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Drug Testing in the United States: A Short History

Part One

There was a time not long ago when the idea of the government compelling any American citizen to take a random suspicionless drug test was unthinkable.

Pre-employment drug screens by a private employer do not challenge the Constitution – if you don’t want to take a drug test you are free to market your labor elsewhere – but drug testing public servants or requiring an existing private employee to take a drug screen to maintain his or her job was different.

Drug test opponents point to the Fourth Amendment of the United States Constitution as a likely place to begin their objections: 

“The Right of the People to Be Secure in Their Persons, Houses, Papers and Effects Against Unreasonable Searches and Seizures, Shall Not be Violated; And No Warrant Shall Issue, but upon Probable Cause, Supported by Oath or Affirmation, and Particularly Describing the Place to Be Searched and the Person or Things to Be Seized.” 

A quick glance at the personal architecture of drug testing – requiring a citizen to present urine on demand; often a random, suspicionless demand – certainly seems to be at odds with constitutional guarantees.

That was the prevailing view in 1969 when the Washington, D.C. Department of Corrections decided to drug test 129 prisoners to demonstrate a connection between drugs and crime. 

That action, it was carefully argued, did not contradict the fourth amendment because prisoners, by definition, have mitigated rights.  Drug testing commenced under strategically limited circumstances precisely because the common wisdom held that requiring a citizen to provide a bodily fluid on demand was a search within the meaning of the fourth amendment. 

[1] The Bill of Rights permitted a “reasonable” search but precisely what was reasonable and why – the balance between an individual’s expectation of privacy and the government’s need to know – was left up to the courts.

The 129 men locked up in the nations capitol already had their freedom shut down.  It seemed to be no great stretch to require them to provide a urine sample, and no one complained. 

The previous year while running for president, candidate Richard Nixon said, “As I look over the problems in this country, I see one that stands out particularly – the problem of narcotics… I believe in civil rights,” Nixon averred, “but the first civil right of every American is to be free from violence, and we are going to have an administration that restores that right in the United States of America.” 

Did the warden know when he told those 129 prisoners to pee in a cup that he was setting the stage for the birth of a multi-billion dollar industry that would foreclose the rights of millions of American men, women and children? 

I doubt it.

The D.O.C. drug test program was an imperfect study at best, and the final results were ambiguous and unusable; but that’s when it all started. 

That was the beginning of the slippery slope upon which we’ve all slid down, down and down for over forty years. 

Soldiers came next.

In 1971, acting on recommendations from the White House, the Pentagon prepared to random drug test soldiers returning from Vietnam.  Once again, military personnel were deemed to be perfect guinea pigs because they too had limited rights. 

Unlike the rest of us, soldiers must regularly obey orders and adhere to a strict code of conduct. 

There was one problem, however.

Since drug use was an infraction of the military code, failing a drug test would automatically lead to a dishonorable discharge. 

The test results of soldiers returning from Southeast Asia promised to be a public relations nightmare, and so the Commander-in-Chief sent a single-page memo to the secretary of defense ordering that drug use will no longer be considered a crime under the military code. 

When the Committee for GI Rights subsequently sued citing privacy concerns the U.S. Supreme Court declared constitutional an “administrative search exception” to the Fourth Amendment with regard to random drug testing of military personnel, reasoning that the state’s strong public interest to ensure military readiness outweighed the privacy interests of servicemen who already serve under considerably diminished rights, and that a warrantless “search” typically prohibited by the US Constitution was, in this “exception” permitted.

In 1976 the United States Court of Appeals 7th Circuit rejected the union challenge to a Chicago Transit Authority regulation that required employees to submit blood and urine samples if they were involved in “any serious accident” or were suspect of being under the influence of drugs.  [2] Because the CTA administered the test based on an articulable suspicion the court balanced the government’s interest in testing suspected transit workers against the employees’ “reasonable expectation of privacy”.  The court concluded that the CTA’s “paramount interest” in the safety of mass transit customers “certainly outweigh[ed] any individual interest in refusing to disclose evidence … of drug abuse.”

From 1976 through 1980 the most humanitarian U.S. president of the modern era, Jimmy Carter had little use for drug testing, but when the Hollywood cowboy came to Washington in 1981, Ronald Reagan declared a renewed war on drugs and embraced the Whiz Quiz as his favorite weapon.

By 1982 the US Navy started drug testing all its personnel. 

That was the year High Times magazine became the first nationwide publication to feature a cover story on drug testing.  “The Golden Swindle” was a prophetic piece of investigative journalism by the most prolific writer in magazines’ history, my friend, the indefatigable Dean Latimer: 

“Big Brother is watching you pee,” Dean wrote.  “The EMIT Urinalysis is already rampant in factories, prisons and the military to sniff out dope smokers.  The authorities want it in professional sports and schools next.  Just because it doesn’t work isn’t stopping them…” [3]

It was the first piece investigative journalism exposing the inherent flaws in drug test science, and it inspired several generations of reporters to press forward and continue the story, including me.

Latimer should have won the Pulitzer Prize.

As drug testing in the public sector expanded, the lower federal courts tried to slow it down.  Despite the Suscy decision ten years earlier, during the first half of the 1980s the lower federal courts consistently struck down the public sector drug test as an unreasonable search and by 1986 the first rounds of appeals were heard.

Two U.S. District Courts ruled that drug testing firefighters without individualized “reasonable suspicion” was in violation of the fourth amendment despite the State’s arguments that it had both a compelling interest in having its fire fighters free from drugs and “the presumption that fire-fighters who live in the same quarters… routinely undress in each other’s presence, and use common restroom facilities are consequently subject to less of a degree of privacy than are ordinary citizens”. 

[4] In Patchogue-Medford Congress of Teachers v. Board of Education the New York State Court of Appeals rejected a urinalysis program for all probationary teachers, and in Washington D.C. when the district court allowed the random drug testing of school bus attendants, the D.C. appellate court reversed that decision and saved Otto’s job. [5] In 1987 the United States Eighth Circuit Court of Appeals, citing the 1975 administrative search exception for military personnel, found urine testing of federal prison guards to be constitutional [6] and in 1988 the same court citing the same precedent found that urine testing of nuclear power plant employees would also be permissible. 

To be continued…

Footnotes

[1]  In 1966 the Supreme Court declared in Schmerber v. California that a blood test without consent to be a search within the meaning of the fourth amendment and certain standards were applied to that search “reasonable” under the Bill of Rights. Later courts tended to cite Schmerber v. California as precedent when considering the legal basis of urine testing.

[2] Division 241 Amalgamated Transit Union v. Suscy

[3] EMIT is an acronym for Enzyme Multiplied Immunoassay Technique and it is the least expensive and most common drug screen still used in workplace drug testing today.

[4] Lovvorn v. City of Chattanooga & Capua v. City of Plainfield, 643 F. Supp. 1507, 1513-20 (D.N.J. 1986)

[5] Patchogue-Medford Congress of Teachers v. Board of Ed., 119 A.D. (1986) & Jones v. McKenzie, 628 F. Supp. 1500, (D.D.C. 1986), rev’d, 833 F.2d 335 (D.C. Cir. 1987). 

[6] McDonell v. Hunter, 809 F. 2d 1302]

[7] Rushton v. Nebraska Public Power District, 844 F. 2D 562]

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