Drug Testing: Constitutional And Policy Implications

• DOI: 10.1177/088740349100500101
• Published date: 01 March 1991
• Date: 01 March 1991
• Subject Matter: Articles

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Drug Testing: Constitutional And
Policy Implications
Ernest Giglio
Lycoming College
Abstract
Let us assume the following three scenarios. Scenario one involves a
professional football player who tests positive for drugs for the third time
and under National Football League rules is suspended indefinitely. The
second scenario concerns a railroad engineer whose urinalysis sample taken
after a serious accident reveals drug usage and who is subsequently dismissed
from his Conrail job. The final scenario includes a recent college graduate
who applies for a position with a Fortune 500 company but does not get
the job because she fails the required pre-employment drug test.
What do these three people share in common? They all tested positive
for drug use and suffered economic loss, and possibly psychological pain,
as a consequence. But were their rights violated? Was their privacy intruded
upon? Was the testing procedure fair and accurate? Did the testing violate
the American legal principle that guilt is individual rather than collective?
These are some of the questions raised by government-mandated, as well
as employer-required, drug testing. As courts and legislative bodies wrestle
with these questions, the policy consequences of their decisions and enact-
ments need to be considered. This paper purports to examine the constitutional
issues raised by drug testing, how the courts have resolved them, and the
policy implications that have resulted from their actions.
Nature And Scope Of The Problem
The threshold question in any discussion related to drug testing is whether,
in fact, the United States has a drug problem of such magnitude that mandatory
drug testing is required to control it? The proponents of drug testing maintain
that drug abuse is a serious social and economic problem. However, no
government agency or statistical bureau knows with any degree of certitude
A version of this paper was presented at the 1991 Annual Meeting of the Southwestern Social
Science Association, San Antonio, Texas, March 27-30, 1991.

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the number or composition of the drug population although the National
Institute on Drug Abuse (NIDA) estimates the number of drug users at four
million (NY Times, Nov. 11 1989) while other reports (Tysse and Dodge,
1989) reveal that in 1988 approximately 28 million Americans used an illegal
drug and that 37 percent of Americans over the age of twelve admitted to
using drugs during 1989 (Watts, 1990). Although evidence indicates that
drug usage peaked in 1979 and declined in the 1980s, the United States still
has the highest rate of drug abuse among the world’s industrialized nations
(Tysse and Dodge, 1989). The economic costs of drug abuse are reported
to be quite high. It is estimated that the manifest aggregate annual costs of
drug usage to the country is 60 billion dollars (Tysse and Dodge, 1989), a
dollar amount supported by a 1989 Federal Study that included among the
costs medical expenses, costs associated with worker absenteeism, work ac-
cidents, property damage and lost productivity, and costs associated with
law enforcement (Labaton, 1989). The figure excludes latent indirect costs,
such as damage to the government or corporate image and the adverse affect
on employee morale. These statistics led political economist Robert Reich
to conclude that &dquo;Narcotics is one of America’s major industries, right up
there with consumer electronics, automobiles and steelmaking&dquo; (Labaton,
1989, D6).
Proponents of drug testing also cite the social costs of drug usage. One
commentator estimates that anywhere from 27 to 110 billion dollars in drug
trafficking each year serves as a contributing factor to crime (Adams, 1987).
While the empirical data fail to provide conclusive evidence to the question
of whether drug use leads to criminal behavior or whether criminal activity
leads to drug usage, studies indicate that a correlation, if not a causation,
exists between drug usage in the community and crime rates. For example,
a National Institute of Justice (NIJ) report (Drug Testing, 1987) stated that
half of those arrested for serious crimes in Washington, D.C. and New York
City in recent years tested positive for drug use. Furthermore, the NIJ tracking
system indicates high levels of drug usage among felony arrests in urban
areas with some cities reporting positive test results for arrests in the 50-85
percent range (Tomry, 1990). In the nation’s capitol the number arrested
who tested positive for drugs dropped below 50 percent for the first time
in three years (Massing, 1990).
It has been found that drug usage also affects children and families. One
report discovered that an estimated 385,000 babies are bom to crack-addicted
mothers every year and that the hospital costs associated with their care
during their first year reached 2 1/2 billion dollars in 1988 (Felice, 1990).
It is further estimated that it would take another 72 billion dollars to see
them through high school (Labaton, 1989). Moreover, there is some evidence
to suggest a tentative correlation between drug usage and dropping out of
school (Felice, 1990) even though there has been a steady decline in cocaine
and crack usage by high school seniors according to a recent report by the

