the Moshofsky Center? By accepting an athletic scholarship, does a student/athlete acknowledge that they have fewer rights than other students at the university…and the rest of society?

John Canzano of The Oregonian refers to the new testing program as the “Cliff Harris Rule,” and he’s got a point. If not for the former Ducks cornerback being busted for driving down I-5 at 118 MPH while stoned out of his gourd, none of this would likely seem necessary. And that makes me wonder; IS Oregon’s new testing program necessary? Or is it really just about the athletic department protecting Oregon from becoming known as just another lawless football factory? Is it about the student/athletes…or the school’s image?

There’s no credible evidence to suggest that any of Oregon’s sports programs have a drug problem. The Cliff Harris fiasco was clearly a PR nightmare for the Ducks; you can’t blame the athletic department for wanting to avoid a repeat. Does that justify the “If you burn down the forest, you’ll never have to worry about getting lost in it” drug testing program? If you randomly test all student/athletes at irregular intervals, you won’t have to worry about the occasional Cliff Harris, right? That might seem sensible in theory, but there’s this little thing called the 4th Amendment that no one seems to have considered:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 

There’s a substantial trove of case law establishing the precedent that random drug tests can be considered unreasonable search and seizure.

(Gentlemen, start your attorneys….)

To fans and non-student/athletes- who won’t be tested- Oregon’s plan might seem reasonable. If you’re not doing drugs, what do you have to worry about…right? Unfortunately, the message the new testing program sends to Oregon’s student/athletes is both disturbing and degrading. If you want to compete for the University of Oregon, you must agree to relinquish your 4th Amendment rights. You must accept the premise that you’re presumed to be using drugs until and unless you prove yourself innocent. And, as if all that wasn’t demeaning enough, you must agree to pee into a cup on demand.

Anyone else have an issue with that?

Lest anyone think I’m one to bury my head in the sand when it comes to drugs, I’m cognizant of what young people do in college. Once upon a time, I was a college student in a land far, far, away (y’all know it as “Minnesota”).  You might not know by looking at me now, but I inhaled once or twice. If I’d been required to pass a random drug test in order to play soccer…well, I’d have been in a world of hurt. The same would have been true for most of my teammates. Of course, none of us were busted for flying down I-35 at 118 MPH.

Any recreational pharmaceuticals I may have allegedly availed myself of didn’t impair my performance- on or off the field. I may have been guilty of being a normal twenty-something in the early 80s, but that’s as far as it went. The same is no doubt true today at the University of Oregon.

If Oregon’s new random testing regimen was applied to the entire student body, I suspect that we’d discover what we already know: a lot of Oregon students smoke…GASP!!!…marijuana. And what would we do with that knowledge? We’d do what we should do: nothing. If we’re not going to get our knickers in a collective twist over students drinking alcohol, we shouldn’t wax self-righteous over marijuana. Yes, I understand that marijuana is illegal, but to quote a Shakespeare character, “The law is an ass.”

If a student/athlete is identified as having a problem with drugs, there should be some sort of assistance program in place. An athlete with a drug problem should be supported in seeking treatment and getting back on track. One could also argue that there could, and should, be consequences. That’s an appropriate argument, because consequences generally accrue AFTER a problem has been identified. Every school has some type of personal conduct policy, which in most cases covers drug use. If an athlete violates that personal conduct policy, they have every right to expect to be punished. That’s as it should be.

Is it really necessary to subject student/athletes to a Minority Report-type of drug testing program? Should random, mandatory drug testing be allowed to function as “precrime” deterrents to bad behavior that might happen? Must student/athletes forfeit their 4th Amendment rights in order to be allowed to represent the University of Oregon?

Marijuana didn’t cause Harris to drive 118 MPH down I-5; he made that decision himself, and he was responsible for his own downfall. Allow me to play Devil’s advocate for a moment. What if Harris’ problem had been alcohol? Would Oregon’s athletic department announce that they’re going to be randomly testing student/athletes for alcohol? Of course not…which points out the hypocrisy inherent in the random testing program.  An athlete can pound a few six-packs of Ninkasi without a care in the world. Take a few hits of Jamaican happy weed…and watch the full weight and fury of Oregon’s athletic department descend upon the poor miscreant.

Oregon’s athletic administration may legitimately feel that there’s a drug problem amongst their student/athletes. That concern should lead to a program that’s fair and passes constitutional muster. It shouldn’t presume that an athlete is guilty until they pee in a cup to prove their innocence.

Even student/athletes have rights…and you don’t have to be a constitutional law professor to understand that.

About Arran Gimba