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Playing the Drug-Testing Game: College Athletes, Regulatory Institutions, and the Structures of Constitutional Argument

NCJ Number
Indiana Law Journal Volume: 62 Issue: 4 Dated: (1986-87) Pages: 863-983
J A Scanlan
Date Published
121 pages
This article analyzes drug-testing of college athletes from three perspectives: the counselor giving advice to an institution intent on testing about 'what it can safely get away with,' a litigator seeking to defend an athlete's interests who has been tested, and the judge who disposes of the issue for contending parties and frames the applicable rule of law.
Drug-testing plans adopted by the National Collegiate Athletic Association (NCAA) and Indiana University are described. The two approaches give the courts a fundamental choice: will they permit wide-scale, random intrusions into the lives of hundreds of thousands of athletes expecting to discover that a small percentage are using illegal drugs, or will they forbid testing on the grounds that the danger posed to liberal ideals is more important than health and safety risks posed by scattered drug use. The shortage of lawsuits suggests that most athletes are willing to go along with testing, probably due to institutional and political pressures. The article chronicles an idealized effort of an institution's attorney to work through the maze of largely negative precedents to find justification for a testing program compatible with the requirements of existing law. It shows that it is easier to find legal justifications when defending the NCAA than programs of universities. Also discussed are second level arguments which frame doctrine in the light of contingencies, relativizing assertions of generalized individual rights to accommodate a State's particular claims. 482 footnotes.


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