Order Code RL31648
Report for Congress
Received through the CRS Web
Governmental Drug Testing Programs:
Legal and Constitutional
November 20, 2002
Charles V. Dale
American Law Division
Congressional Research Service ˜ The Library of Congress
Governmental Drug Testing Programs: Legal and
Constitutional law on the subject of governmentally mandated drug-testing is
primarily an outgrowth of the Fourth Amendment prohibition on unreasonable
searches and seizures. Judicial exceptions to traditional requirements of a warrant
and individualized suspicion for “administrative” searches have been extended to
random drug-testing of public employees, school students, and most recently, state
welfare recipients, where the government is able to demonstrate a “special need”
beyond the demands of ordinary law enforcement. In the public employment setting,
however, special needs analysis has largely been confined to relatively narrow
circumstances directly implicating “compelling” public safety, law enforcement, or
national security interests of the government. More generalized governmental
concerns for the “integrity” or efficient operation of the public workplace have
usually not been deemed sufficient to justify interference with the “reasonable
expectation of privacy” of workers or other individuals to be tested.
The constitutional parameters of “special needs” analysis is outlined in a series
of Supreme Court rulings. In 1989, the U.S. Supreme Court upheld post-accident
drug and alcohol testing of railway employees after major train accidents or incidents,
Skinner v. Railway Labor Executives Ass'n, and of U.S. Customs employees seeking
promotion to certain "sensitive" jobs involving firearms use, drug interdiction duties,
or access to classified information, National Treasury Employee's Union v. Von
Raab. These decisions established that “compelling” governmental interests in
public safety or national security may, in appropriate circumstances, override
constitutional objections to testing procedures by employees whose privacy
expectations are diminished by the nature of their duties or workplace scrutiny to
which they are otherwise subject. In Veronia School District v. Acton, the Supreme
Court first approved of random drug testing procedures – for high school student
athletes rather than public employees – a holding that it recently extended to permit
random drug testing of students participating in non-athletic extracurricular activities
as well. However, the Court distinguished earlier rulings when, in Chandler v.
Miller, it voided a Georgia law requiring drug testing of candidates for state office
because no "special need" substantial enough to warrant suspicionless searches was
Generally, the precedents suggest that substantial constitutional difficulties
probably confront any broad-based testing program that is not limited to specific
occupational categories or, in other regulatory contexts, to persons for whom the
government is able to demonstrate some public safety, national security, or other
“compelling” need to test. For this reason, proposals for universal testing as a
requirement for drivers’ license applicants, welfare recipients, or other beneficiaries
of state or federal programs could face formidable constitutional hurdles. The
legality of mandatory testing in these other regulatory contexts, however, may depend
upon the range of governmental interests that the Court ultimately declares to be
“compelling” for Fourth Amendment purposes, and how close the required “nexus”
to such interests must be to justify random testing of specific individuals or groups.
Federally Mandated Workplace Drug-Testing Programs . . . . . . . . . . . . . . . . . . . 3
Personal Privacy versus the Public Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Workplace Drug Testing and the U.S. Supreme Court . . . . . . . . . . . . . . . . . . . . . 8
Employee Drug-Testing After Skinner and Von Raab . . . . . . . . . . . . . . . . . . . . . 12
National Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Public Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Preemployment Drug-Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Student Drug Testing in the Public Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Suspicionless Drug Testing in Other Regulatory Contexts . . . . . . . . . . . . . . . . . 26
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Governmental Drug Testing Programs:
Legal and Constitutional Developments
One outgrowth of the nation’s “war on drugs” has been a proliferation of
governmental initiatives – federal, state, and local - to detect and deter illegal drug
use in the workplace, the schools, and by recipients of social welfare and other public
benefits. Since the late 1980's, the federal government has conducted “random”
drug tests of executive branch employees in “sensitive” job positions, and has
implemented similar procedures for public and private employees in transportation
and other safety or security-related industries. Aiding these efforts are state and
local governmental testing programs for police officers, firefighters, prison guards,
teachers, and other personnel with public safety responsibilities.
Beyond employment, states and localities have required other individuals to
submit to drug testing, such as welfare recipients and students in the public schools.
The Louisiana legislature, for example, has declared a “state of emergency” to exist
in that state as the result of the “spiraling increases of abuse of illegal substances by
its citizens,” and it further found that “such illegal drug abuse presents a clear and
present danger to the health, welfare and security of the state, its citizens and
government.”1 Accordingly, it directed the Commission on Administration to
establish a random drug testing program for anyone receiving funds or “anything of
economic value” from the state, state contracts and loans included. And a Michigan
program for “suspicionless” drug testing of welfare recipients recently obtained
federal circuit court approval.2 Conceivably, similar requirements could be imposed
as a condition to any governmental benefit – to renew a driver’s licence, perhaps,
or to obtain a hunting permit - but not without raising substantial constitutional
Constitutional challenges to “suspicionless” or random governmental drug
testing most often focus on issues of personal privacy and Fourth Amendment
protections against “unreasonable” searches and seizures. Generally speaking,
government is required by the Fourth Amendment to obtain warrants based on
probable cause in order to effectuate constitutional searches and seizure. An
exception to ordinary warrant requirements has gradually evolved, however, for cases
where a “special need” of the government, not related to criminal law enforcement,
is found by the courts to outweigh any “diminished expectation” of privacy invaded
by the search.
In 1989, the U.S. Supreme Court upheld post-accident drug and alcohol testing
of railway employees after major train accidents or incidents, Skinner v. Railway
La. R.S. 49: 1021.
Marchwinski v. Howard, 309 F.3d 330 (6th Cir. 2002).
Labor Executives Ass'n,3 and of U.S. Customs employees seeking promotion to
certain "sensitive" jobs involving firearms use, drug interdiction duties, or access to
classified information, National Treasury Employee's Union v. Von Raab.4 These
rulings make clear that “compelling” governmental interests in public safety or
national security may, in appropriate circumstances, override constitutional
objections to testing procedures by employees whose privacy expectations are
diminished by the nature of their duties or workplace scrutiny to which they are
otherwise subject. In Veronia School District v. Acton,5 the Supreme Court first
approved of random drug testing procedures – for high school student athletes rather
than public employees – after it had earlier left standing lower court decisions
allowing for suspicionless testing of police officers,6 transit employees,7 nuclear
power plant employees,8 Justice Department lawyers who hold top-secret security
clearances,9 and Army civilian drug counselors.10 Veronia was recently extended by
the Court to permit random drug testing of students participating in non-athletic
extracurricular activities as well.11 However, the Court distinguished earlier rulings
when, in Chandler v. Miller,12 it voided a Georgia law requiring drug testing of
candidates for state office because no "special need" substantial enough to warrant
suspicionless searches was shown.
There are no federal constitutional limits on the ability of private employers or
other entities to conduct what would otherwise be an unreasonable drug test. The
Fourth Amendment and other constitutional safeguards apply only to governmental
action – federal, state, or local – or private conduct undertaken at the direction of the
government. Presently, however, thirty-two states have enacted employment drug
or alcohol testing laws prescribing under what conditions and circumstances
employees in the private workplace may be tested. These range from “protective
laws” banning all random or blanket testing to legislation encouraging employers to
test. In California, for example, the state constitution specifies a right to privacy that
489 U.S. 602 (1989).
489 U.S. 656 (1989).
520 U.S. 305 (1995).
Policemen's Benevolent Association v. Township of Washington, 850 F.2d 133, cert.
denied, 490 U.S. 1004 (1989).
United Transportation Union v. Southeastern Pennsylvania Transportation Authority
(SEPTA), 863 F.2d 1110 (3d Cir.), cert. denied, 109 S.Ct. 3209 (1989)(approved random
urinalysis testing of 2,600 transit “operating engineers” in “safety sensitive” positions over
a one-year period, and breathalyzer tests for 5,400 such workers annually).
Alverado v. Washington Public Power Supply Systems and Bechtel Construction, Inc., 111
Wash.2d 424, 759 P.2d 427 (Wash. 1988), cert. denied, 490 U.S. 1004 (1989).
Bell v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989), cert. denied 493 U.S. 1056 (1990).
National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C. Cir. 1989), cert.
denied, 496 U.S. 936 (1990).
Board of Education of Independent School District No. 92 of Pottawatomie County v.
Earls, 122 S.Ct. 2559 (2002).
520 U.S.305 (1997).
applies not only to governmental action, but to private conduct as well. Iowa,13
Vermont14 and Rhode Island15 prohibit all testing without probable cause or
reasonable suspicion, while Oklahoma,16 Minnesota,17 Maine,18 and Connecticut19
permit random testing only of employees in “safety-sensitive” positions. The laws
in these states also mandate confirmatory testing, use of certified laboratories,
confidentiality of test results and other procedural protections. A few states give
workers’ compensation premium discounts to employers who adopt drug and alcohol
testing programs.20 In some jurisdictions, an employee may be discharged for a firsttime positive test result, while others require the employee be provided the
opportunity for treatment first. Even in states with no drug or alcohol testing law,
however, collective bargaining agreements may restrict employers’ testing options.
After a brief review of federal drug-free workplace programs presently in effect,
this report examines the current state of constitutional law on the subject of
governmentally mandated drug-testing in employment, for social welfare eligibility,
and of students in the public schools.
Federally Mandated Workplace Drug-Testing
The Federal Government by statute or executive order has adopted drug-free
workplace requirements applicable to federal executive branch agencies, employment
in various federally regulated industries, federal contractors and recipients of federal
financial assistance. E.O. 12564, issued on September 15, 1986, requires programs
to be established by each department or agency within the executive branch to test
for illegal drug use by federal employees in sensitive positions and for voluntary
employee drug-testing.21 A “sensitive” position is one that an agency head designates
special sensitive, critical sensitive, or noncritical-sensitive under the Federal
Personnel Manual or sensitive under the executive order. It also includes an
employee who has been or may be granted access to classified information,
individuals serving under Presidential appointments, law enforcement officers, and
other positions that the agency head determines “involve law enforcement, national
security, the protection of life and property, public health or safety, or other functions
Iowa Code § 730.5 et seq.
Vt. Stat. Ann. 21 § 511 et seq.
