Wednesday, December 21, 2005

Random Steroid Testing for New Jersey High School Stars


New Jersey has become the first state in the country to mandate steroid testing for high school athletes. Acting Governor Richard Codey signed an Executive Order requiring random steroid testing for members of all high school athletic teams that qualify for post-season play. The Order is the culmination of the Governor's Task Force on Steroid Use and Prevention, which issued its report yesterday. Some of the Task Force's recommendations are easy to implement, make sense, and are non-controversial: incorporating education about steroids into the state's current DARE curriculum; encouraging schools to educate students on the risks of steroids; and producing public service ads regarding the same.

As is often the case when an issue does not encounter any significant political opposition (e.g., there are no interest groups supporting steroid use by high school athletes), legislation concerning the issue should be approached cautiously and critically. Bills that pass state assemblies unanimously are often the bane of practitioners' existence, because no one ever thought through what would happen if...

One issue that has already generated some controversy in New Jersey is funding for the steroid testing program -- everyone wants testing, no one wants to pay for it. The testing program is expected to cost approximately $50,000 per year, a cost that according to the Governor, will not be passed on to individual school districts. Note that the Executive Order does not specifically address who will be responsible for the cost.

Another issue is privacy. The ACLU has weighed in that they probably will not challenge such testing, since in Veronia v. Acton, 515 U.S. 646 (1995), the U.S. Supreme Court held that drug testing of high school athletes passed constitutional muster. It strikes me, though, that the random testing of only championship-caliber athletes could present a legal challenge as a somewhat arbitrary and capricious designation. And don't count on the ACLU not to challenge the law down the road -- the organization has filed class action lawsuits in the past challenging drug testing policies in communities where the ACLU asserts there is no widespread drug problem.

The testing program in New Jersey is slated to be implemented during the 2006-2007 school year. As the first such program in the country, it will be interesting to watch to see what legal challenges and consequences arise.

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