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Crack, symbolism, and the Constitution.

Crack, Symbolism, and the Constitution

Now that the use of illegal drugs, especially crack, has been labelled the country's number one public health and safety issue, we are likely to see more and more creative and repressive ways to attack the problem. As long as the use of such drugs and its associated violence was largely confined to America's underclass and inner cities, their use was not seen as a central societal issue. But times seem to have changed; what was commonplace drug use in the 1960s, for example, is now grounds for disqualification for positions in law enforcement, and even for the post of Justice of the Supreme Court of the United States. Much of the recent reaction to drug-taking can be viewed as sanctimonious, hysterical, and hypocritical.

On the other hand, both legal and illegal drugs can impair job performance, and employers have legitimate concerns about employee drug use in particular settings. How far should employers be able to go in testing and screening their employees? The Supreme Court decided its first two cases on this question in March. Although the rulings leave much to be decided and debated at a later date, they begin to set the limits of governmentally mandated drug testing.

The Railroad Rules

The first case involved regulations promulgated by the Secretary of Transportation under the Federal Railroad Safety Act of 1970.(1) These regulations, announced in 1985, were based in part on a 1979 study that concluded that 23 percent of railroad operating personnel were "problem drinkers," and statistics that showed that from 1975 through 1983 there were forty-five train accidents involving "errors of alcohol and drug-impaired employees" resulting in thirty-four deaths and sixty-six injuries. The regulations required the collection of blood and urine samples for toxicological testing of railroad employees following any accident resulting in a fatality, release of hazardous materials or railroad property damage of $500,000; and any collision resulting in a reportable injury or damage to railroad property of $50,000. After such an event, all crew members are to be sent to an independent medical facility where both blood and urine samples will be obtained from them in an attempt to determine the cause of the incident. Employees who refuse testing may not perform their job for nine months. Under another provision, the railroad may perform breath and urine tests on individuals it has "reasonable suspicion" are under the influence of drugs or alcohol while on the job.

The Customs Service Rules

In 1986 the Commissioner of Customs announced the implementation of a drug-testing program for certain customs officials, finding that although "Customs is largely drug-free...unfortunately no segment of society is immune from the threat of illegal drug use."(2) Drug testing was made a condition of placement or employment for positions that meet one of three criteria: they have direct involvement in drug interdiction or enforcement of drug laws; require the carrying of firearms; or require handling classified material. After an employee qualifies for a position covered by the rule, he or she is notified by letter that final selection is contingent upon successful completion of drug screening. An independent drug testing company contacts the employee and makes arrangements for the urine test. The employee is required to remove outer garments and personal belongings, but may produce the sample behind a partition or in the privacy of a bathroom stall. A monitor of the same sex, however, is required to remain close at hand "to listen for the normal sounds of urination," and dye is added to the toilet water to prevent adulteration of the sample. The sample is then tested for the presence of marijuana, cocaine, opiates, amphetamines, and phencyclidine. Confirmed positive results are transmitted to the medical review officer of the agency, and can result in dismissal from the Customs Service. Test results may not, however, be turned over to any other agency, including criminal prosecutors, without the employees' written consent.

The Fourth Amendment's


The Fourth Amendments provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

Constitutional protections, of course, apply only to acts of the government (and not to those of private employers). The Court, however, had no trouble concluding, however, that the railroad was acting as an instrument of the government. Of course, tests carried out on Customs Service employees, done pursuant to government rule, are covered by the Constitution.

The Court, in opinions written by Justice Anthony Kennedy, easily found that blood and urine tests are "searches" under the Fourth Amendment. As to the taking of a blood sample, the court noted, "this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable." Moreover, the chemical analysis of the blood "is a further invasion of the tested employee's privacy interests." Breath tests, the court found, implicated "similar concerns about bodily integrity and...should also be deemed a search." And although urine tests do not entail a surgical intrusion, "analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether she is epileptic, pregnant, or diabetic." The collection of urine also intrudes upon the reasonable expectation of privacy, especially when accompanied by a visual or aural monitor, and the Court amazingly and perhaps prudishly seems to think that having one's urination monitored is a greater violation of privacy than having a needle penetrate one's skin to remove blood.

A "Reasonable" Search?