R.I. Gen. Laws §§ 28-6.5-1 and 28-6.5-2.
Okla. Stat. § 551.
Minn. Stat. §§ 181.951 et seq.
Me. Rev. Stat. 26 §§ 681 et seq.
Conn. Gen Stat. §§ 31-51 et seq.
E.g. Ala. Code §§ 25-5-330 et seq.; S.C. Code §§ 44107-10 et seq.; Tenn. Code Ann. §§
50-9-103 et seq.; and Wash. Rev. Code §§ 49.82.010 et seq.
51 Fed. Reg. 32889 (Sept. 17, 1986).
requiring a high degree of trust or confidence.” In addition, an executive branch
employee may be tested based on “reasonable suspicion” of illegal drug use, during
an authorized investigation of an accident or unsafe practice, or to follow-up
counseling or rehabilitation for illegal drug use through an employee assistance
program. Applicants for employment may also be tested. Technical standards to
govern specimen collection, scientific analysis, laboratory certification, medical
review of positive test results, and access to records are set forth in guidelines
promulgated by the Department of Health and Human Services.22
Private employers obtaining federal contracts or grants must also take specified
steps to maintain a drug-free workplace. The Drug-Free Workplace Act of 198823
covers all entities receiving contract awards of $25,000 or more, all contracts
awarded to individuals, and all recipients of federal grants, regardless of grant
amount. Specifically, contractors and grantees must certify to the contracting or
grantmaking agency that they will provide a drug-free workplace by publishing a
statement prohibiting unlawful manufacture, distribution, possession, or use of a
controlled substance in the workplace, and specifying actions that will be taken
against offending employees. Also mandated are drug-free awareness programs to
inform employees of the dangers of workplace drug abuse and of available drug
counseling, rehabilitation, and employee assistance programs. Employees are to be
required, as a condition of employment, to report any criminal conviction for drugrelated activity in the workplace and the employer, in turn, must notify the
contracting or granting agency and impose appropriate sanctions upon convicted
employees. Federal contracts or grants could be terminated or suspended in cases
where the employer fails to make a “good faith” effort to maintain a drug-free
workplace. The Act, however, does not mandate, or even mention, testing employees
for illegal drug use.24
The Drug-Free Workplace Act of 1998 is the small business counterpart to the
1988 Act described above. The 1998 Act established a demonstration project of
grants and financial incentives to encourage development of drug-free workplace
programs small business employers. It augmented the earlier law by requiring such
programs to include a written policy prohibiting certain substances in the workplace,
two hours of substance abuse training for employees, additional training for
employees who are parents, employee assistance programs, and employee drug
testing. The 1998 Act mandates that small business employers administer drug tests
through a laboratory approved by HHS, and that positive results be confirmed and
reviewed by a medical review officer. Because the 1988 Act makes no explicit
reference to drug testing, the new law marks the first time that Congress has
authorized federal funding for drug testing programs in private workplaces.
See CRS Report 98-681 GOV, Drug Testing in the Federal Workforce: Current Status
41 U.S.C. §§701 et seq.
More detailed information on how federal contractors and grantees must comply with the
provisions of the Drug-free Workplace Act may be found in implementing rules issued by
the Office of Management and Budget at 54 Fed. Reg. 4946 (Jan. 31, 1989).
While the Department of Defense is obligated to implement the provisions of
the 1988 Drug-Free Workplace Act, the agency has special requirements concerning
certain contracts issued after October 31, 1988, as implemented through its Federal
Acquisition Regulations Supplement. All contracts involving access to classified
information, and any other domestic contract the agency's contracting officer
determines appropriate for reasons of national security or health and safety must
include a provision obligating the contractor to establish a program for testing
employees in “sensitive positions” for the use of illegal drugs as part of the
contractor’s duty to maintain a drug-free workplace. The extent of, and criteria for,
such testing are to be determined by the contractor, based on the nature of the work
being performed, the employee's duties, the efficient use of contractor resources, and
the risks to health, safety, or national security that could result from poor employee
The Civil Space Employee Testing Act of 199125 requires the establishment of
a program to test for use of alcohol and controlled substances by employees of the
National Aeronautics and Space Administration (NASA) whose duties include
responsibility for safety-sensitive, security, or national security functions. NASA also
must issue regulations which require the establishment of a similar testing program
by NASA contractors for alcohol and controlled substance use by their employees
having such responsibilities. Both of these required testing programs must provide
for pre-employment, reasonable suspicion, random, and post-accident testing, and
they may also include periodic recurring testing if warranted. Furthermore, the
testing procedures must incorporate the Department of HHS mandatory testing and
recordkeeping procedures applicable to federal workplace drug-testing programs
under E.O. 12564.
Mandatory drug and alcohol testing regulations apply to transportation workers
whose jobs have safety and security implications. The Omnibus Transportation
Employee Testing Act of 199126 requires substance abuse testing, both for alcohol
and unlawful drugs, by numerous employers under the jurisdiction of the Department
of Transportation. Covered employees in safety sensitive positions generally include
commercial truckers, air carrier flight and support personnel, railroad employees, and
individuals employed by commercial marine vessels, mass transit systems, and
pipeline facilities transporting hazardous liquids. Each DOT operating agency
maintains its own list of positions considered safety-sensitive. Five types of drugtesting are authorized by the Act: preemployment, reasonable suspicion, random,
post-accident, and periodic recurring. Employees who test positive for drug or
alcohol use may be subject to disqualification for dismissal from employment. As
part of their substance abuse testing program, employers must also establish drug
treatment and prevention programs for their employees.
Early in the 106th Congress, a clause was added to Rule I, Section 13 of the
House Rules making the Speaker of the House, in consultation with the minority
leader, responsible for developing a drug testing program that follows the executive
branch model. Specifically, the program “may provide” for the testing of any
42 U.S.C. § 2473c.
P.L. 102-143, Title V, 105 Stat. 952 (1991).
member, officer, or employee of the House, and “otherwise shall be comparable in
scope to the system for drug testing in the executive branch pursuant to Executive
Order 12564.” On February 3, 1999, the Committee on House Administration
approved resolution 106-1-2 permitting Members and committees at their own
discretion to implement drug testing programs for themselves and their staffs. House
officers (the chief administrative officer, clerk of the House, sergeant at arms) and
inspector general were directed to develop a drug testing plan for employees under
Personal Privacy versus the Public Interest
The constitutional focus of governmental drug-testing litigation – whether in
the employment, public education, or other administrative context – has been the
Fourth Amendment, which protects the “right of the people” to be free from
“unreasonable searches and seizures” by the government. This constitutional stricture
applies to all governmental action – federal, state, and local – by its own force or
through the Due Process Clause of the Fourteenth Amendment.28 Thus, while private
actors are not directly affected, the actions of government as employer are subject to
Fourth Amendment scrutiny.29 Governmental conduct will generally be found to
constitute a “search” for Fourth Amendment purposes where it infringes “an
expectation of privacy that society is prepared to consider reasonable.”30 If a search
or seizure has occurred, the court must then determine whether the government's
action was reasonable under the circumstances.
Historically, the Court has applied various constitutional tests of reasonableness
depending on the nature of the search and the underlying governmental purpose. The
most demanding test is reserved for searches prompted by the normal needs of
criminal law enforcement. Based on the literal text of the Fourth Amendment, and
to safeguard individual interests in personal privacy, probable cause supported by a
warrant is the usual constitutional prerequisite for a criminal search.31 Even in
circumstances where warrantless searches are permitted, they ordinarily “must be
based on ‘probable cause’ to believe that a violation of the law has occurred.”32
Nevertheless, the Supreme Court has determined that neither a warrant nor probable
cause are invariably required and has approved of, or let stand, “suspicionless”
See RS20689, Drug Testing in the House of Representatives: Background, Legislation and
Policy, (CRS Rept updated regularly).
Mapp v. Ohio, 367 U.S. 643 (1961).
O'Connor v. Ortega, 480 U.S. 709 (1987).
United States v. Jacobsen, 466 U.S. 109, 113 (1984).
“[O]ne governing principle, justified by history and by current experience, has been
followed: except in certain carefully defined classes of cases, a search of private property
without proper consent is ‘unreasonable’ unless it has been authorized by a valid search
warrant.” Camara v. Municipal Court, 387 U.S. 523, 528-29 (1967).
New Jersey v. T.L.O., 469 U.S. 325, 340 (1985).
searches--sobriety checkpoints,33 border searches,34 polygraph examinations,35 metal
detector screening36--in some circumstances.
The Fourth Amendment protects against both civil and criminal investigatory
processes, though the need for protection against government intrusion decreases if
the investigation is entirely unrelated to criminal law enforcement.37 In such
circumstances, a rule less restrictive on the government, based on “reasonable
suspicion” of a civil or regulatory law violation, has become the constitutional norm.
However, an exception from even this less demanding standard has been recognized
for administrative searches by the government to enforce compliance with a
regulatory scheme by persons engaged in a “highly regulated industry” on the theory
that the very existence of the regulatory program diminishes reasonable expectations
of privacy of those involved in the industry.38 In such situations, a Fourth
Amendment standard based on a balancing test has been crafted by the Court. This
“special needs” approach appears to confer optimal power on the government to
search where “compelling” reason exists and correspondingly less protection to the
individual's “diminished expectation of privacy.”
Even prior to Skinner and Von Raab there was virtual unanimity among the
federal courts that governmental drug-testing constituted a search that could
constitutionally be justified on reasonable suspicion grounds.39 No similar consensus
Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990).
United States v. Martinez-Fuerte, 428 U.S. 543 (1976)(upholding suspicionless searches
that occur at fixed checkpoints near the border).
See Stehney v. Perry, 101 F.3d 925 (3d Cir. 1996)(rejecting a claim that a polygraph test
violates the Fourth Amendment).
See, e.g. United States v. Vigil, 989 F.2d 337 (9th Cir), cert. denied, 510 U.S. 873 (1993).
South Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976)(When police undertake “routine
administrative caretaking functions” like inventory searches, particularly when they are not
a subterfuge for criminal investigations, “[t]he probable-cause approach” and its
concomitant requirement of a warrant are not very “helpful.”); Wyman v. James, 400 U.S.
