High Court Says Drug-Test Rules Are Permissible

By Tom Mirga — March 29, 1989 6 min read

Washington--The U.S. Supreme Court voted 7 to 2 last week to uphold federal drug- and alcohol-testing requirements for railroad workers involved in accidents.

But the Court upheld a similar drug-testing requirement for Customs Service employees who carry guns or are involved in drug interdiction by only a 5-to-4 margin. And it ordered a lower court to hold additional hearings on whether workers in the agency who handle classified documents can be forced to take such tests.

The narrowly crafted rulings in the two cases were the first by the Court on the sensitive issue of drug testing. They are expected to be followed by a series of decisions in which the Justices will try to further balance the Fourth Amendment right of workers to be free from unreasonable searches against employers’ interest in maintaining a drug-free workplace.

The drug-testing debate has become increasingly heated in the field of education as the number of school districts adopting policies affecting students and teachers, bus drivers, and other employees grows.

In addition, the Interior Department has announced plans to test some 3,600 teachers and other workers in Bureau of Indian Affairs schools, and the Education Department says it intends to test about 200 employees ranging from Presidential appointees to chauffeurs.

A federal district judge has issued an injunction blocking the bia program from taking effect, and the union representing ed workers says it will seek a similar curb.

Writing for the majority in the railroad case, Skinner v. Railway Labor Executives’ Association (Case No. 87-1555), Associate Justice Anthony M. Kennedy held that the federal government’s interest in ensuring public safety far outweighs railroad workers’ right to be free from unreasonable searches. Associate Justices Thurgood Marshall and William J. Brennan Jr. were the only dissenters to the ruling.

Under the federal policy, workers involved in accidents are required to submit to blood, urine, and breath testing. Those who refuse to take the tests can be suspended for up to nine months, and those who test positive can be fired.

“An idle locomotive, sitting in the roundhouse, is harmless,” Justice Kennedy wrote in his first major opinion since joining the bench last year. “It becomes a lethal weapon when operated negligently by persons who are under the influence of alcohol or drugs.”

In upholding the drug-testing rule, Justice Kennedy rejected the union’s argument that the Fourth Amendment requires railroads to obtain a court warrant before forcing an employee to submit to testing.

He also said the companies do not have to meet even the less strict constitutional standards of probable cause or individualized suspicion before requiring a worker to take a test.

“In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion,” he wrote.

Justice Kennedy noted that railway employees’ expectation of privacy is “diminished” because they work in a “pervasively” regulated industry that has a long history of drug- and alcohol-related accidents.

“By contrast,” he continued, “the government interest in testing without a showing of individualized suspicion is compelling. Employees subject to the test discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disasterous consequences.”

Justice Kennedy also said that the testing policy furthers the government’s goal of deterring drug use among railroad workers.

“By ensuring that employees in safety-sensitive positions know they will be tested” after an accident, the timing of which cannot be predicted, the rule increases “the likelihood that employees will forgo using drugs or alcohol while subject to being called to duty,” he reasoned.

The Court’s majority citied similar public-safety concerns in upholding the testing requirement for certain Customs Service employees seeking promotions to posts that require the carrying of firearms or are directly involved in drug interdiction.

“It is readily apparent that the government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment,” Justice Kennedy wrote for the majority in National Treasury Employees Union v. Von Raab (No. 86-1879).

Likewise, he continued, the public interest “demands effective measures to prevent the promotion of drug users to positions that require the incumbent to carry a firearm.”

“We agree with the government that the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force,” Justice Kennedy wrote.

The Court, however, declined to decide whether a provision of the requirement affecting employees who handle classified material is constitutional.

According to Justice Kennedy, the record in the case failed to establish whether all of the employees targeted by the provision--which includes student interns and messengers--actually have access to8sensitive documents.

The Justices sent the case back to a federal appellate court and ordered it to develop a fuller record on that issue.

Associate Justice Antonin Scalia--who is considered the Court’s most conservative member by many legal scholars--wrote a sharply worded dissent that was supported by Associate Justice John Paul Stevens. Both Justices joined with the majority in the Skinner case.

According to Justice Scalia, the Customs Service failed to prove that employee drug abuse was related to “even a single instance ... of bribe-taking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information.”

The “only plausible explanation” for the policy’s adoption, he said, was the government’s desire, in the words of the Commissioner of the Customs Service, “to set an important example in our country’s struggle with this most serious threat to our nation’s health and security.”

“I think it obvious that this justification is unacceptable,” Justice Scalia wrote. "[S]ymbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.”

“In my view, the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use,” he said.

Justices Marshall and Brennan also filed a short dissenting opinion in the case restating the main points of their argument in the railroad suit.

“The issue ... is not whether declaring a war on illegal drugs is good public policy,” Justice Marshall wrote in the Skinner case. “Rather, the issue here is whether the government’s deployment in that war of a particularly draconian weapon ... comports with the Fourth Amendment.

“Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great,” he continued. “History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem to extravagant to endure.”

A version of this article appeared in the March 29, 1989 edition of Education Week as High Court Says Drug-Test Rules Are Permissible