Is this the type of search that requires a warrant, and if not, is this type of search "reasonable"? The Court concluded that no warrant is required for two primary reasons: (1) there are virtually no facts for a neutral magistrate to evaluate (because both the circumstances justifying the search and the limits of the search are "defined narrowly and specified in the regulations that authorized them"); and (2) the delay needed to procure a warrant might result in the destruction of valuable evidence as the drugs and/or alcohol metabolize in the employee. Warrantless searches have traditionally required at least some showing of "individualized suspicion"; but the court made it clear that "a search may be reasonable despite the absence of such suspicion" at least if the interference is "minimal" and it takes place in the employment context. This is because "[o]rdinarily, an employee consents to significant restrictions on his freedom of movement where necessary for his employment, and few are free to come and go as they please during working hours."

Blood tests are not unreasonable because they are usually "taken by a physician...according to accepted medical practice" and are "safe, painless, and commonplace." Breath tests, although not done by medical personnel, involve no piercing of the skin and can be done "with a minimum of inconvenience or embarrassment." Urine testing was seen as the most difficult to justify, because it involves "an excretory function traditionally shielded by great privacy." However, the railroad regulations do not required direct observation, and the test is done in a medical environment "by personnel unrelated to the railroad employer, and is thus not unlike similar procedures encountered often in the context of a regular physical examination."

More important, however, seems to have been the Court's view of the "diminished" expectation of privacy employees have when they enter certain occupations. The railroad industry was described as "regulated pervasively to ensure safety...." The court notes that an "idle locomotive" is harmless, but "it becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs." Customs employees are involved in drug interdiction and so "reasonably should expect effective inquiry into their fitness and probity." This is especially true, the court opined, because "drug abuse is one of the most serious problems confronting society today [and] the almost unique mission of the Service gives the Government a compelling interest in ensuring that many of these covered employees do not use drugs even offduty, for such use creates risks of bribery and blackmail against which the Government is entitled to guard."

Unlike the case with railroad employees, however, there was virtually no evidence that drug use is a problem in the Customs Service. Only 5 of 3,600 screened employees tested positive for drug use. The court, however, termed this finding a "mere circumstance," concluding that the Customs program was designed to prevent the promotion of drug users to sensitive positions, as well as to detect such employees. In the Court's words:

The Government's compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation's borders or the life of the citizenry outweigh the privacy interests of those who seek promotion to these positions, who enjoy a diminished expectation of privacy by virtue of the special, and obvious, physical and ethical demands of those positions (emphasis added).

Nonetheless, the court sent back to the lower court the section of the rules that dealt with individuals who had access to "classified" material for further proceedings because the list of positions covered (which ran from attorney to messenger) seemed overly broad to meet the goals of the rule.

The Dissents

The railroad decision was a 7 to 2 opinion, with Justice Thurgood Marshall dissenting. Justice Marshall saw the opinion as gutting the Fourth Amendment. He agreed that "declaring a war on illegal drugs is good public policy," but concluded that "the first, and worst, casualty of the war will be the precious liberties of our citizens." He was especially critical of the Court's reading into the Fourth Amendment an exception to the probable cause requirement when "special needs" of non-law-enforcement agencies make either warrants or probable cause inconvenient requirements. The Court's reasoning, he noted, equated past cases that dealt with minimal searches of a person's possessions, with a search of the person's body itself, and thereby widened the "special needs" exception without requiring any evidence of wrongdoing on the part of the person.

The most powerful and surprising dissenting voice, however, was raised by Justice Antonin Scalia in the 5 to 4 Customs case. Like the railroad case, the Customs case was driven by the "war on drugs" and "the Government's compelling interests in safety and in the integrity of our borders." As Justice Scalia argued, however, whereas there was evidence of drug and alcohol abuse resulting in accidents and injury in the railroad case, in the Customs case "neither frequency of use nor connection to harm is demonstrated or even likely." He concluded therefore that the "Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use." Justice Scalia noted, for example, that the record discloses not even one incident of the speculated harms actually occurring, nor even one incident "in which the cause of bribetaking, or of poor aim, or of unsympathetic law enforcement...was drug use." Instead, the evidence is that the Customs Service is "largely drug free." The regulations thus expose "vast numbers of public employees" to the "needless indignity" of urine screening simply so the Customs Service can "set an important example" in the country's fight against drugs. Justice Scalia properly concluded that such a solely symbolic justification is "unacceptable" when the Fourth Amendment is violated:

...the impairment of individual liberties cannot be the means of making a point;...symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search....Those who lose...are not just the Customs Service employees, whose dignity is thus offended, but all of us--who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.