309, 317-325 (1971)(Visits by government officials to the homes of welfare recipients for
the purpose of evaluating their eligibility for benefits do not abridge the Fourth
Donovan v. Dewey, 452 U.S. 594, 600 (1981).
The decisions indicate that “[r]easonable suspicion is a lesser standard than probable
cause” but that some evidence of actual illicit drug use by an individual employee or
employees remains a constitutional prerequisite. “There is a reasonable suspicion when
there is some articulable basis for suspecting that the employee is using illegal drugs.”
Lovvorn v. City of Chattanooga, 846 F.2d 1539 (6th Cir. 1988). Put another way, “there is
reasonable suspicion when there is some quantum of individualized suspicion as opposed
to an inarticulate hunch,” and this may be “based on statements made by other employees
and tips from informants. Even probable cause can be based on informants' tips when the
totality of the circumstances indicates a fair probability of accuracy.” E.g., Smith v. White,
666 F. Supp. 1085 (E.D.Tenn. 1987). Some differences in judicial viewpoint may remain,
however, as to whether the evidence must necessarily relate to individual as opposed to
prevailed, however, as to the constitutional propriety of mandatory testing in other
circumstances and, particularly, where random testing is imposed as a deterrent to
illegal drug use by public employees or for some other governmental objective
unrelated to criminal law enforcement. Although not random testing cases, the
special needs analysis of Skinner and Von Raab was subsequently applied by the
lower federal courts to justify suspicionless, random testing provided that the
requisite nexus between an employees' duties and public safety or other compelling
governmental need was demonstrated, an approach consistent with Acton.
Workplace Drug Testing and the U.S. Supreme
As noted, the U.S. Supreme Court has ruled on Fourth Amendment issues raised
by workplace drug testing procedures on three occasions. Skinner v. Railway Labor
Executives Ass'n40 upheld post-accident drug and alcohol testing of railway
employees involved in major train accidents and incidents, while a program of onetime testing of U.S. Customs employees who apply for promotion to “sensitive jobs”
involving carriage of firearms and drug interdiction duties was approved in National
Treasury Employee's Union v. Von Raab.41 Although random testing was not
involved, these decisions together establish that “compelling” governmental interests
in public safety or national security may, in appropriate circumstances, override the
constitutional objections of employees who have a “diminished expectation of
privacy” due to the nature of duties they perform or workplace scrutiny to which they
are otherwise subjected. Chandler v. Miller42, on the other hand, voided a Georgia
law requiring drug testing of candidates for state office because no “special need”
substantial enough to warrant suspicionless searches was shown. Random testing
procedures applied to student athletes and participants in extracurricular public
school activities have also been approved by the Court in cases discussed in a
subsequent section of this report.
In Skinner, a panel of the Ninth Circuit had voided on Fourth Amendment
grounds Federal Railroad Administration regulations requiring breath, blood, and
more generalized illegal drug use within the public employee group as a whole. Compare,
e.g., Wrightsell v. Chicago, 678 F. Supp. 727 (N.D. Ill. 1988)(“Reasonable suspicion does
not require actual observed behavior,” but it “must be individualized” and “cannot be
directed against an entire group.”) and Penny v. Kennedy, 915 F.2d 1065 (6th Cir.
1990)(“. . .for a mandatory drug test of police officers to be reasonable, there must be some
evidence of a significant, department-wide drug problem or there must be individualized
Supra n. 3.
Supra n. 4.
Supra n. 12.
urine tests of railroad workers who are involved in train accidents.43 A federal
district court had accepted the government's argument that public safety interests
served by the rules outweighed any possible intrusion on privacy rights asserted by
the contesting labor unions. However, because the post-accident drug and alcohol
testing procedure applied to all covered employees without regard to “reasonable
suspicion that a test will reveal evidence of current drug or alcohol impairment,” a
divided appeals court panel struck down the regulation. In so doing, it refused to find
that rail employees enjoy a “diminished expectation of privacy” due to the “heavily
regulated” nature of the railroad industry or that the program fit any of the traditional
judicial exceptions to Fourth Amendment principles.
In reversing, the Supreme Court first held that the entire testing regulation, even
portions applicable to certain employee rule infractions that were merely permissive
rather than mandatory upon the railroads, carried sufficient government
“encouragement, endorsement, and participation” to implicate the Fourth
Amendment considerations. On the merits, Justice Kennedy wrote for the majority
that because “the collection and testing of urine intrudes upon expectations of privacy
that society has long recognized as reasonable,” FRA testing for drugs and alcohol
was a “search” that had to satisfy constitutional standards of reasonableness. The
“special needs” of railroad safety, however, made traditional Fourth Amendment
requirements of a warrant and probable cause applicable to normal law enforcement
“impracticable” in this context. Nor was “individualized suspicion” deemed by the
majority to be a “constitutional floor” where the intrusion on privacy interests are
“minimal” and an “important governmental interest” is at stake. According to Justice
Kennedy, covered rail employees had “expectations of privacy” as to their own
“physical condition” that were “diminished” by “their participation in an industry
that is regulated pervasively to ensure safety.” In these circumstances, the majority
held, it was “reasonable” to conduct the tests, even in the absence of a warrant or
reasonable suspicion that any employee may be impaired.
Justice Kennedy also rejected another line of attack against the challenged tests
which proceeds from the generally accepted scientific and judicial view that standard
test protocols are capable indicators only of prior drug use but are not a measure of
current job impairment or drug influence. Because of this fact, a number of lower
federal courts had voided the EMIT screen and confirmatory GC\MS for not being
reasonably related to legitimate governmental interests in assuring employee fitness
The regulation at issue in Skinner calls for drug and alcohol testing of all covered
employees involved in various events, including: major train accidents (involving a fatality,
release of hazardous material with either evacuation or injury, or $1,000,000 damage to
railroad property); impact accidents (involving a reportable injury or damage to railroad
property of $6,300); and fatal accidents (involving fatality of an on-duty railroad employee).
49 C.F.R. §219.201 (2001). The FRA regulations require that blood and urine samples be
taken from all crew members of a train involved in such an accident or incident as soon a
possible afterwards. Blood samples are to be taken at independent medical facilities by
qualified professionals or technicians. 49 C.F.R. §219.203 (2001). Refusal to provide a
sample results in a nine-month period of disqualification. 49 C.F.R. §219.213 (2001).
or competence.44 In Skinner, however, the majority found the information provided
by the tests to be a valid investigative tool which “may allow the [FRA] to reach an
informed judgment as to how a particular accident occurred.” In addition, opposition
on these grounds “failed to recognize that the FRA regulations are designed not only
to discern impairment but also to deter it,” and according to the majority, the
government “may take all necessary and reasonable regulatory steps to prevent and
deter” forbidden drug use by the covered employees.
In the Von Raab case, decided the same day as Skinner, a Fifth Circuit panel had
upheld drug testing of U.S. Customs Service personnel who sought transfer to certain
“sensitive” positions, namely, those involving drug interdiction, carrying firearms,
or access to classified information, without a requirement of reasonable
individualized suspicion. The testing procedure was administered once, when the
employee sought transfer to the sensitive position, and the Customs Service gave the
qualified applicant five days notice of the test. Thus, the drug test in Von Raab was
conditioned on the employee's own action in seeking a transfer and no adverse
consequence flowed from a later withdrawn transfer application.
In a 5 to 4 ruling, Justice Kennedy again speaking for the majority affirmed the
Customs Service policy with respect to the interdiction of illegal drugs and
employees required to carry firearms. According to the Court, the government has
a “compelling interest” in not promoting drug users to jobs where they could
“endanger the integrity of our Nation's borders or the life of the citizenry.” That
interest outweighs the privacy interests of employees who seek promotions to those
jobs, but who enjoy “a diminished expectation of privacy by virtue of the special
physical and ethical demands of those positions.” Neither the absence of “any
perceived drug problem among Customs employees,” nor the possibility that “drug
users can avoid detection” by temporary abstinence, would defeat the program since
deterrence of “highly hazardous conduct” as much as detection was a “substantial”
justification and the risk of circumvention was “overstated.” However, the Court
found the record insufficient to determine whether searches of employees who would
handle classified information was reasonable. It was not apparent that individuals
in certain positions would actually have access to sensitive information, leading
Justice Kennedy to question whether the category was too broad to meet Fourth
The High Court rulings in Skinner and Von Raab established several
constitutional propositions potentially relevant to the random testing issue. First,
reasonable suspicion was not a constitutional benchmark for all governmental drug
testing and, therefore, may not preclude carefully crafted random testing in the public
sector. Equally important, the balancing test in those cases, based on the “special
needs” of the government for assuring transportation safety and the integrity of the
federal drug interdiction effort, may as readily be transposed to other regulatory
environments where public employees--or, perhaps, applicants for other
governmental benefits--may enjoy a "diminished expectation of privacy." Third, as
E.g., Jones v. McKenzie, 833 F.2d 335, 340 (D.C.Cir. 1987), vacated and remanded sub
nom. Jenkins v. Jones, 490 U.S. 1001 (1989); Railway Labor Executive Ass'n v. Burnley,
839 F.2d 1507 (9th Cir. 1988); Harmon v. Meese, 690 F. Supp. 65 (D.D.C. 1988).
noted above, the Court rejected earlier decisions which had faulted drug testing
methodologies due to their inability to detect present drug impairment as opposed to
simple past drug use. Beyond detection, it appears the government may have a
legitimate interest in deterring employee drug use and that drug test evidence may
be relevant to "compelling" governmental concerns.
The Court in Chandler v. Miller,45 disapproved a 1990 Georgia statute requiring
candidates for Governor, Lieutenant Governor, Attorney General, the state judiciary
and legislature, and certain other elective offices, to file a certification that they have
tested negatively for illegal drug use. The Eleventh Circuit had denied First, Fourth,
and Fourteenth Amendment challenges to the state law and ruled that the “special
needs” balancing test of Von Raab tipped in favor of Georgia's “substantial” interest
in electing drug-free officials. In particular, because the mandated testing could be
administered in a physician's office and because candidates for high office “must
expect the voters to demand some disclosures about their physical, emotional, and
mental fitness for the position,” the appellate panel concluded that any limited
intrusion on a candidate's privacy was outweighed by the state's “sovereign” interest
in determining qualifications for political office.
