Justices to Rule on Federal Drug Testing : Union Challenges Administration Plans for Customs Employees

Agreeing to hear a key challenge to the Reagan Administration’s plans to rid the government of drug users, the Supreme Court said Monday that it will decide whether federal officials can require employees to be tested for drugs.

A ruling in the case will determine whether government officials, policemen, air traffic controllers, railroad engineers, schoolteachers and other employees of government agencies or government-regulated industries can be forced to undergo drug testing.

However, the outcome will have no direct bearing on employees in private firms, many of which also require their employees to be tested for drugs.

Union Protests

The Fourth Amendment bans “unreasonable searches and seizures” by the government, and the National Treasury Employees Union contends that the required urine testing of Customs Service workers is unreasonable as well as “demeaning, humiliating and offensive.” Attorneys for the union argue that the government can test an employee only when it has evidence that an individual uses drugs.

But a federal appeals court in New Orleans disagreed last year, ruling that it is reasonable for the government to set especially strict standards for employees charged with stopping the flow of drugs into the United States.

“It is not unreasonable to set traps to keep foxes from entering henhouses,” wrote Judge Alvin B. Rubin, “even in the absence of evidence of prior vulpine intrusion or individualized suspicion that a particular fox has an appetite for chickens.”

Opinion Overturned

The 2-1 ruling overturned a District Court opinion and allowed the Customs Service to resume testing of new employees and those who wanted promotions to “sensitive” jobs.

Other federal courts have upheld the testing of FBI agents, bus drivers and racehorse jockeys, while state courts have thrown out the random testing of police officers, firefighters and school bus drivers.

Last month, a three-judge panel of the U.S. 9th Circuit Court of Appeals in San Francisco broke with other federal courts and threw out a mandatory drug testing program for railroad workers whose trains were involved in accidents. The Federal Railway Administration’s rules requiring the tests violated the Fourth Amendment because they are not based upon a “particularized suspicion” about an individual employee, the court said.

“Accidents, incidents or rule violations, by themselves, do not create reasonable grounds for suspecting that tests will demonstrate alcohol or drug impairment in any one railroad employee, much less an entire train crew,” wrote Judge Thomas Tang of Phoenix. He was joined by Judges Harry Pregerson and Arthur Alarcon of Los Angeles.

Hearing in October

This conflict between two federal appeals courts, plus arrival of new Justice Anthony M. Kennedy, apparently prompted the high court to decide the issue. The case (NTEU vs. Von Raab, 86-1879) will be heard in October and a ruling can be expected several months later.

The Reagan Administration has intended to begin drug testing throughout the government, but its plans have been on hold pending the outcome of the legal challenges.

In past rulings, the high court generally has insisted on some evidence implicating an individual before allowing police to search for drugs or alcohol. However, in what it considers “highly regulated” industries, the court has allowed government inspectors much more freedom in conducting searches.

Vital Duties Cited

Legal experts said that this case likely will turn on whether the justices view the Customs Service employees as ordinary workers or employees whose duties are vital to public safety and welfare.

Robert Tobias, president of the employees union, said his attorneys will argue that the mandatory urine tests are not only “highly intrusive but ineffective. They don’t measure impairment on the job,” he said.

If the government would employ a simple test--perhaps using a computer screen--that measures whether an employee is alert or impaired, his union would support it, Tobias said.

While union attorneys applauded the recent 9th Circuit ruling as bolstering their case, a conservative legal scholar said it may have the opposite effect.

Engineer’s Testimony

“The testimony of (former Conrail engineer) Ricky Gates has sealed this case,” said Bruce Fein of the Heritage Foundation, predicting that the high court will uphold mandatory drug testing because of the recent rash of train accidents blamed on drug abuse by crew members.

On Jan. 4, 1987, Gates drove his locomotive into the path of a speeding Amtrak train near Baltimore, resulting in an accident that killed 16 people. A subsequent blood test found that the engineer had been using marijuana and alcohol. Last Friday, Gates told a Senate committee that as many as 20% of train engineers have a serious drug or alcohol problem.

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