Supreme Court Boosts Glendale Drug Testing

The U.S. Supreme Court on Monday declined to interfere with Glendale’s requirement that job applicants undergo drug tests, a decision hailed by city governments but denounced by unions.

The Glendale case was one of dozens announced by the high court on the first day of its fall term.

Glendale’s requirement that applicants for all municipal jobs submit to a drug test had passed muster with the California Supreme Court in January--a ruling that stands because of the Supreme Court’s action Monday.

By declining to review the state decision, the federal high court has also allowed Glendale to drug test certain city employees seeking promotions, depending on the job’s risk level, among other factors.

While union leaders decried the Supreme Court’s decision not to hear the case, they also expressed hope that further challenges to Glendale’s drug-testing policy will be filed.

“The decision was probably not in the best interest of the employees,” said Zizette Ayad, president of the 900-member Glendale City Employees Union. “But the court did what it did, and right now there’s nothing we can do. I hope there is something to challenge later, after we’ve read through this ruling.”

Many cities in the state watched the case closely and filed friend-of-the-court briefs on behalf of Glendale, said Joanne Speers, general counsel for the League of California Cities.

“It’s always hard to speak for all cities in the state, but basically, they are fairly comfortable with the state Supreme Court’s decision, which now stands,” she said. “Their primary concern was with the ability to do pre-employment testing, and they got it. They’re also comfortable with the standards the court used for pre-promotional testing.”

The California Supreme Court, in its January ruling, had modified lower-court rulings by saying that some city workers seeking promotions could be tested, but only in cases in which the city could provide “sufficient justification to do so,” said Ron Braden, Glendale’s chief assistant city attorney.

Such justification, he said, included the risk level of a particular job and the danger it poses to others as well as the personnel histories of the applicants.

U.S. Supreme Court justices have upheld drug testing for railroad workers whose jobs affect public safety, for customs agents who enforce anti-drug laws and for student athletes in public schools.

“I’m happy, you better believe it,” Braden said. “It’s been 12 years now, from when I first joined the city attorney’s office and they gave me this little case. Twelve years later and a lot of work and finally we’re at closure.”

The legal case began when Glendale resident Lorraine Loder challenged a city policy begun in 1986 to detect drug abuse among job applicants, claiming it was a violation of the 4th Amendment to the U.S. Constitution--an unreasonable search.

Loder, a private attorney, was later joined in her challenge by the American Civil Liberties Union.

“It’s disappointing,” said Marvin Krakow, who argued the case for Loder and the ACLU. Krakow said he fears the ruling could embolden other states to stiffen drug-testing requirements.

“The issue of employment drug testing has significance beyond California,” he said. “Because of its size, California has a lot of influence indirectly elsewhere. While this affects California, it has persuasive value outside the state.”

While the case history spanned more than a decade and reached the highest level of the state court system, the U.S. Supreme Court’s decision not to take up the case is not a final or sure sign of anything, according to Krakow.

“When [the U.S. Supreme Court] denied review, it had no meaning other than the justices decided not to review it now,” Krakow said. “Someone could challenge the same issue next year and they might take it. All it means is that they didn’t want to address this issue at this time.

“Even if Glendale chooses to go ahead with testing under what the courts ruled with [this case], it would be subject to the restraints” of a Georgia law overturned by the Supreme Court in its last term, Krakow said.

In that case, he said, the court struck down, “with very strong language,” Georgia’s law requiring political candidates to submit to drug testing, and in doing so set limits on such tests.

“A government employer in California can do what the state Supreme Court said in [the Glendale case]; they can test across the board for drugs on new applicants” and certain applicants for promotion, Krakow said. “[The Georgia case] said that there can be no testing without suspicion of drug use or job-safety issues.”

Nonetheless, he said, other states and cities could craft drug-testing requirements that are more strict than Glendale’s without necessarily provoking action by the Supreme Court.

Except for the 1986-88 period, the city has been testing most job applicants, and will soon extend testing, Braden said.

Braden agreed with Krakow’s conclusion that the city can test applicants for promotion, but said the Georgia case has nothing to do with it. The U.S. Supreme Court denied review of Glendale’s drug-testing requirement with the Georgia case fresh on the justices’ minds, Braden said. “This has nothing to do with it. We won by the Supreme Court deciding not to review this case.”

* SUPREME COURT

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