The Supreme Court reversed by an 8 to 1 margin. Because the majority could
find no “special needs” – equivalent to the public safety or drug interdiction
imperatives of previous cases – to support the Georgia requirement, the state law
was deemed to be outside “the closely guarded category of constitutionally
permissible suspicionless searches.” Specifically rejected were the state's arguments
that the law was justified because the use of illegal drugs calls into question an
official's judgment and integrity, that illegal drug usage jeopardizes the discharge of
public function, and that it undermines the public trust in elected officials. Important
as these interests were, they did not raise vital public safety considerations
comparable to Skinner and Von Raab. Also rebuffed was the state's assertion that the
drug testing program was a matter of state sovereignty. In the majority's view,
“[h]owever well-meant, the candidate drug test Georgia has devised diminishes
personal privacy for a symbol's sake.”
Justice O'Connor, who authored the opinion, noted several factors distinguishing
the Georgia law from drug-testing requirements of earlier cases. First, there was no
"fear or suspicion" of generalized illicit drug usage by state elected officials in the
law's background which might pose a “concrete danger demanding departure from
the Fourth Amendment's main rule.” The majority opinion suggests that while not
an invariable constitutional prerequisite, evidence of historical drug abuse by the
group targeted for testing might “shore up an assertion of special need for a
suspicionless general search program.” Secondly, Justice O'Connor was critical of
Georgia's certification requirement as a “credible” means to detect or deter drug
abuse by public officials. Since the timing of the test was largely controlled by the
candidate rather than the state, legal compliance could be achieved by mere
temporary abstinence. For Justice Ginsburg, a final “telling difference” between the
Georgia case and earlier rulings stemmed from the "relentless scrutiny" to which
candidates for public office are subjected – by the press, the public, and their peers
Supra n. 12.
– as compared to persons working in less exposed work environments. Any drug
abuse by public officials was far more likely to be detected in the ordinary course of
events, making suspicionless testing less necessary than in the case of safety-sensitive
positions beyond the public view.
Chief Justice Rehnquist cast the sole dissenting vote. In his view, it was “only
by distorting” the Court's prior drug-testing jurisprudence that the majority “is able
to reach the result it does.” He argued that rampant drug use in the United States was
a legitimate basis for Georgia's attempt to take steps to prevent drug users from
gaining political office. “Surely,” he urged, “the state need not wait for a drug addict,
or one inclined to use drugs illegally, to run for or actually become governor before
it installs a prophylactic mechanism.”
Employee Drug-Testing After Skinner and Von Raab
Federal courts in the wake of Skinner and Von Raab have generally approved
random or other periodic testing of public employees, or workers in heavily regulated
industries, provided that the specific jobs covered are directly related to “compelling”
public safety, national security, or drug interdiction functions of the government, and
testing is undertaken pursuant to a plan so as to avoid arbitrary application.46 After
Von Raab, the Customs Service program was expanded from frontline drug
interdiction personnel to include random testing of employees in traditional office
environments who had access to databases targeting contraband shipments and
inspections. In NTEU v. U.S. Customs Serv.,47 the D.C. Circuit noted that because
of its link to drug smuggling, the government had an obvious and compelling interest
in preserving the confidentiality of this database which outweighed any privacy
expectations of employees, particularly in light of the intense background checks they
underwent prior to employment. Similarly, random testing has been permitted of
workers in the transportation,48 hospital,49 nuclear power, and civilian chemical
Ford v. Dowd, 931 F.2d 1286 (8th Cir. 1991)(invalidating drug testing of individual police
officer in absence of specific plan, whether applied randomly or routinely, and in absence
of reasonable suspicion of drug use); Jackson v. Gates, 975 F.2d 648 (9th Cir.
1992)(invalidating drug testing of individual police officer in absence of random testing
scheme and in absence or articulable basis for suspecting drug use), cert. denied, 509 U.S.
27 F.3d 623 (D.C. Cir. 1994); See also NTEU v. Hallet, 756 F. Supp. 947 (E.D.N.Y.
1991)(applicants for Customs Service positions with top secret, secret, and confidential
security clearances; NTEU v. Hallet, 776 F. Supp. 680 (E.D.N.Y. 1991)(random testing of
employees directly involved in law enforcement; those with access to or who handle illegal
drugs; those who operate forklifts or motor vehicles; those who carry firearms; chemists
who had access to illegal drugs and student trainees under their supervision).
Cronin v. Federal Aviation Administration, 73 F.3d 1126 (D.C. Cir. 1996)(FAA
regulations on drug and alcohol testing by air carriers); United Food & Commercial Workers
Int'l Union, Local 558 v. Foster Poultry Farms, 74 F.3d 169 (9th Cir. 1995)(drug-testing
program for truck drivers);Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990)(upholding the
testing of airline workers), cert. denied, 498 U.S. 1083 (1991); Railroad Labor Executive
weapons50 industries, and of all federal correctional officers of the Bureau of
Prisons,51 due to the gravity of risk to be averted by the governmental program.
A generalized desire for workplace “integrity,” however, has usually been found
insufficient to warrant random or other routine testing of governmental employees
in the absence of individualized suspicion. In Romaguera v. Gegenheimer,52 for
example, the federal district court ruled that court clerk employees who do not have
unsupervised access to drugs or other criminal evidence are not safety- or securitysensitive workers and therefore cannot be subjected to random drug testing. The
clerk of court had defended the testing policy by arguing that targeted employees held
positions of public trust and were role models for the public. Romaguera's duties
included swearing in witnesses and taking court's minutes in civil cases, and she had
no access to the evidence vault or narcotics. Her position was included on the testing
list because a civil minute's clerk could be present in a courtroom where narcotics
were displayed as evidence. Random testing was deemed unreasonable for
employees in plaintiff's position since “[i]f the reasons offered were sufficient, then
suspicionless drug testing would be permissible for all public employees, regardless
of position or pre-employment scrutiny. Based upon the jurisprudence of this
important subject thus far, the Supreme Court has not yet sanctioned such a policy,
and indeed, appears to be cautioning against it.” Similarly, the court found it
“difficult to justify” random testing of mortgage and conveyance clerks, juvenile
court employees, docket clerks, and new suits counter clerks because they worked in
traditional office environment and were closely supervised. However, random testing
was deemed reasonable for computer operators, who could do significant damage to
the entire clerk's operation, and for supervisory personnel.
Ass'n v. Skinner, 934 F.2d 1096 (9th Cir. 1991)(upholding random testing program in the
railroad industry); International Bhd. of Teamsters v. Department of Transportation, 932
F.2d 1292 (9th Cir. 1991)(random testing of commercial vehicle operators); Transport
Workers' Union v. Southeaster Pa. Transp. Auth., 884 F.2d 709 (3d Cir. 1989)(random drug
testing of mass transit employees). But see Rutherford v. City of Albequerque, 77 F.3d 1258
(10th Cir. 1996)(Dismissal of city dump truck driver upon return from medical leave based
on positive result of unannounced drug test violates the Fourth Amendment).
Kemp v. Claiborne County Hospital, 763 F.2d 1362 (S.D.Miss. 1991)(scrub technician in
surgery was in safety sensitive position that justified drug-testing).
Thomson v. Marsh, 884 F.2d 113 (4th Cir. 1989)(per curiam)(upholding random testing
for civilian chemical weapons employees).
American Fed'n of Gov't Employees v. Roberts, 9 F.3d 1464 (9th Cir. 1993)(upholding
random and reasonable suspicion drug testing of all federal correctional officers by the
Bureau of Prisons). An injunction against random testing of employees who work outside
of the prison and who do not have information regarding the witness protection program was
left in place by the court. See also AFGE v. Barr, 794 F. Supp. 1466 (N.D.Cal
1992)(upholding random testing of prison employees who worked in primary enforcement
positions with access to firearms, licensed physicians and dentists with regular patient
contact, and employees with direct contact with inmates; testing of all other employees only
on the basis of reasonable suspicion of on-duty drug use or impairment).
1996 WL 229836 (E.D.La. 1996)(unreported decision).
Like the Romaguera decision, most courts have resisted suspicionless testing
procedures as applied to administrative or office personnel who do not pose a threat
to public safety or national security. Among programs that have been voided for
“overbreadth” are a plan by the Justice Department to test all criminal prosecutors
and employees with access to grand jury proceedings;53 random testing of employees
of the Department of Health and Human Services who served as messengers and mail
clerks even though they drove automobiles as part of their employment;54 postaccident testing of Office of Personnel Management employees who drive motor
vehicles;55 U.S. Coast Guard drug testing regulations requiring random screening of
all private employees aboard commercial vessels;56 and mandatory USDA testing of
quarantine inspectors and computer specialists;57 and post-accident testing of any
teacher, aide, or clerical workers injured on the job.58 What emerges is a pattern of
case-by-case judicial decisionmaking as to the “reasonableness” of testing in the
circumstances presented. Consequently, broad-based testing programs that fail to
account for distinctions among employees in terms of the public safety or national
security sensitivity of their duties are most likely in constitutional jeopardy.
Courts have upheld random testing programs that were designed to protect
sensitive information. In the Justice Department case, Harmon v. Thornburgh,59 the
U.S. Court of Appeals for the District of Columbia partially dissolved a federal
Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989), cert. denied sub nom. Bell v.
Thornburgh, 493 U.S. 1056 (1990).
American Federation of Gov't Employees v. Sullivan, 787 F. Supp. 225 (D.D.C. 1991).
Connelly v. Newman, 753 F. Supp. 293 (N.D. Cal. 1990)(absence of “historical drug
problem” and lack of “significant risk” to the public undermined governmental interest in
testing OPM drivers).
Transportation Institute v. U.S. Coast Guard, 727 F.Supp. 648 (D.D.C.1990)(“broadly
drawn” federal requirement that “all” private employees aboard private commercial vessels
be randomly tested unjustified by the “immediacy or gravity of the potential safety threat”
involved. Coast Guard must reformulate narrower rules for random testing of employees
whose “duties” are “directly” tied to safety.).
