Drug Testing

President Reagan announced the War on Drugs in a televised speech in 1982. Shortly thereafter, federal agencies began to drug test their employees randomly, particularly those involved in law enforcement and those in safety-sensitive positions. The Supreme Court’s first foray into defining the contours of the constitutionality of drug testing of federal government employees came in the companion cases Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).

Skinner involved the drug testing of federal railway employees who had been involved in serious train accidents. In upholding the drug testing regulations, the Court relied on the ‘‘special needs’’ exception to the Fourth Amendment as articulated in Griffin v. Wisconsin, 483 U.S. 868 (1987). The Court also noted that the Federal Railway Administration had made a finding that there was a high rate of alcoholism and drug abuse among railway workers. Finally, the Court held that public safety was a concern that outweighed the privacy interests of the railway workers, focusing on the fact that trains were dangerous instruments when in the hands of inebriated workers.

Von Raab, decided on the same day, upheld the drug testing regulations of the Commission of Customs. The regulations provided for random, suspicionless drug testing of all customs officers because they carried weapons and many of them engaged in drug interdiction activities. The Court accepted the government’s argument that there was a serious crisis brewing in law enforcement due to drug abuse and held that the government had a compelling interest in randomly testing its customs officers, emphasizing the ‘‘extraordinary’’ dangers of drug interdiction.

Following these two cases, the D.C. circuit adopted a ‘‘nexus’’ test in Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989), requiring the government to prove a direct nexus between the employee’s position and the possible safety repercussions that could result from drug or alcohol abuse. This nexus test tends to invalidate most drug testing schemes of federal government workers unless the government can prove that a very serious safety issue exists. A few states, such as Alaska and Massachusetts, have declared all random, suspicionless drug testing to be in violation of state constitutions.

Later, the Supreme Court heard two cases relating to random, suspicionless testing of public high school students: Veronia School District 47J v. Acton, 515 U.S. 646 (1995), and Board of Education of Independent School District of Pottawatomie County v. Earls, 536 U.S. 822 (2002). In Veronia, the Court upheld the random, suspicionless drug testing of high school athletes, holding the deterrence of student drug use to be at least as important as the schemes in Skinner and Von Raab, particularly since high school athletes faced potential physical injury during sports activities. The Court also noted that children entrusted to the care of public schools had lesser expectations of privacy than adults, a holding the Court relied on in Earls as well. There, the Court upheld the random, suspicionless drug testing of public high school students who participated in any extracurricular activity, even those that would pose no danger to the children, such as choir.

The Court’s lone invalidation of a drug testing scheme occurred in Chandler v. Miller, 520 U.S. 305 (1997). There, the Court invalidated Georgia’s requirement that all candidates for state office must submit to a drug test. Georgia made no showing of any concrete threat that would serve to show a special need for the test. Also, the Court noted that the test would not serve to deter illicit drug use because the test was not a secret and drug abusers could abstain for a sufficient time period before the test.

Public opinion about drug testing shifted dramatically after President Reagan’s drug war declaration in 1982. Private employers and landlords began drug testing employees and tenants. State and federal public housing authorities began to require tenants to consent to drug tests as a condition of residence. Many state government and private employers require a pre-employment drug screen as a condition of employment. Federal and state agencies sometimes require organizations that receive grants to adopt drug testing policies. Finally, and perhaps most pervasively, individuals convicted of crimes and placed on probation or released on parole are usually subjected to random drug tests as a condition of their release from detention.

Scholars disagree as to the efficacy and constitutionality of drug testing. The magnitude of false positives and negatives detracts from the usefulness of drug testing as a deterrent to drug abuse. Anecdotal evidence suggests that, for example, marijuana users switched to cocaine when their employers began random drug testing because traces of cocaine use leave the body much more quickly. Moreover, an entire industry of manufacturing chemicals that disguise drug abuse has arisen. Recent scientific evidence suggests that expert testimony in criminal cases about the accuracy of drug tests is deeply flawed.

MATTHEW L. M. FLETCHER

References and Further Reading

• American Civil Liberties Union. ‘‘Drug Testing: A Bad Investment,’’ https://www.aclu.org/Files/Files.cfm?ID= 9998&c=184 (1999).
• Charles, Guy-Uriel, Fourth Amendment Accommodations: (Un)Compelling Public Needs, Balancing Acts, and the Fiction of Consent, Michigan Journal of Race and Law 2 (1997): 1:461–512.
• Lang, David, Get Clean or Get Out: Landlords Drug-Testing Tenants, Washington University Journal of Law and Policy 2 (2000): 459–487.
• Zeese, Kevin B. Drug Testing Legal Manual and Practice Aids, 2nd ed. Deerfield, IL: Clark, Boardman, Callahan, 2000.

Cases and Statutes Cited

• Anchorage Police Department Employees Association v. Municipality of Anchorage, 24 P.3d 547 (Alaska 2001)
• Board of Education of Independent School District of Pottawatomie County v. Earls, 536 U.S. 822 (2002)
• Chandler v. Miller, 520 U.S. 305 (1997)
• Griffin v. Wisconsin, 483 U.S. 868 (1987)
• Guiney v. Police Commission of Boston, 582 N.E.2d 523 (Mass. 1991)
• Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989)
• National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)
• Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989)
• Veronia School District 47J v. Acton, 515 U.S. 646 (1995)

See also Chandler v. Miller, 520 U.S. 305 (1997) (candidates); Griffin v. Wisconsin, 483 U.S. 868 (1987); National Treasury Employee Union v. Von Raab, 489 U.S. 656 (1989); Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989); Veronia School District 47J v. Acton, 515 U.S. 646 (1995); War on Drugs