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Original Issue


A judge said no to the college drug testing policy

It's difficult to keep Abreast of the NCAA's legal reversals, so frequently is that august body found wanting when brought before the bar of justice. So, just in case you missed it, a couple of weeks ago the NCAA lost a big one that may have made the world a little safer for democracy. The case was originally brought by Stanford diver Simone LeVant, who has since been graduated, and it was continued by Jennifer Hill, a soccer player, and J. Barry McKeever, a linebacker on the Cardinal football team. Santa Clara County Superior Court Judge Conrad Rushing ruled that the NCAA's mandatory drug testing plan, implemented a year ago for postseason competition—the NCAA also can do preseason testing but has not done so—is an unconstitutional invasion of privacy. The judge said he would allow limited testing in football and men's basketball, because those two sports accounted for all 34 of the athletes—out of a total of 3,511 tested—who came up positive. (Twenty-six of the positive urinalyses indicated steroid use; seven revealed traces of cocaine; one showed amphetamines.) But Rushing ordered the NCAA to return to court this week with a new plan for testing in those two sports.

"The paradox of this testing program is that an accused criminal of the most serious crimes is afforded more rights than our athletic heroes," Rushing wrote in his opinion.

Our athletic heroes, once thought to be the stuff that dreams were made of, have lately been reduced to standing before the NCAA's cadre of toilet monitors—these folks actually exist—and urinating into containers. It is the NCAA's conviction that only through this inelegant rite, in which the cup is replenished by the many to atone for the sins of the few, can college athletics once again be purified.

The results of the NCAA's first year of testing indicated that 99% of all college athletes who took part in postseason competition had no more experience with drugs than the average Supreme Court nominee. (These tests, however, are hardly foolproof: For one thing, they may not detect substances that mask steroids and other performance enhancers.)

It's no secret that some of our sports heroes have been making more visits to rehab centers than to choir practice, a circumstance the NCAA—not to mention large segments of the public and the press—seems to feel calls for the suspension of athletes' rights under the Constitution. With its usual impeccable sense of timing, the NCAA has chosen to ignore that glorious American document on the occasion of its bicentenary. Happy birthday, and up against the wall.

The supporters of mandatory testing believe in a new order that recognizes a greater good. "I don't give a damn about constitutional rights when I'm coaching my team," says Michigan's basketball coach, Bill Frieder. "I'm in favor of [testing], and I'm tired of these attorneys and judges." Adds Notre Dame coach Digger Phelps, "When drugs are out of control in society, somebody has to be a role model."

Actually, one role model has emerged from all this, and she's not merely an athletic hero. She's an American hero. When the NCAA ordered the 15,000 intercollegiate athletes in its member schools to sign consent forms last year agreeing to participate in the testing program, only LeVant, the captain of the women's diving team at Stanford, refused. "I was very surprised the NCAA would be allowed to do a thing like [test] on the basis of nothing more than a suspicion," LeVant says. She talked over that issue with faculty representative Jack Friedenthal, a law professor, and athletic director Andy Geiger, both of whom told her they agreed with her reservations about the NCAA program. But, says LeVant, "They said that their hands were tied, and that they thought I should go ahead and sign it." Instead, LeVant decided to do some research. "I looked up the fourth amendment," she says. Convinced that random drug testing was unconstitutional, she withdrew her consent form, which had been signed. (The NCAA cannot revoke the scholarship of an athlete who refuses to take a drug test; that decision is left to the school. LeVant kept hers.) Six weeks later she contacted the ACLU, won a temporary restraining order in January and was allowed to compete.

"The NCAA wants to give the impression it's attempting to do something because it doesn't want drugs to affect its image," LeVant says. "It was surprising to me when I started all this to find that there weren't that many people thinking about what it meant. People seem to think that if you're not for drug testing, then you must be for drugs."

Recognizing the difference, and being willing to take a chance that the system would work, required of LeVant a measure of courage uncommon among our athletic heroes—or the rest of us, for that matter. It's time to just say no to drugs—and to mandatory drug testing.