NTEU v. Yeutter, 733 F.Supp. 403, 409-13 (D.D.C.)(random testing of Department of
Agriculture animal inspectors and computer specialist permanently enjoined because
government lacked constitutionally sufficient interest in testing these workers), remanded
on other grounds, 918 F.2d 968 (D.C.Cir. 1990).
United Teachers of New Orleans v. Orleans Parish School Board, 142 F.3d 853 (5th Cir.
1998) (policy overinclusive since testing required without “any suggestion that a triggering
injury was caused by any misstep of the employee to be tested”). But see Knox County
Education Association v. Knox County Board of Education, 158 F.3d 361 (6th Cir.), cert.
denied, 528 U.S. 812 (1999)(suspicionless testing of public school teachers upon
appointment or transfer furthers government’s special need to assure sobriety of employee
who act in loco parentis in safety-sensitive positions in highly regulated industry, and is
therefore reasonable search).
Supra n. 51.
district court order that had enjoined the department's random testing of employees
with top secret security clearances. However, it refused to disturb the district judge's
ruling that criminal prosecutors and employees with access to grand jury proceedings
could not be randomly tested. Circuit Judge Wald reasoned that protection of
sensitive information--one of the governmental interests cited in Von Raab--justified
the Department's need to test employees with top secret clearances, but not all federal
employees involved in grand jury proceedings. The court elaborated:
Whatever ‘truly sensitive’ information includes, we agree
that it encompasses top secret national security information. . .
.We do not believe, however, that the government's interest in
preserving all its secrets can justify the testing of all federal
prosecutors or of all employees with access to grand jury
proceedings. We recognize that every employee within the three
categories will have access to information which he is dutybound not to divulge. But whatever the precise contours of
‘truly sensitive’ information intended by the Von Raab Court,
we believe that the term cannot include all information which is
confidential or closed to public view. A very wide range of
government employees – including clerks, typists, or messengers
– will potentially have access to information of this sort.
Thornburgh concluded that “federal employment alone is not a sufficient predicate
for mandatory urinalysis,”60 and that, even in conjunction with other asserted
governmental interests, concern for “integrity” in government and of the federal
workforce was not sufficiently compelling to justify testing all departmental
employees.61 Random testing of "sensitive" employees at the Agriculture62 and
Interior63 Departments, and within the Executive Office of the President, have also
been the subject of injunction orders issued by the D.C. district court.
Following Thornburgh, a federal district court allowed random testing of
personnel in the Executive Office of the President who held “top secret” security
clearances but ruled that various factors were relevant to whether office colleagues
cleared for “secret” information could be tested. Those factors included the person's
actual access to documents classified as secret, the general subject matter of the
information, and the feasibility of individual suspicion testing to detect drug usage.
On appeal, the D.C. Circuit reversed, holding that random testing of employees with
“secret” security clearances was permissible notwithstanding the frequency of
exposure to secret document or closeness of supervision. The majority in Hartness
v. Bush64 could find no constitutional distinction between secret clearance which
involves “serious damage to national security" and top secret clearance involving
Id. at 490; see also National Fed'n of Fed. Employees v. Cheney, infra n. 65.
878 F.2d at 490-91, see also id. at 498 (Silberman, J., concurring)(government's "powerful
interest in preventing drug use" does not justify testing all Justice Department lawyers).
National Treasury Employees Union v. Lyng, 706 F. Supp. 934 (D.D.C. 1988).
Bangert v. Hodel, 705 F. Supp. 643 (D.D.C. 1989).
919 F.2d 170 (D.C.Cir. 1990), rev'g 751 F. Supp. 1 (D.D.C. 1990).
"exceptionally grave damage to national security." Both employees had the same
level of expectation of privacy, and the governmental interest in detecting illegal drug
usage was equivalent.
In a sequel to Hartness, a federal district court held that the White House
cannot require its staff to undergo random drug testing where the employees do not
“have access to ‘sensitive’ information or have unique or special access to the
President or Vice President,” such as would pose a risk or threat to them.
Specifically, in Stigile v. Clinton,65 the district court found the White House could not
mandate the testing of two career economists with the Office of Management and
Budget solely on the grounds that they held twenty-four hour access passes to the Old
Executive Office Building (OEOB), or that they were subject to background checks.
Significant, for the court, was the fact that several other groups not subject to testing
requirements--including 600 interns, contractors and private sector maintenance staff,
the foreign and domestic press through the White House Press Room--had the same
or even closer access to the Oval Office than the OEOB. Therefore, any threat to the
President or Vice President that the two staff members posed by virtue of holding
security passes to the OEOB was no greater than that created by other persons--in and
outside the OEOB--who were subject to testing and with whom the President or Vice
President may come into contact.
The U.S. Court of Appeals for the D.C. Circuit reversed this ruling.66 In a
unanimous decision, the appellate panel found that the employee’s right to be free
from random drug testing was outweighed not only by the government's need to
protect the President, but also by the government’s need to assure the public that it
is protecting the President. “The public interest the government is seeking to protect
is undoubtedly of the utmost importance. Few events debilitate the nation more than
the assassination of the President.” The court noted the link between the risk posed
by a drug-using OEOB permanent passholder and the potential harm to the President
or the Vice President was direct and immediate. It likened the situation to that of an
employee with access to top-secret information, where “a single incident could be
disastrous.” To highlight this direct connection, the opinion observes:
It is possible that a drug-using OEOB passholder could be
blackmailed into using his access to the building to assist in an
attack on the President. Given the importance of protecting the
President's safety, this is all that is required to make this
particular search reasonable. It therefore does not violate the
The employees argued that they should not be tested because interns and other nonpermanent passholders with access to the OEOB were not tested. But such visitors
could only enter the OEOB on a temporary basis, the court noted, while permanent
passholders could stay inside for indefinite periods, making them a more valuable
point of access for blackmailers.
932 F. Supp. 365 (D.D.C. 1996), rev'd 110 F.3d 801 D.C.Cir. 1997), cert. denied, 522
U.S. 1147 (1998).
The government’s “compelling” interest in public safety may also justify
suspicionless random testing in certain circumstances. However, several lower
courts have found that an agency's program “cast too wide a net” in defining
categories of persons who must be subjected to random testing procedures. National
Federation of Federal Employees (NFFE) v. Cheney,67 considered a program that
tested civilian employees in the Department of the Army. The random testing of
2,800 civilian employees who fly and service Army aircraft and 3,700 civilians
employed as police and security guards at Army facilities was upheld. The D.C.
Circuit, however, found the classification of “employees working with nuclear
reactors” to be overly broad and remanded this portion of the case for further factual
determinations of the responsibilities of each job category. In addition, the court
permitted testing of “direct service” employees, mainly drug counselors, in the
Army's alcohol and drug abuse prevention program but rejected program “integrity”
as a justification for random testing of all employees in the “chain of custody” of
In American Fed'n of Federal Employees v. Sullivan,68 the court had to
determine whether it was constitutional to randomly drug test motor vehicle operators
who did not carry passengers. As dictated by Skinner and Von Raab, the court
balanced the government's interest in conducting the tests against the individual's
privacy expectations. Because the federal agency employees did not carry passengers
and did not have access to classified information, the court found that neither the
passenger safety rationale nor national security concerns were applicable. Further,
the court observed:
The government's concern here is the safety risk that an impaired
government driver might pose to other drivers on the road. While not
insubstantial, this is obviously no different than the interest the public
and the government have in keeping potentially impaired drivers off
the road. If there is a sufficient `special governmental need' to permit
warrantless searches. . ., then the federal government could proceed
to test any and all drivers on the road.69
In view of these findings and observations, the court held that it would be
unconstitutional to subject these motor vehicle operators to random drug tests.
National Treasury Employees' Union v. Watkins70 enjoined the Department of
Energy from random testing of certain DOE employees in “critical” positions,
including motor vehicle operators and computer specialists involved in security
operations, because the district judge found none of the extraordinary public safety,
drug interdiction, and security interests highlighted by Skinner and Von Raab. A
884 F.2d 603 (D.C.Cir. 1989), cert. denied, 496 U.S. 936 (1990).
787 F. Supp. 255 (D.D.C. 1992).
Id. at 257.
722 F.Supp 776 (D.D.C. 1989).
similar order prevented the random testing of 88 Department of Education data
processing employees in American Federation of Government Employees v.
Cavazos,71 while testing of 23 other employees, including an armed guard, nine
motor vehicle operators, and thirteen employees with access to top secret information
was permitted to go forward.
State or local mandatory testing programs for police or correctional personnel,
firefighters, and other “public safety” personnel have usually met with at least
qualified judicial approval. In Guiney v. Roach,72 the High Court without comment
let stand a First Circuit decision upholding random testing of Boston police officers.
The case involved a city department rule which required “all sworn and civilian
personnel,” on a random basis, to submit to urinalysis testing. A federal judge struck
down the plan, but on appeal, the First Circuit held that random testing did not offend
the Fourth Amendment as applied to officers who carry firearms or who participate
in drug interdiction. With respect to other types of employees, the court found the
record unclear as to the rationale for including them in the testing program. It
remanded the case for further consideration of this point. “Since we can find no
relevant distinction between a customs officer and a police officer,” the court said,
“we hold the police department's drug-testing rule to be constitutional.”
The Seventh Circuit in Taylor v. O'Grady73 held that the Cook County
Department of Corrections could constitutionally require employees who had regular
access to the inmate population, reasonable opportunity to smuggle drugs into the
inmate population, or access to firearms to submit to drug testing once a year with
no advance warning as to when testing will occur. Although unannounced testing of
“contact” employees was held reasonable given the special governmental interest in
prison security, the program was unconstitutional as applied to ordinary
administrative personnel without inmate contact. “[S]ince those officers with only
administrative or clerical duties or otherwise lacking contact with the jail population
do not threaten claimed dangers if impaired while on duty, and since the record does
not show they are able to smuggle drugs to the prisoners, the Department gains
nothing by testing them.”74 Noting that the Supreme Court had remanded Von Raab
because the classification of employees who handle sensitive information was too
broadly drawn, Taylor denied that a generalized interest in fostering a law-abiding
and drug-free workplace was sufficient to outweigh the privacy expectations of
The Sixth Circuit has upheld the mandatory testing of firefighters and police
officers, concluding that there is no requirement of individualized suspicion when
testing employees whose duties are “fraught with. . .risks of injury to others. . . .”75
Random or other periodic testing of police and other public safety officers has
721 F. Supp. 1361 (D.D.C. 1989), aff'd in part and rev'd in part without op. sub. nom.,
American Fed'n of Gov't Employees v. Sanders, 926 F.2d 1215 (D.C. Cir. 1991).