The Age of Screening

Justices Marshall and Scalia both seem correct. The Fourth Amendment now affords citizens far less protection against governmental searches, and this will inevitably result in a lessening of respect for the bodily integrity of all citizens.

As Justice Scalia quite correctly noted, the opinions can immediately be extended to all those employees who carry firearms, and from there, to all employees whose jobs, if performed under the influence of drugs, could harm the public, including: "automobile drivers, operators of potentially dangerous equipment, construction workers, school crossing guards."

The war on drugs, of course, has special application to physicians. They, as much as Customs officials, might be chosen by the government as a "model" for other citizens. Since they have direct access to drugs and write prescriptions for them, the government could require drug screening as a condition of licensure. And if it could be shown that physicians, nurses, and other health care professionals have a drug or alcohol problem that could seriously harm citizens, this could permit states and the federal government to pass laws requiring drug screening for employment or the granting of staff privileges. Of course, private employers can adopt such rules themselves now, and are not subject to the provisions of the Fourth Amendment. On the other hand, some state constitutions are more protective than the federal constitution, and in those states, state and local governmental employees may be protected from mandatory screening in the absence of probable cause.

These rulings leave open a number of questions of relevance to the forty-four cases currently in the federal courts dealing with various aspects of drug screening tests.3 Perhaps the most important is whether the government can require random drug screening, not related to a specific incident, reason to suspect drug use, hiring or promotion. We can only speculate, but it does seem reasonable to conclude that Justice Kennedy would find nothing constitutionally infirm in a practice of random drug screening to further the "war on drugs." The four dissenters in the Customs case would surely rule against random drug screening, at least in the absence of a specific finding that the class of employees screened had a history of drug use that could result in serious injuries.

The cases also raise a generic issue about screening. If the government can compel screening to determine if an individual is using a substance whose use is forbidden by the criminal law, is there anything the government cannot mandate screening for to protect the public? For example, what would prevent the government from requiring genetic screening for susceptibility to various diseases if and when such screening becomes available, and assuming the screened-for disease rendered the individual "less qualified" for the job, or potentially dangerous on the job? Indeed, the Court seems almost eager to view any screening test done by a physician as routine medical practice as de facto reasonable, without any real analysis of how intrusive such testing can be.

Will the courts support mandatory screening only for rank-and-file and "blue collar" workers, and balk at any mandatory attempt to screen professionals, such as lawyers, physicians, professors, and high-ranking government officials? How the court ultimately rules on mandatory screening for those with access to "classified" documents will tell us much about the Court's view of which "class" of citizen deserves to be screened, and which class deserves the protection of the Fourth Amendment.

As the "age of screening" dawns, there will be more airport searches, more highway road blocks for sobriety testing, more intense border searches, and more screening tests for hiring, promotion, licensing, and continued employment. It is all part of our penchant to focus on individual citizens instead of systemic social problems. We seem to think that by treating citizens like grapes from Chile to be screened for cyanide, or apples to be screened for Alar we can solve our problems of poverty, racism, and violence. It is the impulse that had us concentrate on the captain's drinking when the Exxon Valdez ran aground and spilt its environmentally lethal cargo in Alaska's Prince William Sound.4 Instead of reexamining the activities and planning of the oil industry to prevent and contain oil spills, we will likely see more drug and alcohol screening of tanker crews as the solution to oil spills. We like the easy way out, and mandatory drug screening seems cheap; it only costs us our Fourth Amendment security.

References 1 Skinner v. Railway Labor Executives' Association, 57 LW 4324 (March 21, 1989). 2 National Treasury Employees Union v. Von Raab, 57 LW 4338 (March 21, 1989). 3 S. Wermiel and P.M. Barrett, "Justices Allow Some U.S. Use of Drug Testing," Wall Street Journal, 22 March 1989, A3. 4 P. Shabecoff, "Captain of Tanker Had Been Drinking, Blood Tests Show," New York Times, 31 March 1989, 1.
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Author:Annas, George J.
Publication:The Hastings Center Report
Article Type:column
Date:May 1, 1989
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