Drug testing - again.

Fact

More than 8 percent of the total population used marijuana in 1995.

The Fourth Amendment prohibits "unreasonable searches and seizures." With rare exceptions, such as airport and border searches, courts have concluded that a search is unreasonable in the absence of some reason to believe the search will discover the anticipated evidence. The ability to determine whether a person has used illegal drugs by testing a urine sample has put considerable pressure on this principle.

In 1989, in National Treasury Employees Union v. Von Raab, the Supreme Court upheld the suspicionless drug testing of customs agents who were directly involved in drug interdiction or carried firearms.(1) The U.S. Customs Service did not adduce evidence tending to show that drug use was a serious problem among its agents. Nonetheless, the Court accepted the claim that the need for integrity in the nation's drug enforcement agents--and the interest in public safety--justified testing in the absence of individualized suspicion.

Two terms ago, in Vernonia School District 47J v. Acton, the Court approved both mandatory and random testing of public school students who participated in organized athletics.(2) The Acton opinion emphasized that the school district had adopted the testing policy only after a serious drug abuse problem surfaced that was traced to student athletes. Given the reduced privacy expectations of minors and the limitation of the program to voluntary participants in school sports, the Court found the government's interests weightier than the students' expectations of privacy.

This term, in Chandler v. Miller, the Court struck down a Georgia statute requiring that candidates for public office pass a state-approved drug test within 30 days of their names being placed on the ballot.(3)

The legislature adopted the statute in 1990. Given the public mood on drug issues, it was the kind of bill that politicians could hardly vote against. Libertarian Party candidates, however, sued to have the statute declared unconstitutional. The district court denied relief, and the Eleventh Circuit Court of Appeals affirmed.(4)

Georgia's defense of the statute before the Supreme Court was at most lukewarm. Asked at oral argument whether the record contained evidence of a drug problem among political candidates, counsel for the state was quick to concede that "there is no such problem as we sit here today."(5) The state al so conceded that most candidates who used illegal drugs could simply abstain for a few weeks before supplying their urine sample and avoid detection.(6)

Justice Ruth Bader Ginsburg wrote the opinion for an all-but-unanimous Court. She began by emphasizing that

To be reasonable under the Fourth Amendment,

a search ordinarily must be based on individualized

suspicion of wrongdoing. But

particularized exceptions to the main rule are

sometimes warranted based on "special needs,

beyond the normal need for law enforcement."

When such "special needs"--concerns other

than crime detection--are alleged in justification

of a Fourth Amendment intrusion, courts

must undertake a context-specific inquiry, examining

closely the competing private and

public interests advanced by the parties.(7)

Unimpressive defense

The Court was clearly unimpressed with the "public interests" advanced by the state.

Georgia freely conceded the absence of any known drug abuse problem on the part of its elected officials. Moreover, the testing program was poorly designed to prevent such a problem because the statute required only a single test, with 30 days' notice to the candidate.

In response to the claim that the testing program had symbolic value, Ginsburg quoted Justice Louis Brandeis's dissent in Olmstead v. United States.(8) Long since overruled, Olmstead held that wiretapping is not a search for Fourth Amendment purposes. Brandeis thought that law enforcement by unsavory means would breed disrespect for the law. Evidently, Ginsburg believes that unrestricted drug testing--like unrestricted wiretapping--establishes the wrong kind of symbol.

Chief Justice William Rehnquist alone dissented. His opinion, however, neatly skewers the majority on every critical point. True, there was no demonstrated record of drug abuse among the people to be tested, but that had been true in the Von Raab case. Surely, a drug-impaired attorney general could work as much woe as a drug-impaired customs agent.

The argument that the testing regime would be ineffective neglects the counter that a drug test scheduled in advance will still detect the uncontrollable addict who presumably poses the greatest danger. The argument also seems to suggest that the state could cure the constitutional infirmity of the testing program by requiring random, unannounced tests. The public scrutiny of electoral candidates relied on by the majority suggests that, like the student athletes in Acton, candidates for office had voluntarily accepted a reduced expectation of privacy.

Rehnquist concluded that "nothing in the Fourth Amendment ... prevents a State from enacting a statute whose principal vice is that it may seem. misguided or even silly to the members of this Court."(9)

To take the Court at face value, the difference between the Acton and Von Raab cases on the one hand and the Chandler case on the other is the government's greater need for the testing program. There is another--more cynical--explanation. Candidates for statewide office bear a much closer resemblance to Supreme Court justices than they do to juveniles or drug agents.

Indeed, candidates for Georgia's Supreme Court were subject to the testing policy. The war on drugs is taken seriously, but not so seriously as to invade the privacy of the upper middle class.

The Acton decision was clearly vulnerable to the argument that a suspicion-based testing system could have done as much to combat the school's drug problem while doing less damage to individual privacy.(10) The justices' low regard for the privacy of young people is the most likely explanation for the Acton majority's uncritical acceptance of the school district's justifications for mandatory and random testing.

Drug statistics

According to government survey data, more than 8 percent of the total population uses marijuana on an annual basis.(11) Young people were not the only users. The figure is above 4 percent for those 35 and older.(12) No society can put 8 percent--or even 4 percent--of its population behind bars. A serious effort to do so would split the political consensus favoring drug enforcement in the first place. Any drug enforcement policy accordingly must select targets for prosecution.

It should come as no surprise that high school students make more attractive targets than political candidates. The Chandler majority seemed to think it highly significant that only Georgia had adopted a testing policy for political candidates. The novelty of Georgia's law suggests that influential people generally don't want to submit to testing programs they approved for less influential people.

If the polity ever decides to wage a real war on drugs--a campaign to curtail demand rather than repeat the costly, cruel, and futile strategy of interdicting supply--the Chandler case would pose only a minor obstacle.

Ginsburg concluded the majority opinion by reemphasizing "that where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as `reasonable'--for example, searches now routine at airports and at entrances to courts and other official buildings."(13)

Given a demonstration of narcotics-related traffic accidents, a case could be made that mandatory drug tests should be required to obtain or renew a driver's license. That policy would really discourage demand for illegal drugs. For precisely that reason, no legislature is likely to adopt it--at least as long as hypocrisy remains the compliment that vice pays to virtue.

Notes

(1.) 489 U.S. 656 (1989).

(2.) 115 S. Ct. 2386 (1995).

(3.) 117 S. Ct. 1295 (1997).

(4.) See Chandler v. Miller, 73 F.3d 1543 (11th Cir. 1996).

(5.) 117 S. Ct. 1303.

(6.) Id. at 1304.

(7.) Id. at 1301.

(8.) "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." 277 U.S. 438, 485 (1928).

(9.) 117 S. Ct. 1308 (Rehnquist, C.J., dissenting).

(10.) See, e.g., WAYNE R. LAFAVE, 4 SEARCH AND SEIZURE  10.11(b), at 826-28 (3d ed. 1996).

(11.) U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1995 table 3.73, at 293 (1996).

(12.) Id.

(13.) 117 S. Ct. 1305.

Donald A. Dripps is a professor at the University of Illinois College of Law.