873 F.2d 1557 (lst Cir.) cert. denied 493 U.S. 963 (1989).
888 F.2d 1189 (7th Cir. 1989).
Id. at 1197.
Penny v. Kennedy, 915 F.2d 1065, 1067 (6th Cir. 1990).
similarly been approved by most state courts to confront the issue. The New Jersey
Supreme Court, for example, has approved of random testing of transit police who
carry firearms,76 in effect overruling that court's prior rulings that unannounced drug
testing of police officers without reasonable suspicion were unconstitutional.77 “We
are thoroughly convinced that police officers are members of a `highly regulated
industry' . . . [and that] the constitutionality of Transit's drug-testing policy is
compelled both by the deteriorating conditions of society with respect to drug abuse
and subsequent federal decisions.”
The Fifth Circuit in Aubrey v. School Board of Lafayette Parish78 reversed the
grant of summary judgment in favor of a local school board, holding that factual
issues existed as to whether a custodian was a “safety-sensitive” position that could
be randomly tested for illegal drug usage. The district court had determined that the
custodian was in a safety-sensitive position because he deals with poisonous solvents,
lawn mowers, electricity and gas pilot lights, which could be dangerous to small
children. In reversing, the appellate court noted that intrusions on personal privacy
that may be unreasonable in some contexts are rendered permissible by the
operational realities of the workplace. Valid and compelling public interests must
be weighed against the interference with individual liberty. This meant that
mandatory testing had to be limited to sensitive positions and hedged with procedural
safeguards, such as giving notice to individuals that they may be randomly tested.
In this case, however, “no evidence was presented to show which positions are
considered safety sensitive and which are not,” wrote the court, or “whether the
policy at the elementary school would differ from that at a high school.” In addition,
“[no] evidence was presented to show whether employees in safety-sensitive
positions had notice that they would be subject to random drug testing, or what kind
of notice they received, or even if Aubrey had received notice.” Consequently, the
Fifth Circuit reinstated the school custodian's challenge to his employer's random
testing policy because the school district did not specify which employees would be
covered. Similarly, the testing of a transportation worker who was employed as a
maintenance custodian could not be justified, according to a Third Circuit decision,
since his responsibilities did not pose a substantial risk of harm to himself or others,
nor was the job a pervasively regulated one.79
New Jersey Transit PBA Local 304 v. New Jersey Transit Corp., 290 N.J. Super. 406, 675
A.2d 1180 (1996)(random testing of transit police who carry firearms).
See Allen v. County of Passaic, 219 N.J. Super. 352, 530 A.2d 371 (Law Div. 1986);
Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, N.J. Super. 461, 524
A.2d 430 (App. Div. 1987).
92 F.3d 316 (1996).
Bolden v. Southeastern Pa. Transportation Auth., 21 F.3d 29 (3d Cir. 1994). See also 19
Solid Waste Department Mechanics v. City of Albuquerque, 156 F.3d 1068 (10th Cir.
1998)(despite city’s “important safety and health concerns,” since regularly scheduled
testing of mechanics who repair of city’s fleet of diesel trash trucks “would not effectively
detect or deter drug use,” it was not based on a special governmental need and violated the
Based on the rationale that applicants for employment do not have the same
expectations of privacy as current employees, the courts have often permitted preemployment testing as a condition of public employment. The Von Raab case itself
presented preemployment issues since the testing there was required as part of the
application process for drug enforcement duty, and the Court shortly thereafter
denied review of a Washington State Supreme Court decision upholding
preemployment testing of individuals given access to nuclear power plants.80 Federal
appellate decisions since have generally approved preemployment testing rules for
public employees or workers in federally regulated industries.
The D.C. Circuit in Willner v. Thornburgh,81 by a 2 to 1 margin, approved a
testing plan for attorneys applying for positions with the Antitrust Division of the
Department of Justice. Applying the special needs analysis of Von Raab and Skinner,
the majority acknowledged that while applicants have some expectation of privacy,
it is far less than incumbent DOJ employees who nevertheless are subject to testing
procedures in specified circumstances. In addition, the applicant was found to
relinquish whatever privacy interest he has by making disclosures required in the
application concerning prior drug usage and by consenting to a thorough FBI
background investigation. Further safeguarding the testing procedure from
constitutional challenge was the requirement of advance notice of the test date given
the applicant and the fact that the test was administered in the privacy of a small
room behind a closed door. Judge Henderson dissented from the panel decision for
its failure to analyze the “nexus” between the individual's duties and the
governmental harm to be averted, as required in Harmon, and consequently
“sanction[ing] a blanket testing requirement for all federal job applicants.” She was
also critical of the majority for acknowledging governmental interests beyond those
allowed by the Supreme Court – namely, “maintaining public confidence and trust”
and “the high cost of hiring and training new employees” – as justification for the
preemployment testing procedure.
The same conclusion was reached by the Ninth Circuit regarding DOT
mandated testing of truck drivers in International Brotherhood of Teamsters v.
Department of Transportation.82 Besides a requirement that motor carriers test all
prospective employees they intend to hire, the decision upheld random, periodic, and
post-accident testing based on the government's significant public safety concerns
which outweighed any privacy interests of applicants and currently employed drivers.
The court reasoned that commercial drivers have a significantly reduced expectation
of privacy because they have entered a heavily regulated industry that requires
periodic physical examinations and urine tests to determine the qualifications of its
members. In addition, preemployment testing is not random, but is triggered by the
voluntary conduct of applicants who have foreknowledge that drug-testing is
Alverado v. Washington State Public Power Supply Sys., 759 P.2d 427 (Wash. 1988), cert.
denied, 490 U.S. 1004 (1989).
928 F.2d 1185 (D.C. Cir. 1991).
932 F.2d 1292 (9th Cir. 1991).
required. In short, the government's concern for “preempting accidents” was found
to “outweigh the minimal intrusion on job applicants privacy, making the conduct of
suspicionless, pre-employment testing constitutional.”
Other state and federal courts have approved preemployment testing of
applicants for correction officer,83 police cadet,84 and similar safety-sensitive
positions but rejected more broadly-based applicant screening programs. For
example, the federal district court in Georgia Ass'n of Educators v. Harris85 enjoined
preemployment testing of all applicants for state jobs in the State of Georgia because
it defied the special needs approach of Skinner and Von Raab.
The court finds it difficult to even begin applying that balancing
test, however, because defendants have failed to specifically
identify any governmental interest that is sufficiently compelling
to justify testing all job applicants. Moreover, defendants
remain oblivious to Von Raab's (and indeed, the fourth
amendment's) requirement that it connect its interest in testing
to the particular job duties of the applicants it wishes to test.
Instead, defendants attempt to justify their comprehensive drug
testing program based on a generalized governmental interest in
maintaining a drug-free workplace. Defendants' position is
untenable because neither Von Raab nor its progeny recognize
such a generalized interest as sufficiently compelling to
outweigh an individual's fourth amendment rights.86
An appeals court in New Jersey also found that the government’s mere desire for a
drug-free workplace and general stability and integrity of the workforce would not
justify the testing of an applicant for a water meter reader position.87 Since a
sufficient nexus between public safety and the nature of the employment was not
shown, neither applicants nor employed meter readers could be tested without
individualized reasonable suspicion. The majority rejected the analysis of the dissent
which relied on crime control as sufficient justification, concluding that other
personnel procedures--the judgment of experienced personnel directors based on job
interviews, job history, references, school records, and the like--would equally serve
McKensie v. Jackson, 547 N.Y.S.2d 120 (App. Div. 1989).
O'Connor v. Police Comm'r of Boston, 557 N.E.2d 1146 (1990); Gauthier v. Police
Comm'r of Boston, 557 N.E.2d 1374 (1990).
749 F. Supp. 1110 (N.D. Ga. 1990).
Id. at 1114.
O'Keefe v.Passaic Valley Water Comm'n, 624 A.2d 578 (N.J. 1993).
Student Drug Testing in the Public Schools
Several terms ago, in Veronia School District 47J v. Acton,88 the High Court
first considered the constitutionality of student drug testing in the public schools. At
issue there was a school district program for random drug testing of high school
student athletes, which had been implemented in response to a perceived increase in
student drug activity. All student athletes and their parents had to sign forms
consenting to testing, which occurred at the season’s beginning and randomly
thereafter on a weekly basis for the season’s duration. Students testing a confirmed
positive were given the option of participating in a drug assistance program or a
suspension from athletics for the current and following season. A 6 to 3 majority of
the Court, led by Justice Scalia, upheld the program against Fourth Amendment
challenge. Central to the majority’s rationale was the “custodial and tutelary”
relationship that is created when children are “committed to the temporary custody
of the State as school master,” in effect “permitting a degree of supervision and
control that could not be exercised over free adults.” Students had diminished
expectations of privacy by virtue of routinely required medical examinations, a factor
compounded in the case of student athletes by insurance requirements, minimum
academic standards, and the “communal undress” and general lack of privacy in the
sports locker rooms. Because “school sports are not for the bashful,” student athletes
were found to have a lower expectation of privacy than other students.
