Drug Testing (Update)

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Government drug testing of employees, students, and others such as persons on probation, is now a widespread and entrenched phenomenon. The chief constitutional limit on such testing is the fourth amendment prohibition on unreasonable search and seizures. Because courts agree that the collection and analysis of a person's blood, urine, or hair is a search, the key question is whether such testing is reasonable.

When the government conducts a search or seizure as part of a criminal investigation, reasonableness requires probable cause or reasonable suspicion that the individual has engaged in wrongdoing. But the requirement of individualized suspicion would doom modern drug testing programs because they are blanket, suspicionless searches of mostly innocent people. In a series of cases the Supreme Court excused the need for individualized suspicion when a search was conducted for a "special need" other than ordinary law enforcement. But it was unclear whether a special need was a standard for judging testing programs or simply an invitation to balance the "minimal" intrusion of drug testing against the important social problem the government was addressing.

In Vernonia School District 47J v. Acton (1995) the Court upheld random urinalysis of public school student athletes, saying that students in school had a reduced expectation of privacy; that being monitored while providing a urine specimen was no more intrusive than using a public restroom; and that testing was needed to combat a proven drug use problem in the schools. In dissent, Justice sandra day o'connor insisted that suspicionless testing was contrary to bedrock Fourth Amendment requirements and could only be justified if the government had a specific and substantial need to test and proved that a suspicion-based approach was unworkable.

The Court moved toward O'Connor's position in chandler v. miller (1997). Although the Court did not reverse any prior rulings, it said that suspicionless testing, even if only minimally intrusive, is permissible only if the government shows actual evidence of a drug use problem or real hazards flowing from possible drug use. The government must also explain why ordinary suspicion-based law enforcement methods are inadequate and show that its testing program actually responds to the problem it identified. In Chandler, the Court struck down a Georgia law that required all candidates for public office to undergo drug testing. Georgia failed to show there was any drug use problem among candidates or any danger to public safety. It also failed to show why ordinary public scrutiny of such officials was inadequate to deter or detect drug use.

Mary M. Cheh

(see also: Drug Regulation.)


Recent Development 1998 Reining in the National Drug Testing Epidemic: Chandler v. Miller. Harvard Civil Rights–Civil Liberties Law Review 33:253–272.

Zeese, Kevin 1996 Drug Testing: Legal Manual. Deerfield, Ill.: Clark Boardman Callaghan.

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