By Bill Graves
of The Oregonian staff

A Vernonia student's five-year battle to bar his public school from mandatory drug testing has ended with a federal court rejecting his final appeal.

The 9th U.S. Circuit Court of Appeals has ruled it will not reconsider the case that James Acton, now 16, took all the way to the U.S. Supreme Court.

Acton argued that the Vernonia School District's mandatory drug-testing policy for athletes violated his Fourth Amendment protections against unreasonable searches and seizures.

A lower federal court upheld Acton's position. But after hearing the case last spring, the U.S. Supreme Court ruled 6-3 that random drug testing of public school athletes did not violate students' Fourth Amendment privacy rights.

It remanded the case to the 9th U.S. Circuit Court of Appeals, however, to consider whether Oregon's Constitution offered more protection. The 9th U.S. Circuit concluded last fall that it did not. Acton then asked the court to reconsider, but it declined in its ruling released Friday.

But the question of whether the Oregon Constitution tolerates drug testing of public school students remains unresolved, said Tom Christ, a Portland attorney who volunteered to represent Acton on behalf of the American Civil Liberties Union.

"We just have the 9th Circuit position on what the Oregon Supreme Court might do if they got the case," he said, "which leaves everybody in doubt about whether drug testing is lawful in Oregon under the state Constitution."

Resolving that uncertainty will take another challenge of school drug testing at the state level, he said.

Acton's challenge, however, has made it clear that school districts are free to conduct drug testing under the U.S. Constitution.

Vernonia resumed drug testing, said Timothy R. Volpert, the Portland attorney who represented the district, and other districts elsewhere in the country are doing the same.

Students at Kokomo High School in Indiana must submit to voluntary drug testing if they want to leave campus for lunch. The New Orleans school district is launching a pilot program to do random drug testing of all students in two schools.

The Actons are disappointed, but not surprised by the results of their long legal battle.

"The decision we provoked has given a lot of encouragement to people whose idea of the society we live in are at extreme variance with ours," said Wayne Acton, James' father. "We are kind of children of the '60s. I don't think we expected the establishment to leap on our bandwagon."

James Acton is attending Vernonia High School and Portland Community College and has a job building and repairing computers, his father said.

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