Justices Take Up Government-Worker Drug Test Issue

Justice Department attorneys told the Supreme Court Wednesday that the government should be permitted to force employees to undergo drug testing, both to promote safety in industries such as the railroads and airlines and as a symbol of its commitment to a drug-free workplace.

The justices heard arguments in two cases that are likely to determine whether government--at all levels--may proceed with mandatory drug testing.

Most drug testing programs for police officers, firefighters and teachers, as well as federal workers, have been put on hold across the nation until the Supreme Court hands down a ruling.

No Clear Stand by Courts

Lower courts are split on the issue. Some have ruled that the Fourth Amendment’s ban on unreasonable searches prohibits the government from testing any individual without some evidence that he or she uses drugs. Others, however, have concluded that the government’s need to eradicate drug use outweighs this intrusion on an employee’s privacy.

The first case before the high court concerns Federal Railroad Administration rules that require train crews to be tested for drugs and alcohol after an accident.

“What is at stake here is the very lives, the health, safety and property of railway employees and citizens,” Atty. Gen. Dick Thornburgh said in a rare personal appearance by the nation’s chief law enforcement officer before the high court.

Government lawyers cited a January, 1987, accident involving an Amtrak train near Baltimore in which 17 persons were killed. Investigators determined that the engineer of a Conrail train that had run past warning lights and moved into the Amtrak train’s path had marijuana and PCP in his system.

But attorney Lawrence Mann, representing railroad workers who filed suit, argued that the testing program is ineffective and unfair because it cannot “demonstrate impairment on the job.” The urine tests show only that a drug has been ingested in the past, he said.

Justices Skeptical

The justices were skeptical of that distinction. “Isn’t someone who uses cocaine more likely to be someone who uses cocaine on the job? Isn’t it reasonable for the train company to want to know that?” Justice Antonin Scalia asked.

The second case focuses on mandatory urine testing for U.S. Customs Service employees seeking promotions into “sensitive” positions.

Solicitor General Charles Fried, the government’s top courtroom lawyer, acknowledged during the high court argument that virtually none of these employees are drug users. But the testing gives the public “a symbolic assurance” that those who are “on the front line in the war on drugs” are not themselves drug users.

Attorney Lois Williams, representing Customs Service employees, said that the Fourth Amendment does not permit “dragnet searches of innocent persons.” Testing of more than 3,600 Custom employees turned up only five positive samples, indicating, she said, that the work force is “99.9%” drug free.

Humiliation Claimed

In recent years, the high court regularly has ruled for the government in cases involving drugs. The outcome in these cases may turn on whether the justices believe mandatory urine testing is “a humiliating invasion of privacy,” as one lawyer for employees asserted.

Several justices disputed that notion Wednesday. Justices Thurgood Marshall and Harry A. Blackmun pointed out that the routine physical examination required for most jobs includes giving a urine sample. “I don’t understand this supersensitivity,” Blackmun said.

Scalia noted also that federal judges must disclose their finances, even if there is no suggestion of financial improprieties. It would be much less an invasion of his privacy, Scalia said, to undergo a confidential drug test than to “publish my entire financial record.”

Rulings in the cases (Burnley vs. Railway Labor Executives, 87-1555, and National Treasury Employees vs. Von Raab, 86-1879) are expected in the spring.