Balanced against this diminished privacy interest was the nature of the intrusion
and importance of the governmental interest at stake. First, the school district had
mitigated actual intrusion by implementing urine collection procedures that simulated
conditions “nearly identical to those typically encountered in public restrooms”; by
analyzing the urine sample only for presence of illegal drugs – not for other medical
information, such as disease conditions, diabetes, or pregnancy; and by insuring that
positive test results were not turned over to law enforcement officials. School
officials unquestionably had an interest in deterring student drug use as part of their
“special responsibility of care and direction” toward students. That interest was
magnified in Veronia by judicial findings that, prior to implementation of the
program, “a large segment of the student body, particularly those involved in
interscholastic athletics, was in a state of rebellion . . . fueled by drug and alcohol
abuse.” School officials’ interest became “perhaps compelling” in the case of student
athletes due to “the risk of physical harm to the drug user or those with whom he is
playing his sport.” Consequently, the Court dismissed Acton’s argument for a less
intrusive policy of suspicion-based testing, reasoning that the Fourth Amendment
only requires that government officials adopt reasonable policies, not the least
intrusive ones available. The majority in Veronia cautioned “against the assumption
that suspicionless drug-testing will readily pass muster in other constitutional
contexts.” Justice Ginsburg’s brief concurrence also emphasized her understanding
that the decision applied only to testing of student athletes, expressly reserving the
issue of whether such programs could be constitutionally extended to other segments
of the student population. Justice O’Connor’s dissent distinguished public employee
and student drug testing, arguing that suspicion-based testing would be entirely
effective in the high school setting.
515 U.S. 646 (1995).
A division of opinion soon emerged among the lower courts as to how broadly
Veronia could be applied to permit “suspicionless” drug testing that included student
groups beyond athletes. The question was first confronted by the Seventh and Eighth
Circuits in nearly identical cases, Todd v. Rush County Schools89 and Miller v.
Wilkes,90 involving random drug testing policies that applied not only to student
athletes, but also to students participating in any other extracurricular activity. While
no actual or imminent drug problem was identified among the affected student
populations in either case, the policies were upheld. The school policy in Todd
applied not only to participation in extracurricular activities but also to students who
drove to and from school, all of whom were subject to random drug testing.91 In a
sequel to Todd, Joy v. Penn-Harris-Madison School Corp.,92 the Seventh Circuit
reconsidered a policy mandating random drug testing of students who drive to school,
as well as those who participate in extracurricular activities. Conceding that the Todd
outcome was not compelled by Veronia, and that Todd was crucial to Joy, the court
resorted to stare decisis as a basis for upholding the policy, finding that Veronia
allowed the testing of student drivers. Expressing concern, however, that “[t]he
danger of slippery slope continues to haunt our jurisprudence,”93 the appeals court
emphasized that it was not sanctioning drug testing of an entire student population,
tacitly encouraging the Supreme Court to revisit the issue and provide the lower
courts with additional guidance.
Parting company with the Todd line of decisions was Trinadad School District No.
1 v. Lopez, 94 where the Colorado Supreme Court disapproved of a policy for drug
testing all students in extracurricular activities where there was no convincing evidence
of higher drug usage rates by students participating in extracurricular activities, or that
the reasonable privacy expectations of such students had been so diminished by
constraints of the sports culture, or otherwise, as those imposed on student athletes in
Veronia. Instead of targeting students in formal school activities, the policy in Willis
v. Anderson School Corp.95 mandated testing for any student who “possesses or uses
tobacco products; is suspended for three or more days for fighting; is habitually truant;
or violates any other school rule that results in at least a three-day suspension.”96
Because Indiana law required one-on-one meetings with such students prior to
suspension, in effect permitting observation of any suspicious drug-related behavior, the
drug testing policy was rejected since the “benefits of deterrence” alone did not warrant
departure from traditional “reasonable suspicion” standards.
133 F.3d 984 (7th Cir.), cert. denied, 525 U.S. 824 (1998).
172 F.3d 574 (8th Cir.), vacated as moot, 172 F.3d 582 (8th Cir. 1999).
In practice, the policy affected nearly the entire student body, with 728 of 950 high school
students consenting to random tests in the 1996-97 academic year.
212 F.3d 1052 (7th Cir. 2000).
Id. at 1066.
963 P.2d 1095 (Colo. 1998).
158 F.3d 415 (7th Cir. 1998).
Id at 417.
A conflict among the circuits was created when the Tenth Circuit refused to permit
the random testing of students participating in extracurricular activities outside of the
sports arena. In 1998 the Tecumseh Public School District adopted a “Student
Activities Drug Testing Policy,” which required “suspicionless drug testing” of students
wishing to participate “in any extracurricular activity.” Such activities included Future
Farmers of America, Future Homemakers of America, academic teams, band, chorus,
cheerleading, and athletics. Any student who refused to submit to random testing for
illegal drugs was barred from all such activities, but was not otherwise subject to penalty
or academic sanction. Lindsay Earls challenged the district’s policy “as a condition” to
her membership in the high school’s show choir, marching band, and academic team,
but did not protest the policy as applied to student athletics. The district court granted
the school district summary judgment, but was reversed on appeal. The Tenth Circuit
panel found that any “special need” that the school district had for suspicionless testing
of students in these circumstances was less immediate than the risk of injury posed to
student athletes in Veronia, particularly “given the paucity of evidence of an actual drug
abuse problem among those subject to the Policy” in the Earls case.
On June 27, 2002, by a 5 to 4 vote, the U.S. Supreme Court reversed the decision
of the Tenth Circuit and held that the Tecumseh school district’s random drug testing
program was a “reasonable means” of preventing and deterring student drug use and did
not violate the Fourth Amendment. The Court’s decision, written by Justice Thomas
was joined by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Breyer. In its
role as “guardian and tutor,” the majority reasoned, the state has responsibility for the
discipline, health, and safety of students whose privacy interests are correspondingly
limited and subject to “greater control than those for adults.” Moreover, students who
participate in extracurricular activities “have a limited expectation of privacy” as they
participate in the activities and clubs on a voluntary basis, subject themselves to other
intrusions of privacy, and meet official rules for participation. The fact that student
athletes in the Veronia case were regularly subject to physical exams and communal
undress was not deemed “essential” to the outcome there. Instead, that decision
“depended primarily upon the school’s custodial responsibility and authority,” which
was equally applicable to athletic and nonathletic activities.
The testing procedure itself – involving collection of urine samples, chain of
custody, and confidentiality of results – was found by Justice Thomas to be “minimally
intrusive” and “virtually identical” to that approved by the Court in Veronia. In
particular, the opinion notes, test results are kept in separate confidential files only
available to school personnel with a “need to know”; they may not be disclosed to law
enforcement authorities; and they carry no disciplinary or academic consequences other
than limiting extracurricular participation. “Given the minimally intrusive nature of the
sample collection and the limited uses to which the test results are put, we conclude that
the invasion of student’s privacy is not significant.”
Finally, the majority ruled that the school district had an “important interest “ in
the health and safety of its students – including prevention and deterrence of drug use
– which was “reasonably” served by its drug testing program. Citing several anecdotal
instances of drug use at Tecumseh schools, Justice Thomas nonetheless concluded that
neither “individualized suspicion” nor a “demonstrated problem of drug abuse” were
necessary predicates for a student drug testing program, and there is no “threshold level”
of drug use that need be satisfied. Similarly, in a separate concurrence, Justice Breyer
emphasized the national scope of the “drug problem” in education and the inefficacy of
“supply side interdiction” efforts by government as factors supporting the
reasonableness of the school’s drug testing program, even in the absence of
Justice Ginsburg, joined in dissent by three other Justices, offered a point by point
rebuttal of the majority rationale. First, the dissenters objected, a generalized “concern”
for student health and safety, while “basic to the school’s caretaking,” was not so
“immediate” as to constitute a “special need” satisfying the Veronia analysis. Nor
were they persuaded that drug use by students engaged in extracurricular activities other
than athletics – such as band and choir – exposed them to any greater safety risk than
nonparticipants who use drugs in the general student population. Thus, the “special
susceptibility to drug-related injury” of student athletes apparent in Veronia was not a
factor in this case. While “voluntary” participation in extracurricular activities
necessarily entailed some additional regulation of student conduct, Justice Ginsburg
would not equate the situation to student athletics. “Interscholastic athletics . . . require
close safety and health regulation; a school’s choir, band, and academic team do not.”
More importantly, conceding evidence of some drug use among students at the
Tecumseh schools, the problem was “not . . .major” as compared to the “explosive drug
abuse problem sparked by members of athletic teams” described in Veronia. Absent
a drug abuse problem among students participating in extracurricular activities, Justice
Ginsburg concluded, the intrusion on students’ privacy was constitutionally
impermissible. Unlike student athletes, whose reasonable expectations of privacy are
diminished by the communal nature of the sports locker room, participants in other
extracurricular activities do not relinquish all sense of personal privacy to the realities
of the school environment.
Student drug-testing proliferated in public schools across the nation after the 1995
Veronia decision. Application of the “special needs” analysis to programs of increasing
scope and variety had largely confounded the lower federal courts, which as illustrated
above, failed to achieve consistent results even as to tests administered in virtually
identical circumstances. Beyond resolving this judicial conflict, the majority
interpretation of the Fourth Amendment in Pottowatomie County may significantly
broaden the discretion of public school officials to perform student searches in the
academic setting. Despite a relatively scant record of prior student drug abuse, Justice
Thomas’ opinion emphasizes a fairly general concern of the state for student health and
safety – and an “important” deterrence interest – as justification for a broadly based
drug testing program. Absent from the equation seems to be the risk of serious injury
and pervasive history of drug abuse by student athletes that actuated the Court’s
deliberations in Veronia. As such, the latest opinion may set a new constitutional mark,
blurring any real distinctions for drug testing purposes between “high risk” students
groups and the general school population .
Prior to the Tenth Circuit decision in Tecumseh, for example, a federal district
court in Texas invalidated a universal drug testing requirement by one school district,
which made passing a drug test a condition to public school attendance by all students.97
Tannahill ex rel. Tannahill v. Lockney Independent School District, 133 F. Supp.2d 919
Also implicated may be other “special needs” searches in the schools involving, for
example, metal detectors, drug-sniffing dogs, and random-locker inspections,
implemented by many school district as a response to school violence.98 Whatever
outer limits there may be to the “special needs doctrine,” however, whether as applied
to universal student drug testing or to other alleged invasions of student privacy in the
academic setting, will have to await further High Court action. In particular, the
constitutionality of random testing of students athletes – or more general student
populations – at the college and university level,99 where the in loco parentis doctrine
applies with less force remains unsettled.
