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01/31/94

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Stanford acknowledges state supreme court ruling, will comply fully

STANFORD -- Stanford University Athletic Director Ted Leland on Friday, Jan. 28, acknowledged the California Supreme Court's ruling on the constitutionality of athletic drug-testing and said Stanford intends to comply fully with the resulting National Collegiate Athletic Association testing program.

In a split decision, the court ruled against the charge, originally filed by Stanford athletes in 1987, that the then-existing NCAA drug tests violated the state constitution's privacy provisions. Although the university had not yet seen a full copy of the decision Friday morning, the court apparently ruled that the constitutional right to privacy does apply to private actors but with a looser standard than for government entities.

"Although this case involved athletics, it was not an athletic contest, with winners and losers," Leland said. "We believe that through the long process everyone won something: College athletes made gains in their right to privacy; and we and the NCAA received guidance from the Supreme Court on what the California constitution will and will not allow.

"We have tried to make clear all along that Stanford never opposed drug testing. We, in fact, favor fair and effective programs to protect the health and welfare of athletes and athletics. And we intend to comply fully with NCAA programs.

"In this case, the university stood by its students in their challenge to the way drug-testing was done in 1987, which everyone has agreed was flawed. And that challenge, along with new research and improved methods, has been a force for important changes that have made the NCAA program more acceptable."

Among the changes made while the case was working its way through the courts are that the NCAA has stopped asking women directly about their use of birth-control pills and has removed from the list of banned substances certain ingredients in over-the-counter asthma treatments and cold remedies, such as Sudafed and Cotylenol.

Leland said that in the months before the ruling he had begun informal discussions with NCAA officials about post-ruling testing programs, and that Stanford is strengthening its educational efforts.

"We are intent on maintaining the record Stanford athletes have had when tested in other venues," he said. "In the years since the suit was filed, more than 100 of our athletes have been repeatedly tested by other sports governing bodies in national and international competitions, the Olympics and such other venues as NFL training camps. None has ever tested positive."

In 1986, the NCAA began random testing of participants in national championships and bowl games. It eventually extended the testing to 28 sports, requiring randomly chosen student-athletes to disrobe and urinate while officials watch, and to sign a form certifying that there were no irregularities in the entire testing process, even though the student had no way of judging that process.

On Jan. 6, 1987, the Northern California chapter of the American Civil Liberties Union filed suit in Santa Clara County Superior Court on behalf of Simone LeVant, then captain of the Stanford women's diving team. The suit, which challenged the NCAA's right to require student- athletes to submit to mandatory drug-testing, was based on the privacy provisions of the California constitution and the guarantee of the Fourth Amendment of the U.S. Constitution against unlawful search and seizure.

The suit was joined by women's soccer co-captain Jennifer Hill in February 1987. (LeVant graduated in June 1987 and, thus, was no longer a party to the suit when it went to trial.)

On July 20, 1987, football linebacker Barry McKeever joined the suit, as did the university. Stanford joined as a plaintiff so lower-court injunctions would apply equally to all its students until there was a final Supreme Court determination of the NCAA program's constitutionality.

After the courts issued preliminary restraining orders barring the NCAA from testing Stanford athletes, the NCAA took the case to trial in February 1988. As part of his ruling against the NCAA in that trial, on Aug. 10, 1988, Superior Court Judge Conrad Rushing issued a permanent injunction against requiring Stanford athletes to submit to NCAA drug- testing. The judge stated that the NCAA program "invades student- athletes' privacy" and "interferes with the athletes' right to treat themselves with appropriate over-the-counter medications as other students do."

The NCAA appealed the decision to the California State Court of Appeals, which on Sept. 25, 1990, again ruled against the NCAA. The NCAA then appealed to the California Supreme Court, which heard oral arguments, Nov. 1,1993, and issued its ruling Friday.

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