EDITORIAL
By:
The most disturbing feature of last week’s New Jersey Supreme Court ruling upholding random drug testing at Hunterdon Central High School may not be the precedent it set it may, in fact, not have set any precedent at all. Instead, it may be the 4-3 vote that divided the justices on this issue.
Civil libertarians may lament the court majority’s finding that random drug testing of students involved in extracurricular activities at Hunterdon Central doesn’t violate the state constitution. They had hoped New Jersey’s high court would find, as it has on a number of occasions in the past, that the state constitution affords greater protections against unreasonable search and seizure than those offered under the U.S. Constitution.
On this precise point of law, they may have cause for concern several years down the road. But as a practical matter, the likelihood that last week’s ruling could open the door to random drug testing of students across New Jersey is remote at best. It may, in fact, have little practical effect at all.
Writing for the court majority, Justice Peter Verniero cautioned that the ruling applies only to Hunterdon Central and to no other drug-testing program anywhere in the state. The Hunterdon Central program, Justice Verniero wrote, is based on a "meticulously established record," dating back 15 years, that not only demonstrated a clear need for drug testing but also established a protocol for random tests that was minimally intrusive to students.
"Whether that becomes an easy or difficult task for other school boards to accomplish," Justice Verniero added, "remains to be seen." Even the American Civil Liberties Union, which challenged the Hunterdon Central program on behalf of the parents of three students, was heartened by this cautionary language along with the sharp dissent written by Justice Jaynee LaVecchia and joined by Justices Virginia Long and Barry Albin to conclude that this narrowly drawn decision does not represent a significant ideological shift in the court’s thinking.
But the ACLU, along with other groups and individuals who have kept an eye on the New Jersey Supreme Court over the years, may have cause to be concerned about a different kind of shift in the court a shift away from a long tradition of consensus toward open displays of disharmony.
It surprises many court watchers that Chief Justice Deborah Poritz, who managed to achieve unanimity in the notorious case of Frank Lautenberg replacing Robert Torricelli in last fall’s U.S. Senate race, either failed or didn’t even try to obtain a similar result in the Hunterdon Central case. It is hard to imagine either of her two immediate predecessors, Richard J. Hughes or Robert N. Wilentz, allowing the high court to issue such a divisive ruling.
Chief Justice Hughes, who served two terms as governor before ascending to the high court, used to say his proudest accomplishment was writing the opinion of a unanimous court in the case of Karen Ann Quinlan. Anything short of unanimity, he said, would have been unacceptable. Chief Justice Wilentz felt the same way about the landmark Mount Laurel opinions the court issued during his tenure; he labored long and hard to find language on which all the justices could agree.
Perhaps the Hunterdon Central case defied consensus. Perhaps the chief justice and her colleagues decided there was no point in seeking unanimity for the sake of unanimity. But it would be troublesome indeed if the disposition of this case were to mark anything more than an anomalous departure from past practice or, worse, if the Supreme Court of New Jersey were to begin looking more and more like the Supreme Court of the United States. We trust that Chief Justice Poritz, a wise and prudent jurist, won’t allow this to happen.