Governmental Drug Testing Programs: Legal and Constitutional Developments

Publication Date: November 2002

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Social conditions

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Abstract:

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 shown.

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.