Schools that have quietly escalated their use of breath tests say they need to ensure that students are not drinking in class. Such testing is generally "for cause," and no solid data is available on how widespread the trend is.

The East Hampton School District on Long Island recently considered testing students suspected of drinking in school after a series of alcohol-related incidents, including students drinking at lunchtime and a group of teens being caught drinking on a school trip to Europe. The district proposed suspending any student found to have alcohol in their system or refusing to take the breath test.

Some school administrators say having the policy in place is preventative even if it is not used much. But constitutional-law professor Bernard James said that it is often community opposition, not legal challenges, that dooms such policies. Indeed, the East Hampton proposal has met with strong challenges, although the school board seems determined to approve the plan.

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