Suspicionless Drug Testing in Other Regulatory
A growing body of caselaw has developed from the efforts of lower federal and
state courts to apply the “special needs” approach to an expanding array of
governmental programs and regulatory activities. While the focus of judicial scrutiny
has largely remained fixed on workplace and public school drug testing, questions have
also arisen in regard to testing in other administrative venues. The Third Circuit, for
example, anticipated Skinner and Von Raab when it upheld mandatory testing of horse
racing jockeys, officials, and trainers in Shoemaker v. Handel,100 a decision which has
since been extended to other participants in that “heavily regulated” industry.101
In another regulatory context, the Illinois Supreme Court in Fink v. Ryan102 upheld
that state's “implied consent” statute under the “special needs” exception to the Fourth
(N.D.Tex. 2001). The school district policy in Lockney essentially made random testing a
prerequisite to attending the public schools. Any refusal to submit a consent form for urine
testing subjected the student to the same punishment as a positive result: a twenty-one day
suspension from all extracurricular activities, three days of in-school suspension and three
sessions of substance abuse counseling. All 388 of the secondary school students in the
district, except for the plaintiff, had taken the drug tests.
See B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir. 1999).
Compare Hill v. NCAA, 7 Cal. 4th 1, 865 P.2d 633 (1994) where the California Supreme
Court upheld the NCAA's right to randomly test student athletes because "the invasion is
justified by a competing interest--the NCAA's interest in protecting the integrity of athletic
competition (in the case of steroid abuse, for example) and to protect the safety of the
student athlete[,]" with University of Colo. v. Derdyn, 863 P.2d 929 (Colo. 1993). cert.
denied, 114 S. Ct. 1646 (1994), holding that the random urinalysis testing of college athletes
violated the Fourth Amendment.
Shoemaker v. Handel, 795 F.2d 1135 (3d Cir. 1986).
See Carelli v. Ginsburg, 956 F.2d 598 (6th Cir. 1992) (testing of licensed thoroughbred
horse trainers); Dimeo v. Griffin, 943 F.2d 679 (7th Cir. 1991)(en banc)(random searches
of the living quarters of persons employed as "backstretchers"); Holtus v. Louisiana State
Racing Commission, 580 So. 2d 469 (La. App. 1991)(random testing of licensees of the
State racing Commission).
174 Ill. 2d 302, 673 N.E. 2d 281 (Ill. 1996).
Amendment and its state constitutional counterpart. The Illinois law authorizes
chemical testing for drugs or alcohol of drivers who are arrested and issued a traffic
citation for any accident causing serious injury or death. No individualized suspicion
was required because the state's special need to suspend and deter chemically impaired
drivers went beyond normal law enforcement. Moreover, drivers' expectation of privacy
was “diminished” by the highly regulated character of automobile usage upon state
highways and because state law imposes a separate duty on drivers in such
circumstances to remain at the scene to assist injured parties and law enforcement
In 1999, the State of Michigan enacted a pilot program to test welfare recipients
and applicants for drugs as a prerequisite to receiving assistance. Pursuant to authority
granted by Congress,103 the state legislature had required the Michigan Family
Independence Agency to implement a statewide, suspicionless drug testing program for
welfare recipients, to be carried out in a minimum of three counties around the state.
The federal district court in Marchwinski v. Howard104 preliminarily enjoined the state
statute, concluding that the prescribed drug testing regime was not so critical to public
safety as to justify exception to traditional Fourth Amendment requirements. On
October 18, 2002, the Sixth Circuit reversed and upheld the program. The appellate
court disagreed with the proposition that only the state’s interest in public safety would
amount to a “special need” warranting suspicionless drug testing. It instead found that
Michigan has a strong interest in insuring that the public monies it expends for social
welfare actually promote the legislature’s intended purposes and, in particular, that the
needs of children are met.
Primary concerns of [federal welfare programs] are that children of needy
families may be cared for in their own or in their relatives’ homes, and that the
parents of these children may be assisted in overcoming dependence on government
programs and in becoming economically self-sufficient. . . . We have no doubt
that the safety of children of [welfare] families . . . is a substantial public
safety concern that must be factored into the determination of whether
Michigan has shown a special need to this drug testing program. An
additional public safety concern is the risk to the public from the crime
associated with illicit drug use and trafficking. And we think it is beyond
cavil that the state has a special need to insure that public monies expended
in the [program] are used by recipients for their intended purposes and not for
procuring controlled substances – a criminal activity that not only undermines
the objectives of the program but directly endangers both the public and the
children the program is designed to assist.
In addition, the court determined that applicants for welfare have a diminished
expectation of privacy by virtue of extensive federal and state regulation, which require
them to “relinquish important and often private information” as a condition to receipt
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 21 U.S.C.
§ 862b, authorized the states to test welfare recipients and to sanction those who test
309 F.3d 330 (6th Cir. 2002).
The legality of governmental drug tests was recently addressed by the Supreme
Court within another administrative framework. In response to the problem of cocaine
abuse by expectant mothers, and its deleterious impact on fetuses, the City of Charleston
joined with a state university hospital to develop a plan to test certain pregnant women
for illegal drug abuse – those receiving no, late, or incomplete prenatal care and others
experiencing certain complications during pregnancy. Initially, women who tested
positively for drugs – during pregnancy or during labor – were reported to police and
arrested. The policy was modified so that those testing positive during pregnancy were
given the option of substance abuse treatment; if the woman tested positive a second
time or missed a treatment session, she was arrested. Women arrested under the policy
complained that the warrantless and unconsented drug tests were conducted for criminal
investigatory purposes and were unconstitutional. The Fourth Circuit appeals court
decided that the drug tests were reasonable and applied special needs analysis to
conclude that “the interest in curtailing the pregnancy complication and medical costs”
of maternal cocaine use outweighed any “minimal intrusion on the privacy of the
patients.” In Ferguson v. City of Charleston,105 the Supreme Court reversed and
specifically rejected the state’s invocation of the special needs doctrine. The balancing
test of Von Raab, Veronia, and Chandler was inappropriate since the “central and
indispensable feature” of the present policy was to coerce patients, aided by law
enforcement, into treatment for substance abuse. The Court distinguished city officials’
“ultimate” purpose, protecting maternal and fetal health, from the “purpose actually
served,” gathering evidence of crimes committed by patients.” A special need may
justify suspicionless drug testing under a program devised for a “proper governmental
purpose other than law enforcement.” But the exception to Fourth Amendment warrant
requirements does not apply where the results are forwarded to law enforcement
officials who are extensively involved at every stage of the policy.
Constitutional law on the subject of governmentally mandated drug-testing is
primarily an outgrowth of the Fourth Amendment prohibition on unreasonable searches
and seizures. Judicial exceptions to traditional requirements of a warrant and
individualized suspicion for “administrative” searches have been extended to mandatory
drug-testing of public employee and student athletes in the public schools where the
government is able to demonstrate a “special need” beyond the demands of ordinary law
enforcement. To date, however, special needs analysis has largely been confined to
relatively narrow circumstances directly implicating “compelling” public safety, law
enforcement, or national security interests of the government. More generalized
governmental concerns for the “integrity” or efficient operation of the public workplace
have usually not been deemed sufficient to justify intrusion on the “reasonable
expectation of privacy” of workers or other individuals to be tested.
The constitutional parameters of “special needs” analysis were outlined by the
Supreme Court Skinner, Von Raab, and Veronia cases. In dispensing with the
“reasonable suspicion” standard, the Court focused on the connection between an
individual's duties, or the activity involved, and the harm the government seeks to avert
532 U.S. 67 (2001).
through the program. Thus, in Skinner, the Court emphasized the “safety-sensitive
tasks” that railroad employees perform, and found testing justified because the covered
employees “discharge duties fraught with such risks of injury to others that even a
momentary lapse of attention can have disastrous consequences.” Analogizing the
railroad worker to those with “routine access to dangerous power facilities,” the Court
noted that they “can cause great human loss before any signs of impairment become
noticeable to supervisors or others.” Generally, these precedents suggest that substantial
constitutional difficulties probably confront any broad-based testing proposal that is not
limited to specific occupational categories or, within other regulatory contexts, to
persons for whom the government is able to demonstrate a public safety, national
security, or other “compelling” need to test. For this reason, any governmental plan to
impose universal testing as a requirement for drivers’ license applicants, welfare
recipients, or other beneficiaries of state or federal programs could face formidable
constitutional hurdles. The legality of mandatory testing in these other regulatory
contexts, however, may depend upon the range of governmental interests that the Court
ultimately declares to be “compelling” for purposes of this Fourth Amendment analysis,
and on how close the required “nexus” to such interests must be to justify random
testing of specific individuals or groups.
Similar considerations may pertain to drug testing of Members and employees of
the legislative branch. The Court's ruling on the State of Georgia's efforts to test
candidates for high elective office has obvious ramifications for this issue. At a
minimum, the Chandler case stands for the proposition that a governmental purpose to
promote official integrity or public trust in the institutions of government is not a
constitutionally adequate “special need” to justify suspicionless drug testing of public
officials, at least in the absence of a “demonstrated problem of drug abuse” among the
specific groups to be tested. As per the caselaw discussion earlier in this report,
however, random or periodic testing of House or Senate employees may be justified by
public safety or national security considerations that have sustained federal executive
branch drug-free workplace programs. Accordingly, for example, test procedures as
applied to the Capitol police or other employees authorized to carry firearms, to
congressional staff with access to classified national security information, to drivers for
House officials or other employees routinely entrusted with the operation of motors
vehicles on or about the Capitol grounds may arguably fall into “special needs”
categories under existing judicial authority. On the other hand, suspicionless testing of
“routine” administrative or office personnel, Capitol grounds and maintenance
employees, and like positions may be more problematic. The testing of Members
themselves could conceivably be justified constitutionally on the basis either of their
access to national security information or, under the Stigile rational, because of their not
infrequent physical proximity to the President, Vice-President, or other elected officials
standing in direct line of succession to the Presidency. The full ramifications of the
D.C. Circuit's rationale remain uncertain, but carried to its logical end, Stigile could be
forceful precedent for permitting fairly extensive mandatory drug screening within the