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University of Michigan Institute for Social Research (NY Times, Jan. 25,
1991). The supporters of drug testing, therefore, cite these social, economic,
and personal costs as evidence that a serious drug problem exists in the
United States that needs to be addressed.
On the other hand, the critics of drug testing do not deny the existence
of the problem but claim that it is exaggerated and, worse yet, that in im-
plementing drug testing policies government and employers violate our rights
under the Constitution. For example, the Executive Director of the American
Civil Liberties Union, in letters to The New York Times, (Nov. 20, 1989 and
Dec. 18, 1990), warned against the disastrous results of a government drug
policy analogous to prohibition, recommending instead decriminalization for
marijuana usage together with a larger financial commitment to treatment.
A
similar warning comes from a legal scholar who fears that public concern
over the war
on drugs will encourage the government to turn the drug problem
into another post-WWII McCarthy-type purge; only this time the victims
will not be suspected Communists but suspected drug users (Stem, 1986).
That dire prediction appears to be on the verge of reality, according to news
reports (NY Times, Feb. 23, 1991), as the Miami Beach, Florida Chief of
Police adopts a drug deterrent program that includes employer notification
of all drug-related arrests even though there has been no conviction. To
avoid the notification letter, the arrestee enrolls in a treatment program which
includes periodic monitoring. Another concern about drug testing involves
the toll it takes on law enforcement personnel engaged in the war against
drugs. Media stories of official corruption and misconduct are becoming
part of the daily news. One recent newspaper account (NY Times, Dec. 19,
1989) reported the prosecution of seven veteran federal Drug Enforcement
agents in three states who were indicted for illicit drug dealings. Reservations
also have been expressed regarding the accuracy of the instruments used to
record drug levels in urine samples. One opponent of drug testing reported
inaccurate results of up to 67 percent (Adams, 1987) and another critic cited
inaccurate results for the Enzyme Multiplied Immunoassay Technique (EMIT),
the most popular drug testing instrument, of as high as 25 percent, a figure
confirmed in urinalysis testing conducted by the New Jersey Department of
Corrections (Miller, 1986). The EMIT test, for instance, has been shown to
produce positive results after ingestion of poppy-seed bagels. The test also
has been accused of indiscriminately detecting codeine, a legitimate prescrip-
tion drug, along with heroin (Wish, 1990). In addition, the opponents of
drug testing are concerned that the test results do not necessarily indicate
that the subject was under the influence at the time the test was administered
nor can the test determine whether the amount of drug use impaired any
given individual’s level of performance (Adams, 1987). But the strongest
argument against drug testing comes from civil libertarians who maintain
that drug testing violates the individual’s privacy rights under the Fourth
Amendment: the tests constitute an illegal &dquo;search and seizure&dquo; since the

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results provide more personal information than possible drug usage, such as
illnesses and diseases, which may be unrelated to the purpose of the test
(McGovern, 1987). Such information may then be used adversely against
the individual in personnel decisions. In short, drug testing opponents claim
the tests are both unconstitutional and unwise as public policy.
The Fourth Amendment Issue
The constitutionality of drug testing raises the Fourth Amendment issue,
particularly the interpretation of the search and seizure provision by the
courts. The Fourth Amendment to the Bill of Rights was bom out of our
colonial experience with the hated &dquo;writs of assistance,&dquo; those general search
warrants which permitted the British to conduct searches of entire villages
without having to justify the intrusion into private homes. The Fourth Amend-
ment reads:
The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures,...