Decisions Leave Drug Testing in Limbo : Foes Call Reagan Plan Dead but Appeals Courts Have Yet to Rule

Two federal court rulings this week have cast doubt on whether the government may test its workers for drugs.

In a case in New Orleans, seen as the first test of President Reagan’s plan to examine 1.1 million federal employees for drug use, a federal judge ruled that urinalysis of all U.S. Customs Service workers seeking promotions was “a gross invasion of the right to privacy.”

In another case, a federal judge in Chattanooga, Tenn., ruled that the city may not routinely test its policemen and firefighters for drug use. District Judge R. Allan Edgar, echoing recent opinions on the issue, said broad mandatory testing--without “reasonable suspicion” that individuals were using drugs--violates the constitutional protection against unreasonable search and seizure.

‘The Courts Have Spoken’

“We think (Reagan’s program) is dead,” said Robert Tobias, president of National Treasury Employees Union, which brought the case in New Orleans. “The government might keep trying, but we think the courts have spoken clearly.”

A Justice Department spokeswoman said officials there would not comment on the legality of the President’s program until they had read the New Orleans ruling. However, spokeswoman Amy Brown said: “We continue to think our legal position is sound and that the ruling does not affect the executive order.”

The written opinion of Judge Robert F. Collins was announced Wednesday but not filed until Friday. Collins said from the bench that the urine sample required from customs workers was “a degrading procedure that so detracts from human dignity and self-respect that it shocks the conscience and offends this court’s sense of justice.”

Program Not Implemented

On Sept. 15, President Reagan signed an order requiring drug testing for federal employees in “sensitive positions.” The White House estimated that 1.1 million of the 2.8 million civilian employees would fall under the order, but the program has yet to be implemented.

In August, before the President acted, Customs Service Commissioner William von Raab said he wanted to make his agency a “model” of a drug-free workplace and ordered urine testing for newly hired workers and for those seeking promotions. It was this plan that Collins rejected.

The 120,000-member Treasury employees’ union has also filed suit against Reagan’s plan in a case that will be heard after the program is officially implemented. That case is to be heard by Collins in New Orleans.

Gene Guerrero, director of the American Civil Liberties Union in Georgia and a legal expert on drug testing, said he expects the courts to continue to reject required urinalysis as a condition of public employment.

“The rulings have been very consistent. They have all said you can’t force a government employee to submit to a urine test without some suspicion that the employee is using alcohol or drugs,” Guerrero said. Only one week after the President announced his plan, a federal judge in Newark, N.J., threw out a required urine-testing program for firefighters in Plainfield, N.J., saying that “mass urinalysis . . . casually sweeps the innocent with the guilty and willingly sacrifices each individuals’ Fourth Amendment rights.”

Advocates of drug testing point out that neither a federal appeals court nor the Supreme Court has ruled clearly on the issue. None of the rulings specifically decide whether testing is legal for private sector employees.

Tests for Police Officers

The Justice Department is also awaiting a decision in a case in Boston that tests whether the city may administer random drug tests to police officers.

The public has a right to expect police officers to be drug free, and the employees themselves “have no recognized, absolute expectation of privacy,” U.S. Assistant Atty. Gen. Richard K. Willard argued in a brief filed in Boston in September.

“Drug testing raises no greater constitutional concern than other testing devices, such as physical examinations, fingerprint checks or background investigations routinely employed as screening devices,” he said.

Atty. Gen. Edwin Meese III declared earlier this year that he believes drug testing is legal. “By definition, it’s not an unreasonable seizure because it’s something the employee consents to as a condition” of employment, he said.

But Collins explicitly rejected this reasoning, concluding that an employer may not require an employee to give up his constitutional rights as a condition of holding his job.

Regulations Being Devised

Reagan’s drug-testing plan, which gained wide publicity when it was announced, has been stuck in the Office of Personnel Management while officials have tried to devise a set of regulations to put the program into effect.

“We’ve been grinding through the process, and we hope to have some draft regulations for the (White House) domestic council to review by mid-December,” James Lafferty, a spokesman for the agency, said.

However, another official familiar with the pending rules says top officials disagree on whether to proceed.

“The people from Justice want to press ahead to set some sort of precedent, while another faction thinks we ought to wait for a clear court decision,” he said.