Combating the unfair competitive edge: random drug testing should be implemented in standardized testing to deter illicit and unfair use of prescription stimulants.

• Author: Romer, Shawn

1. INTRODUCTION II. OVERVIEW OF PRESCRIPTION STIMULANTS A. Abuse B. Academic Enhancing Effect C. Harmful Effects D. Current Safeguards Against Non-Prescribed Use III. THE IMPORTANCE OF STANDARDIZED TESTING TO ADMISSIONS IV. ANTI-DOPING EFFORTS IN SPORTS LAW A. Therapeutic Use Exemptions B. USADA Anti-Doping Law: a Shifting of Burdens C. Appeals and Review Board D. Arbitration E. The National Collegiate Athletic Association's Example V. THE SOLUTION VI. POSSIBLE CONCERNS A. Is it an illegal Search? B. Reporting Therapeutic Use Exemptions--Does it Violate the ADA? VII. CONCLUSION I. INTRODUCTION

   John Doe was a student contemplating attending law school. (1) Law school admissions, similar to admissions in most types of graduate and professional schools, are heavily dependent upon a student's standardized test scores. (2) John, having less than spectacular grades in college, knew that he would have to do very well on the Law School Admissions Test (hereinafter "LSAT") in order to be accepted into any law school. (3)

   John was an average test taker, and he had been scoring consistently in the mid 150's on his practice LSAT tests. (4) He had heard from a friend that taking Adderall, a drug commonly prescribed for patients suffering from Attention Deficit Hyperactivity Disorder (hereinafter "ADHD"), could tremendously enhance one's performance on standardized tests. John obtained some Adderall tablets from one of his friends who had a prescription for the medication. John took two of the tablets before the examination. (5)

   The drugs did not seem to take effect until the second (of six) thirty five minute sections. (6) At that point, John indicated that the drugs started stimulating him--increasing his heart rate and body temperature. In addition, he began to "think harder" and had little difficulty keeping his mind from wandering away from the LSAT problems. (7) John had barely finished the first section before his time expired; however, he finished the second section and subsequent sections around five to ten minutes before his time expired. (8) John scored a 162 on the actual examination. (9) He attributes his approximate seven point increase to his illicit use of Adderall. (10)

   John is not the only student who has taken these types of prescription stimulants in an effort to enhance his academic performance. (11) According to one study, 35.5% of undergraduate students have used these drugs in college, and one of the most common stated reasons was to enhance academic performance. (12) In light of the importance of standardized tests to admissions, (13) it should not be surprising that these students are also using prescription stimulants in an effort to enhance their performance on tests as well.

   The perception that these drugs enhance one's academic performance is common, especially among students. (14) The same is true for drugs that some athletes illicitly take in order to enhance their physical performance. Though many of these drugs taken to enhance one's performance in athletics and academics do have a proven enhancing effect, many have not been proven to have any enhancing effect. Regardless of whether performance enhancing drugs actually improve an athlete's performance, an athlete may not ingest a drug listed on the competition's banned list. (15)

   This note will first give an overview of prescription stimulants and will then explore the prevalent number of students who illicitly take prescription stimulants to enhance their academic performance. A description of how illicit use can be harmful to a student follows, and thereafter the note describes the scant current safeguards that currently exist against the use of illicit prescription stimulants. An explanation of the importance of standardized test scores to admissions follows, along with a description of how this importance has motivated students to seek an unfair competitive edge through illicit drug usage, which happens in many sporting competitions. The note will then explore the safeguards in place preventing illicit drug usage in sports and will argue that a similar random drug testing program should be implemented for students taking standardized tests.

   Finally, the note will explore possible objections to implementing a random drug testing program in standardized testing. Some contend that these tests may constitute an illegal search and seizure of a person in violation of the Fourth or Fourteenth amendments. In addition, some could contend that the proposed system of flagging scores of students taking prescription stimulants violates the Americans with Disabilities Act of 1990, 42 U.S.C.S. [section][section] 12101-12213 (LexisNexis 2007) (hereinafter "ADA"). These objections will be rebutted by an examination of legal precedent that demonstrates that random drug testing will not violate the Constitution or ADA.

