Drug-Test Decisions

Two rulings by the U.S. Supreme Court last week began the process of delineating how far the federal government can go in using blood and urine tests to help curb drug abuse on the job.

These cases have propelled the court into a new and perplexing area of constitutional law. In one decision, the majority made a convincing argument that the need to ensure the safety of railway passengers supersedes traditional search-and-seizure strictures. In the other ruling, the minority made what seems to us a persuasive argument that, by approving testing as a condition of employment, the court had done damage to Americans’ freedom from unreasonable searches.

In the first case, Skinner vs. Railway Labor Executives, the court upheld a federal regulation directing that all crew members of trains involved in serious accidents be tested for drug use. In its ruling, the court acknowledged that, in most instances, the probable cause which makes a search legal must derive from a suspicion of individual wrongdoing.

However, Justice Anthony Kennedy, who wrote the majority opinion, argued that train crews have a diminished right to privacy because they “discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.”

In the second case, National Treasury vs. Von Raab, the court decided that the U.S. Customs Service could make drug tests a condition of employment in some jobs. Here, the reasoning of the minority was more compelling.

Writing in dissent, Justice Antonin Scalia called the Customs Services program “a kind of immolation of privacy and human dignity in symbolic opposition to drug use . . . Symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.”