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Hollywood's War on Drugs
By Pamela Kothari, March 1999
The war on drugs has led voters and judges to give legislators immense leeway in defining drug policy under the rubric of "zerotolerance." The sacrifice of constitutional protections in the name of curbing drug abuse is perhaps best illustrated in the mandatory drug testing policies adopted by many employers.
Despite obvious privacy and constitutional issues, mandatory urine testing for drugs has become commonplace throughout both the public and private sector with little regard to Fourth Amendment protections or consideration to the personal privacy of workers. The courts have upheld mandatory drug testing, even in the absence of evidence of drug use, for employees that are in "safety sensitive" positions such as workers involved in public transportation and those whose jobs require that they carry weapons. However, the tide against such widespread constitutional infractions may be slowly turning. The 1997 U.S. Supreme Court ruling in Chandler v. Miller overturned a Georgia law requiring candidates for office to submit to suspicionless urine testing. Also, questions about the effectiveness of the tests themselves and a lack of correlation between job performance and test results has led many to rethink the invasive practice of demanding body fluids as a condition of employment.
The ACLU is challenging the privacy abuses involved in mandatory drug testing with a lawsuit in U.S. District Court in Fort Lauderdale on behalf of Thomas Baron. Baron worked in the City of Hollywood's Treasury Division for three months as an employee of Interim Accounting Professionals, a temporary accounting firm. His mastery at spreadsheets and his ability to balance the City's finances led his supervisor to affectionately dub him "Magic Man." Impressed by his accounting talents, the Treasury Division delegated additional responsibilities to Baron, and then offered him a permanent position contingent upon his "peeing in a dixie cup." Feeling humiliated and disgusted, Baron refused and the city withdrew its offer of employment.
Baron then turned to the ACLU to challenge the violation of his Fourth Amendment right to be free from unreasonable searches and seizures. "I've never had to give any part of my body to get any kind of a job before," Baron said.
The lawsuit, filed by ACLU's Broward County Chapter, argues that the City of Hollywood cannot impose drug tests on prospective employees whose jobs do not involve either drug interdiction or public safety. These criteria are taken from the Court's ruling in Chandler, in which Justice Ruth Bader Ginsburg wrote that requiring elected officers to submit to a drug test did "not fit within the closely guarded category of constitutionally permissible suspicionless searches."
To be reasonable under the Fourth Amendment, a search must be based on individualized suspicion of wrongdoing. "The City of Hollywood incorrectly believes that it has the right to require searches of bodily fluids in order to judge whether someone can perform the job of an accountant," said ACLU Cooperating Attorney Colleen O'Loughlin, of the Hollywood lawfirm of Hess & O'Laughlin, who is handling the case with cocounsel Ephraim Hess. "Requiring urine tests for public employees like Baron is both unnecessary and unconstitutional," she added.
Drug testing procedures have also come under attack as individuals who are on prescription medication have tested positive even though they have never participated in illicit drug use. Even such innocuous substances as decongestants and diet pills have resulted in false positives for amphetamines and poppy seeds, which are found on various breads, can lead to positive test results for opiates.
Despite these developments, workplace drugtesting is more prevalent than ever. Some 43.7% of American workers are subject to drug tests, and 98% of Fortune 200 companies have some sort of drug testing, a threefold increase since 1987.
Bypassing the Constitution and disregarding the Fourth Amendment will not curb drug abuse. It will only erode the civil liberties that are guaranteed to individuals in the Bill of Rights. As Justice Antonin Scalia wrote in his dissenting opinion in National Treasury Employees Union v. Von Raab, urinalysis testing was "a kind of immolation of privacy and human dignity in symbolic opposition to drug use," adding that "symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs cannot validate an otherwise unreasonable search."
But it takes people with the courage of Thomas Baron to stand up to government abuses for constitutional freedoms to be preserved for everyone.
Pamela Kothari is an intern at the ACLU of Florida. A senior at the University of Miami, she is majoring in finance and plans to graduate in May and enter the Peace Corps.
