Attorney General Argues the Case For Drug Testing

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Washington--In a rare appearance before the U.S. Supreme Court, Attorney General Richard Thornburgh last week urged the justices to back a federal drug-testing policy that could set the pattern for similar requirements for teachers and other school employees.

Presenting the Reagan Administration's case in a dispute involving railroad employees, Mr. Thornburgh contended that the government's interest in ensuring the safe operation of trains far outweighs workers' Fourth Amendment right to be free from unreasonable searches.

"Surely, testing jockeys of these mammoth rolling time bombs should be permitted," the Attorney General said, noting that the Court had let stand an appellate ruling that upheld a testing requirement for racehorse riders.

Solicitor General Charles Fried offered similar arguments in a second lawsuit over the Customs Service's rule forcing employees seeking promotions to certain "sensitive" posts to submit to drug testing. According to Mr. Fried, it is "entirely reasonable" to require those on the front lines of the nation's drug-interdiction effort to go through this "rite of passage."

Unions representing teachers, school-bus drivers, and other school workers have been watching the cases closely because a handful of school districts have adopted testing programs, saying they are needed to ensure school safety and to provide students with positive role models. Rulings by the Court in favor of the government could prompt an explosion in the number of such programs.

Thus far, state and lower federal courts have tended to hold in favor of the unions in school-related drug-testing cases.

Continued on Page 18

Thornburgh Urges Court To Uphold

Drug-Testing Policies

"It is clear thatthese searches arebeing carried out inan area of intensegovernment interest."--Richard Thornburgh Continued from Page 1

For example, New York's highest court struck down a district's testing requirement for probationary teachers in 1987, holding that school officials had no basis for suspecting that drug abuse was a major problem among employees.

In a second case that has been appealed to the Supreme Court, a federal appellate panel ruled last year that although the District of Columbia's motive for testing school-transportation workers was constitutionally sound, the particular urine test it used could not positively determine on-the-job impairment and thus was invalid.

State and federal courts also have been asked to rule on the constitutionality of testing requirements for students. In general, those courts have struck down blanket testing programs affecting all students in a school, but have upheld programs for athletes and participants in extracurricular activities.

High-Stakes Cases

The Attorney General's appearance before the Justices in the first case, Burnley v. Railway Labor Executives' Association (Case No. 87-1555), was intended to underscore the importance that the Administration places on drug testing as a means to combat crime.

The move may have backfired, however, as Mr. Thornburgh's courtroom skills were clearly rusty. On several occasions, he was unable to answer questions posed by the Justices, saying at one point, "I will not try to palm myself off as an expert" on the issue.

The Burnley case stems from a Transportation Department rule issued in the wake of an Amtrak train wreck in Maryland that killed several people and injured more than 100.

The regulation, which was struck down by an appellate court, requires rail employees involved in accidents to submit urine and blood samples shortly after the incidents to be tested for the presence of drugs and alcohol. A positive test result could eventually lead to a worker's dismissal.

Mr. Thornburgh told the Court the policy's objective is to protect the safety of rail workers, train passengers, and members of communities that trains pass through.

Under the Fourth Amendment, he said, employers do not have to meet the legal standard of "probable cause" or even the lower hurdle of "reasonable suspicion" in order to force workers to submit to testing.

Rather, he argued, the Constitution only requires a balancing test that weighs a compelling government interest against workers' rights. And in this instance, he continued, the balance is in the government's favor.

"It is clear that these searches are being carried out in an area of intense government interest," Mr. Thornburgh told the Justices. "This is not a matter of little consequence. Locomotives are potential time bombs that can put the public in danger."

That argument apparently did not convince Associate Justice John Paul Stevens.

"You test after this time bomb explodes," he noted. "Where's the deterrence? How do we know it works?"

"This program is not foolproof," the Attorney General replied. "But it is a reasonable response to the phenomenon of drug and alcohol involvement in accidents. There will never be a complete prophylactic effect."

Policy's Breadth

Earlier in the hearing, Mr. Thornburgh found himself mired in a debate with the Justices on the question of whether the policy is unconstitutionally overbroad.

"Are dining-car operators covered by this rule?" asked Associate Justice William J. Brennan Jr.

