KIKER DROPS MOTION, DRUG TESTING POLICY TO BE REVISED

A motion filed by Blue Ridge attorney Scott Kiker seeking an
emergency injunction halting the Fannin County Board of Education
from implementing its new mandatory drug testing program was
withdrawn following a hearing in Fannin County Superior Court Friday.

Kiker had filed the motion early last week on behalf of petitioner
Marion M. Kiker as natural guardian of two minor children who are
students at Fannin County High School, where the policy recently
approved by the board of education now requires drug testing of
students wishing to drive to school or participate in any
extracurricular activities or sports.

The motion and petition had alleged that the policy violated several
state and federal constitutional and statutory provisions.

The hearing was held before Chief Appalachian Judicial Circuit
Superior Court Judge Brenda Weaver, who noted at the outset of the
hearing that although she had not been involved in writing Fannin's
policy, she had recommended that the board of education adopt the
policy, and that Kiker had notified her office that he was aware of
her situation and still wanted to proceed in her court.

Weaver said that several things were going on in the circuit: that it
had one of the highest rates of methamphetamine use in the state;
that in operating drug court, family drug court and juvenile drug
court, that it had been found that while it is never easy to get a
person off drugs, that the sooner it can be done the better; and that
most drug court participants had begun using drugs as teenagers.

Weaver said the school testing program was not designed or intended
to be used for prosecution. She said that she believed that if a
preventive program was put in place, that the schools would be able
to work with both parents and children to reduce drug use.

It is especially hard, Weaver said, for the young to resist peer
pressure, and that the program provides positive peer pressure and
helps give students an "out" to resist negative peer pressure and say
they don't want to do drugs.

Weaver noted that the policy helps convey the community's seriousness
about combating the drug problem, and that no tax money is involved
in the school screening process. Rather, all costs are paid out of
drug surcharge fees assessed of court defendants after conviction.

Weaver did say that there were a few problems with some of the
wording of the testing policy, and that there may be some cleanup of
the policy necessary.

"This is not to harm children, this it to help children," Weaver
said. She said the policy was "never meant to be punitive," rather
that it was hoped that it would stop students from trying drugs the first time.

"I want everyone in this courtroom to know where this judge stands -
I will always stand there," Weaver said. "If I am going to be in
error, I'm going to be in error on the side of saving every child I
can possibly save. I am passionate about this."

Weaver said if the program can deter one child from using drugs the
first time, then it is worth it. She said if things in the program
need to be fixed then everyone should work together to fix it. During
the hearing, she said, she wanted to find if there were specific
areas of the program that needed to be examined. If that wouldn't
work, she told Kiker, he would probably need to request a recusal on her part.

Kiker said he asked for compassion for young people, and said he was
concerned about penalizing students who had earned privileges. He
said it puts in another layer of distrust and of questioning
integrity, and that introducing a presumption that a student is
unqualified to participate in activities unless he or she shows
otherwise is detrimental.

Kiker said he was willing to bend a little bit, but that had to be
balanced against the children's rights.

Weaver said the schools can't be selective - that they cannot
separate "good kids" from "bad kids" - "That's when you're really
discriminating," she said.

Regarding Kiker's objection to language in the policy that appeared
to allow other forms of testing than urinalysis, Weaver said the
schools were not going to do any blood or hair follicle testing and
suggested that perhaps language should be added into the policy to
clarify that. She did say, though, that under some circumstances use
of something like an "Alco-sensor" breath meter for alcohol
consumption might be appropriate.

Kiker said he was concerned about the confidentiality of the results
of any testing.

School board attorney Lynn Doss acknowledged there had been some
rough edges the first day of testing, but that "there is a learning
curve." She said that following the first day, adjustments were made
in the procedure for the second day. "We had to tweak it," she said.

Kiker said he understood that some tweaking may occur, but that what
was advertised and what was sent out to parents is what people have to go by.

Weaver said the overall policy is constitutional, but asked Kiker if
he would be willing to assist Doss in improving the policy, then
present their recommendations to the school board. "Overall, this
court is not going to stop the school system" from continuing with
the testing policy, she said.

Weaver suggested the attorneys use their time to make the policy
better, rather than arguing. "Let's make it a better policy. Let's
spend our time correcting the errors rather than arguing over it,"
she said. "That's what Judge Weaver thinks."

"We will stand down," Kiker said in agreeing to withdraw his motion.
He agreed that he and his son, a member of the high school student
government and mock trial team would assist with revision of the
policy, but urged care in the future. He said she schools have an
obligation to teach children about constitutional rights as well as
working to keep them off drugs.

"We would welcome their input," Doss said. "It (the testing policy)
will continue to evolve."

Following the hearing, Doss said the state department of education
had confirmed that Fannin's testing and the manner of collecting
samples and maintaining test results are in accordance with federal
guidelines, and that students' confidentiality is protected.

She said the manner of Fannin's testing procedure is that a student
enters and gives his or her name and parental permission slip. The
student then waits in the cafeteria or commons area until his name is
called. The student then goes into the designated restroom, one
person at a time with a monitor present, and gives a sample, then
takes that sample back to the collection table.

Doss said the monitor is not watching the students as they give their
samples, rather is present to make sure something is not removed from
a purse or pocket while the sample is being collected.

The first day of testing, students were not segregated at the
collection table. On subsequent days, though, Doss said the procedure
was changed to segregate boys from girls and to handle students one
at a time at the collection table to ensure privacy of all information.