Drug Testing.—In two 1989 decisions the Court held that no warrant, probable cause, or even individualized suspicion is required for mandatory drug testing of certain classes of railroad and public employees. In each case, "special needs beyond the normal need for law enforcement" were identified as justifying the drug testing. In Skinner v. Railway Labor Executives' Ass'n,311 the Court upheld regulations requiring railroads to administer blood, urine, and breath tests to employees involved in certain train accidents or violating certain safety rules; upheld in National Treasury Employees Union v. Von Raab312 was a Customs Service screening program requiring urinalysis testing of employees seeking transfer or promotion to positions having direct involvement with drug interdiction, or to positions requiring the incumbent to carry firearms. The Court in Skinner found a "compelling" governmental interest in testing the railroad employees without any showing of individualized suspicion, since operation of trains by anyone impaired by drugs "can cause great human loss before any signs of impairment become noticeable."313 By contrast, the intrusions on privacy were termed "limited." Blood and breath tests were passed off as routine; the urine test, while more intrusive, was deemed permissible because of the "diminished expectation of privacy" in employees having some responsibility for safety in a pervasively regulated industry.314 The lower court's emphasis on the limited effectiveness of the urine test (it detects past drug use but not necessarily the level of impairment) was misplaced, the Court ruled. It is enough that the test may provide some useful information for an accident investigation; in addition, the test may promote deterrence as well as detection of drug use.315 In Von Raab the governmental interests underlying the Customs Service's screening program were also termed "compelling": to ensure that persons entrusted with a firearm and the possible use of deadly force not suffer from drug-induced impairment of perception and judgment, and that "front-line [drug] interdiction personnel [be] physically fit, and have unimpeachable integrity and judgment."316 The possibly "substantial" interference with privacy interests of these Customs employees was justified, the Court concluded, because, "[u]nlike most private citizens or government employees generally, they have a diminished expectation of privacy."317
311 489 U.S. 602 (1989).
312 489 U.S. 656 (1989).
313 489 U.S. at 628.
314 Id. at 628.
315 Id. at 631-32.
316 Von Raab, 489 U.S. at 670-71. Dissenting Justice Scalia discounted the "feeble justifications" relied upon by the Court, believing instead that the "only plausible explanation" for the drug testing program was the "symbolism" of a government agency setting an example for other employers to follow. 489 U.S. at 686-87.
317 Id. at 672.
Emphasizing the "special needs" of the public school context, reflected in the "custodial and tutelary" power that schools exercise over students, and also noting schoolchildren's diminished expectation of privacy, the Court in Vernonia School District v. Acton318 upheld a school district's policy authorizing random urinalysis drug testing of students who participate in interscholastic athletics. The Court redefined the term "compelling" governmental interest. The phrase does not describe a "fixed, minimum quantum of governmental concern," the Court explained, but rather "describes an interest which appears important enough to justify the particular search at hand."319 Applying this standard, the Court concluded that "deterring drug use by our Nation's schoolchildren is at least as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs . . . or deterring drug use by engineers and trainmen."320 On the other hand, the interference with privacy interests was not great, the Court decided, since schoolchildren are routinely required to submit to various physical examinations and vaccinations. Moreover, "[l]egitimate privacy expectations are even less [for] student athletes, since they normally suit up, shower, and dress in locker rooms that afford no privacy, and since they voluntarily subject themselves to physical exams and other regulations above and beyond those imposed on non-athletes."321 The Court "caution[ed] against the assumption that suspicionless drug testing will readily pass muster in other contexts," identifying as "the most significant element" in Vernonia the fact that the policy was implemented under the government's responsibilities as guardian and tutor of schoolchildren.322
Seven years later, the Court in Board of Education v. Earls29 extended Vernonia to uphold a school system’s drug testing of all junior high and high school students who participated in extra-curricular activities. The lowered expectation of privacy that athletes have “was not essential” to the decision in Vernonia, Justice Thomas wrote for a 5-4 Court majority.30 Rather, that decision “depended primarily upon the school’s custodial responsibility and authority.”31 Another distinction was that, although there was some evidence of drug use among the district’s students, there was no evidence of a significant problem, as there had been in Vernonia. Rather, the Court referred to “the nationwide epidemic of drug use,” and stated that there is no “threshold level” of drug use that need be present.32 Because the students subjected to testing in Earls had the choice of not participating in extra-curricular activities rather than submitting to drug testing, the case stops short of holding that public school authorities may test all junior and senior high school students for drugs. Thus, although the Court’s rationale seems broad enough to permit across-the-board testing,33 Justice Breyer’s concurrence, emphasizing among other points that “the testing program avoids subjecting the entire school to testing,”34 raises some doubt on this score. The Court also left another basis for limiting the ruling’s sweep by asserting that “regulation of extracurricular activities further diminishes the expectation of privacy among schoolchildren.”35
318 515 U.S. 646 (1995).
319 Id. at 661.
321 Id. at 657.
322 Id. at 665.
29 536 U.S. 822 (2002).
30 536 U.S. at 831.
31 536 U.S. at 831.
32 536 U.S. at 836.
33 Drug testing was said to be a “reasonable” means of protecting the school board’s “important interest in preventing and deterring drug use among its students,” and the decision in Vernonia was said to depend “primarily upon the school’s custodial responsibility and authority.” 536 U.S. at 838, 831.
34 Concurring Justice Breyer pointed out that the testing program “preserves an option for a conscientious objector,” who can pay a price of nonparticipation that is “serious, but less severe than expulsion.” 536 U.S. at 841. Dissenting Justice Ginsburg pointed out that extracurricular activities are “part of the school’s educational program” even though they are in a sense “voluntary.” “Voluntary participation in athletics has a distinctly different dimension” because it “expose[s] students to physical risks that schools have a duty to mitigate.” Id. at 845, 846.
35 536 U.S. at 831-32. The best the Court could do to support this statement was to assert that “some of these clubs and activities require occasional off-campus travel and communal undress,” to point out that all extracurricular activities “have their own rules and requirements,” and to quote from general language in Vernonia. Id. Dissenting Justice Ginsburg pointed out that these situations requiring a change of clothes on occasional out-of-town trips are “hardly equivalent to the routine communal undress associated with athletics.” Id. at 848.
In two more recent cases, the Court found that there were no "special needs" justifying random testing. Georgia's requirement that candidates for state office certify that they had passed a drug test, the Court ruled in Chandler v. Miller323 was "symbolic" rather than "special." There was nothing in the record to indicate any actual fear or suspicion of drug use by state officials, the required certification was not well designed to detect illegal drug use, and candidates for state office, unlike the customs officers held subject to drug testing in Von Raab, are subject to "relentless" public scrutiny. In the second case, a city-run hospital's program for drug screening of pregnant patients suspected of cocaine use was invalidated because its purpose was to collect evidence for law enforcement.324 In the previous three cases in which random testing had been upheld, the Court pointed out, the "special needs" asserted as justification were "divorced from the general interest in law enforcement."325 By contrast, the screening program's focus on law enforcement brought it squarely within the Fourth Amendment's restrictions.
323 520 U.S. 305 (1997).
324 Ferguson v. City of Charleston, 532 U.S. 67 (2001).
325 532 U.S. at 79.