Court OKs Some U.S. Drug Tests : Gives Government Broad Power to Check Public Safety Workers

The Supreme Court, in its first ruling on the constitutionality of drug testing, Tuesday gave the government broad power to test employees who are entrusted with public safety or sensitive information.

In two cases, the high court directly upheld federally mandated urine testing of railway workers and Customs Service employees, and its opinions appear to permit screening of police officers, firefighters, air traffic controllers, bus drivers, nuclear plant workers and even some white-collar workers.

“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 individual employees, wrote Justice Anthony M. Kennedy, the court’s newest member.

Bush Administration officials immediately hailed the long-anticipated decisions as a landmark in the government’s war against drugs. Many drug testing programs have been on hold while the legal challenges were pending.

Called ‘Heartening’

The rulings are “a significant first step in validating what had proved to be a useful program” in eradicating drugs in the workplace, Atty. Gen. Dick Thornburgh said at a press conference. It is a “heartening result for those interested in furthering the battle against drug abuse in the United States.”

However, civil liberties advocates and labor union leaders decried what they called the most significant court blow to citizens’ privacy rights in years.

“The court has sacrificed the rights and liberties of Customs Service employees in our country’s nebulous fight against illegal drugs,” said Robert Tobias, president of a union representing Customs Service workers.

Ed Chen, staff counsel of the American Civil Liberties Union in Northern California, said: “We’re disappointed in the decisions. They permit testing without reasonable suspicion or probable cause. We feel that a basic Fourth Amendment principle has been dispensed with here.”

And, said Peter Arenella, professor of constitutional law at UCLA: “The customs case is far more significant than the railway case. Its significance lies in the fact that the court is willing to justify, and find reasonable, an invasion of privacy rights on the basis of a generalized concern to promote public confidence in government employees who are in sensitive drug-interdicting positions.

“Once again,” he added, “the Supreme Court has balanced citizens’ individual rights against society’s need for efficient and effective crime control, and once again the balance tips in favor of the government.”

The rulings have no direct impact on companies or employees in the private sector, because the constitutional provision at issue in the cases--the Fourth Amendment--only forbids “unreasonable searches and seizures” by government officials.

New Screening Seen

But federal and union officials said that they expect the court action to spur a new surge in drug screening programs in government agencies and industry nationwide. A number of police forces, transit agencies and other public entities have proposed instituting drug tests for at least some of their workers and job applicants.

While the court opinions clear up doubts about many drug testing programs commonly imposed in recent years, they do not answer all the questions. The opinions say nothing about random testing of workers.

In the two cases before the court, the railroad workers were tested only after a train accident, while Customs Service employees were tested if they sought promotions to jobs that involved seizing drugs or carrying a gun.

In contrast, the Bush Administration is seeking to require 350,000 federal workers in sensitive jobs to submit to random tests.

Strong Language

But in its strong language upholding the legal justification for screening, the court suggested less concern about the method of screening than about the nature of jobs for which it would be used.

The railway workers operate potentially “lethal” equipment, while the Customs Service workers are “our nation’s first line of defense” in the war on drugs, Kennedy wrote. Such employees “reasonably should expect effective inquiry into their fitness and probity,” he said.

Some lawyers said that they expect the high court to clarify which jobs and circumstances do not warrant drug testing as it rules on other screening programs on a case-by-case basis.

“We believe the great majority of federal workers will be spared the indignity of urine testing according to the court’s decision,” said Tobias, president of the National Treasury Employees Unions, which filed the legal challenge against the customs’ testing program.

Cites Car Accidents

But other union lawyers said that the court appears ready to allow much wider testing. “What’s to prevent the government from requiring that everyone who is involved in an auto accident or is injured on the job be tested for drugs?” asked Washington attorney Lawrence Mann, who represented the railway workers. “That’s about the same situation we had with the railroad workers.”

The high court upheld the testing of railway workers on a 7-2 vote and the customs employees by a 5-4 margin.

The railway decision (Skinner, Transportation Secretary, vs. Railway Labor Executives, 87-1555) overturned a 2-1 ruling by the U.S. 9th Circuit Court of Appeals in San Francisco last year that declared that drug and alcohol testing of rail workers after accidents was unconstitutional, except when supervisors had some “individual suspicion” that an employee was impaired.

The screening had been imposed by the Federal Railroad Administration in 1985 in response to a rash of accidents blamed on drunkenness. Two years later, 16 Amtrak passengers were killed near Baltimore when a Conrail engineer ran his locomotive through a stop signal and onto the tracks in front of the speeding train. A post-accident test found that the Conrail engineer and his brakeman were under the influence of drugs.

Marshall Dissents

In a dissent to the high court’s majority opinion, Justice Thurgood Marshall, joined by William J. Brennan Jr., denounced the use of “dragnet blood and urine testing” and said that he feared the “first and worst casualty of the war on drugs will be the precious liberties of our citizens.

“Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great,” Marshall wrote.

The second case, involving the Customs Service workers, proved more difficult for the court because there was no evidence of a drug problem in the agency. U.S. Customs Commissioner William von Raab, when he initiated a urine testing requirement in May, 1986, said that he believed his employees were “largely drug-free.” During the first five months of testing, 3,663 employees were tested for drugs and only five registered positive, the court was told.

Bribery, Blackmail

Nevertheless, the court approved the program. “The almost unique mission of the (Customs) service” to curb the smuggling of drugs into the country “gives the government a compelling interest in ensuring that many of these employees do not use drugs even off-duty, for such use creates risks of bribery and blackmail,” Kennedy said in the case (NTEU vs. Von Raab, 86-1879).

Justice Antonin Scalia, a conservative appointee of former President Ronald Reagan, strongly dissented, joined by Justices John Paul Stevens, Marshall and Brennan.

He criticized the majority for accepting the government’s “feeble justifications” for the Customs Service testing program without evidence of “even a single instance” of drug abuse in the agency. Von Raab’s testing program was simply “an exercise in symbolism,” Scalia said. By upholding it, “the court exposes vast numbers of public employees to this needless indignity,” he said.

Staff writers Ronald J. Ostrow in Washington and Henry Weinstein in Los Angeles contributed to this story.

DRUG TESTING IN THE FEDERAL GOVERNMENT Before Tuesday’s Supreme Court decision, approximately 50,000 federal employees were subject to random drug tests. That number now is expected to increase to 350,000. Tests may be authorized by federal agencies for employees in “critical and sensitive” positions, according to a 1986 executive order.

Agencies with random testing Percent of already under way: employees subject Department of Transportation 49% Department of the Army 9 Secret Service 100 Office of Personnel Management 10

Some agencies with testing on hold Percent of before Supreme Court decision: employees subject U.S. Marshals Service 100% Office of the Joint Chiefs of Staff 100 Executive Office of the President 77 Central Justice Department 45 Department of the Navy 25 Department of the Interior 23 Labor Department 16 NASA 4

Source: Department of Justice.