"I'm not sure," he responded.

"Yes, they are," interjected Associate Justice Thurgood Marshall, the son of a dining-car worker.

"I guess I'll have to defer to that expert testimony," the Attorney General said. Later, he added that the "main focus" of the rule "is on those with manual, literal control of the train."

Mr. Thornburgh also found himself being grilled by Justice Marshall on the validity of the tests' results.

"How accurate are the tests?" the Justice asked.

"As accurate as they can be. They're state of the art," he replied.

"Are they perfect or not?"

"Nothing is perfect in this imperfect world."

"Well, how perfect?"

"There is some medical difference of opinion," the Attorney General was forced to concede.

"If you have a drink 20 hours be8fore you go to work, will that get you in trouble?" Justice Marshall asked.

"Not necessarily," Mr. Thornburgh responded. "If something shows up, further investigation is suggested. The process is uncertain and cumulative in nature."

Tests Said Invalid

The lawyer for the rail workers, Lawrence M. Mann, received equally rough treatment at the hands of the Justices.

Mr. Mann argued that the ruleis invalid because the tests used cannot determine whether a employee was impaired while on duty and thus cannot achieve the government's stated purpose.

"The union has no problem forbidding drug use on the job," he said. "But there is no nexus to drug use on the job if an employee is found to have used drugs in the privacy of his own home up to 60 days before an accident."

"Are you saying that it's unreasonable for a railroad to say, 'We don't want cocaine users driving our trains?"' an apparently incredulous Associate Justice Antonin Scalia asked. "Is it not reasonable to assume a user is more likely to use drugs on the job than someone who doesn't use drugs at all?"

"The concern should not be what one does in the privacy of one's home, but what one does on the job," Mr. Mann replied.

Mr. Mann also contended that the requirement violates workers' rights because the urine and blood samples are not tested by certified laboratories.

"I don't see what that has to do with an expectation of privacy," Justice Scalia said. "It seems that you're saying that the policy is O.K. if the test is done by a good scientist and it's not if it's done by a bad scientist."

Mr. Mann ran into more trouble later when he asserted that the fact that drug usage among rail workers is rising indicates that the testing requirement cannot help the government achieve its stated purpose.

"So the greater the prevalence of drug usage, the less need there is for a test?" asked Associate Justice Anthony M. Kennedy.

"The fact is that this rule does not get to the problem," Mr. Mann replied.

Customs Service Case

The combative questioning carried over into the second case, National Treasury Employees Union v. Von Raab, in which a federal appeals court upheld a rule that forces Customs Service employees seeking promotions to "critical-sensitive" positions to have their urine tested for the presence of drugs.

In response to a question by Justice Kennedy, Solicitor General Fried agreed that the program's primary aim is not to assure public safety, but rather the symbolic goal of "vindicating the image of an elite corps."

"These persons are personally involved in drug interdiction," he said. "They should not be customers of the trade they are trying to halt. The service is entitled to take a very fine filter to show the public that persons on the border across which drugs flow are not drug users themselves."

"Would that goal of symbolism support a wider range of investigations and searches?" asked Justice Stevens.

"So long as they are minimally intrusive," Mr. Fried replied.

"Is it safe to assume that most of these persons are drug-free?" the Justice asked.

"Yes, but not entirely," the Solicitor General responded. "The number [of drug users] is not zero."

'Innocent' Victims

Lois G. Williams, the lawyer for the Customs Service employees who filed the suit, said the requirement causes "a large number of innocent persons to be subjected to a degrading experience when the government has no reason to suspect them of abusing drugs."

The government has less intrusive means of achieving its goal, she said, such as more vigorous investigations by the agency's internal-af4fairs division when drug use is suspected.

In addition, she said the Constitution requires that an employer must have "probable cause" to suspect that a drug test will uncover evidence of drug usage before it can order an employee to submit to urinalysis.

"The selection of persons in this search is perverse because these people have already been identified as meriting promotion," Ms. Williams asserted. "Common sense tells you that they are the ones least likely to pose a problem."

The Court could hand down its decisions in the two cases by early next year.

Vol. 08, Issue 10

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