ACLU Blasts Random Nicotine Testing

Fairbury, Nebraska

The entire Fairbury Public School system has fewer than 1,000 students, but they have the attention of the ACLU. In response to what is often framed as the teen vaping epidemic, the district has added nicotine to their randomly administered drug tests of students enrolled in school sponsored extracurricular activities.

The Lincoln Journal Star reports that due to their participation in extracurricular activities, 60 percent of Fairbury students are entered into the random drug testing pool. Each student has an ID number assigned and 10 percent of those numbers are chosen in a given month. This amounts to 20 to 25 students.

A medical professional then collects urine samples and sends them to Ohio-based Sport Safe testing service. There are a number of school districts in Nebraska that drug test students who participate in athletics, marching band and other school sponsored activities.

During the 2017-2018 school year, Fairbury had only 7 disciplinary actions related to vaping. During the most recent school year, that number spiked to 30. The second offense nets a 45 day ban and a visit to a medical professional or substance abuse counselor. A third strike will result in a year ban.

Plattsmouth, Nebraska: Testing Since 2014

Plattsmouth Community Schools, with about 1,700 students Pre-K through Grade 12, also tests for tobacco. They adopted this policy in 2014.

According to Plattsmouth Superintendent Richard Hasty, the school has not seen a significant increase in positive tests for nicotine despite the widespread concerns about teen vaping.

In Nebraska, the legal age for purchasing and smoking tobacco products is 18. reports that a bill to increase the legal age to 19 is working its way through the Nebraska legislature. In Nebraska, possession of tobacco by a minor is a class V misdemeanor.

ACLU Argument Against Random Testing

ACLU Legal Director Amy Miller is concerned because tobacco possession does not carry the possibility of jail time, making nicotine tests unwarranted and perhaps not even legally permissible.

The 2002 Supreme Court decision the Board of Education v. Earlsupheld the constitutionality of mandatory drug testing by public schools of students participating in extracurricular activities. 

Miller also expressed concerns about second hand smoke creating false positives. Sport Safe says they set high enough minimum levels to safeguard against this, but the ACLU found the appeals process to be lacking. Another serious issue is a lack of privacy safeguards and the potential for testing positive for prescribed medications.

The ACLU also argued that the random drug-testing of high school students, “Creates a disincentive for students to participate in extracurricular activities.” This would seem to be a serious concern for a school district based in a town with less than 4,000 residents.

The ACLU reckons that random drug tests drive away the students the school district in theory should be serving. To make matters worse, “Several studies have demonstrated that in districts that have tested for a decade or more, there was no demonstrable change in substance abuse.”

Fairfield School District Responds

Stephen Grizzle, Fairbury Superintendent, disagrees. According NBC News, he was not surprised that the ACLU cried foul. Lawyers representing the district examined the new policy, and it does not appear they will be backing down.

“It doesn’t change what we’re proceeding with,” Grizzle said. “We just believe we’re being proactive and taking positive steps to reduce nicotine use in schools.”

Grizzle also argued, "Our main concern is that No, 1, it's unhealthy. No. 2, it's against the law: They are not supposed to be able to purchase cigarettes and vaping and all that."

"I think it would stand to reason that it would get in the way of opportunities and educational experiences if they're focused more on when they can vape as opposed to what's going on in the classroom."

Securing a Future for Vaping

Random nicotine testing poses a quandary for vapers. After years of being under attack, confronting zombie vaping myths, and being bombarded by undiluted nonsense of all stripes, it is natural to cast a wary eye at the most recent anti-vaping campaign.

After all, vaping critics can't comprehend that retro ejuice flavors target adults. These vape juices ape the style and flavor of Reagan-era cereals and candies because the buyers are most frequently children of the 80s and 90s. The most popular vaping device and flavor with today's minors is a pared down menthol derivative: Juul Mint.

Yet flavor bans are regularly proposed, such as the SAFE Kids Act, are regularly proposed at all levels of government. Peruse any comment section on a mainstream vaping article and you will find a flood of concerns about the fanciful sweet flavors that adults vape from box mods. The word nic salts appears nowhere, even though this is a much more salient issue. For a run down on how nic salts changed the vaping game, check out our feature "What Is Salt Nic?"

We cannot ignore the reality, underage vaping poses an existential threat to vaping as we know it. If rolling back the privacy of minors, within the confines of existing and constitutional methods, makes major inroads in reducing the teen vaping rate, this may be trade off worth making.

Vaping and Rural America

Fairbury, Nebraska is also an interesting case study due to their location. Located fifty miles south of Lincoln, it is rural America.

Iowa AG Thomas Miller outlined the difficulty rural Americans can have accessing cigarette alternatives in his letter concerning the new FDA e-cig regulations.

Rural Americans are one of the marginalized groups punished by strict e-cig laws. If the options are tougher measures to reduce teen vaping, or states copying San Francisco's e-cig prohibition, it is clear which one is more detrimental to former smokers.

Lung cancer rates are far higher in rural America and a lack of access to health care is blamed. Regulations that add expenses to operating an independent vape shop will leave gas stations and convenience stores as the only refuge for smokers looking to purchase electronic cigarettes in person.

Stopping Teen Vaping

Drug testing students participating in extracurricular sports appears to be legally ironclad, and the ACLU protestations have yet to be backed up with any legal action.

At least testing students for nicotine addresses teen vaping at the root level. It may seem wrong and intrusive, but it is preferable to punishing adults, and preventing them from accessing smoke and ash free alternatives. We have seen this latter scenario playing out on a regular basis over the last year.

Education and age verification are the two most effective methods of reducing teen vaping. These are the methods that cut smoking rates in recent years.

Prohibition and a demand for total abstinence from adults are doomed to failure. This puritanical approach also sows the seeds of a potential public health catastrophe, and could conceivably drive current vapers back to combustible cigarettes.

Even former FDA Commissioner Scott Gottlieb, no fan of vaping, freely conceded that it would be a net benefit if all smokers switched to vaping. His concern was non-smoking minors using electronic cigarettes.

Detecting Teen Vaping

We are on the same page as far as this goes. Vapor4Life has no interest in selling to minors or non-smokers. We utilize industry leading age-verification technology and card everyone who enters our store. Most minors obtain ecigs through social contacts, so the next logical step is cutting off demand.

It is quite possible that the spike in vaping infractions at Fairfield is as much due to greater vigilance by teachers, as an increase in use. If you are a parent and nicotine testing seems a bit too intrusive, we outlined a few pointers for detecting teen vaping in this feature: How to Spot Teen Vaping.

Alcohol is a scourge that kills 4,000 minors annually and sends over 100,000 to the emergency room. Marijuana use is more prevalent in youth, yet is being legalized at the same time nicotine is being stamped out. Dangerous driving kills thousands of kids annually.

It doesn't matter how much worse other things may be, vaping is in the cross hairs of regulators and politicians. It may seem ridiculous to think you can control the behaviors of willful teenagers, but at the end of the day, either teen vaping is reduced or our freedom to vape will be.