2. OVERVIEW OF PRESCRIPTION STIMULANTS

   ADHD is a disease that causes inattention, hyperactivity, and impulsivity in children and adults. (16) Sufferers feel as if they always need to be moving, and they have difficulty concentrating on any particular subject or task. (17) Prescription stimulants are the most common forms of drug treatment. (18) These drugs "improve their [the patients'] ability to focus, work, and learn." (19)

   Previously, a prescription stimulant was administered in an immediate-release form. (20) Immediate-release stimulants begin affecting a patient within thirty minutes, generally peaking between one to three hours after ingestion. (21) This rapidly-absorbing version of the drug had the most potential for abuse. (22) Fortunately, a new extended-release version of the drug was developed that had less potential for abuse among those seeking a "high." (23) These extended-release stimulants "are absorbed so gradually that they don't cause a euphoric sensation and are therefore much less susceptible to misuse." (24) However, these stimulants are still susceptible to abuse among those who, without a prescription, wish to use them to enhance their academic performance.

   Many may think of ADHD as a disease that affects only children. On the contrary, an estimated 1.5 million adults, 10% of them over the age of fifty, are now prescribed stimulants to treat ADHD. (25) Treatment in adults, however, has not been found to be as effective as it has been for children. (26) According to one study, only 54% of adults treated with prescription stimulants responded to the therapy. (27) Approximately only half of adult users encounter any effect from ingestion of the prescription stimulant. (28)

   1. Abuse

      Although prescription stimulants are often very successful in treating ADHD, "the increase in prescription rates has raised some public health concerns because of the potential abuse of these medications." (29) Studies have suggested that varying numbers of college students abuse prescription stimulants. (30) According to one study, the non-medical use of Ritalin in 2003 was 5.7% for college students and 2.5% for those not attending college. (31) However, another study found that as many as 35.5% of undergraduate students have illicitly used prescription stimulants. (32) One study found that improving concentration was among the most prevalent reasons for their non medical use. (33) Another study found that "[m]otivations were primarily academic." (34) This abuse was disproportionately high among white male students who are members of a fraternity, attend competitive colleges, and have lower grade point averages. (35)

      Additionally, increased proliferation of prescription stimulants has likely aided in their abuse. Between 2000 and 2004, prescriptions for these medications increased from 1.6 million per month to 2.6 million per month. (36) Many factors may contribute to this increase such as heightened awareness of ADHD and its potential for treatment and the erosion of the stigma surrounding psychological disorders. (37) Another likely factor is the discovery that these drugs may enhance one's academic performance.

   2. Academic Enhancing Effect

      These stimulants have proven to enhance the academic performance of the user, regardless of whether he has been diagnosed with ADHD. (38) According to Dr. Eric Heiligstein, a psychiatrist who studies substance abuse at the University of Wisconsin, ADHD drugs can give the user almost "super human ability to focus for long periods of time." (39) Dr. Heiligstein went on to describe Adderall as an "academic steroid." (40) Studies conducted by the National Institute of Health in the 1970s have confirmed this statement by showing that stimulants increase concentration in healthy individuals. (41) Anita Barkin, the director of the Student Health Services at Carnegie Mellon University, said "Adderall and Ritalin are getting to be the drugs of choice for students who believe they will enhance their performance on tests or help them study more effectively." (42)

      Amphetamines, such as Adderall and Ritalin, mimic the dopamine neurotransmitter in the brain. (43) According to a study of healthy non-ADHD adults, published in the American Journal of Psychiatry, increased dopamine levels correspond with enhanced interest in the activity at hand. (44) This enhanced interest is likely the reason why stimulants are generally known to enhance academic performance. (45) Prescription stimulants have also been proven to enhance the academic performance of those diagnosed with ADHD. (46) One study showed that students diagnosed with ADHD, who were given prescription stimulants, attempted more math problems on a standardized test and had a higher accuracy percentage. (47)

      It is documented that students are abusing prescription stimulants to enhance their academic performance in college. (48) It is probable that they, like John Doe, are using these stimulants to enhance their performance in other academic areas such as when taking standardized tests. Not only does abuse in this way give those who break the rules an...