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ACLU Letter Urging Department of Juvenile Justice to Reconsider
Random Drug Testing of Employees
April 5, 2002
W.G. "Bill" Bankhead, Secretary
Department of Juvenile Justice
2737 Centerview Drive
Tallahassee, FL 32399-3100
Re: DJJ Policy 4.07 ? Drug Tests
Dear Secretary Bankhead:
We write regarding the recent announcement by the Department of Juvenile Justice that it has implemented random drug testing of its current employees and drug testing of prospective employees as a condition of employment.
While a safe, drug-free workplace is a laudable goal, clearly established law indicates that this newly announced policy violates the constitutional rights of many DJJ employees. The United States Supreme Court has clearly held that drug testing constitutes a search within the meaning of the Fourth Amendment and an intrusion into employees' privacy interests. And, while the Court has held drug testing of governmental employees is permissible in limited circumstances, the Court has not permitted such wide-spread testing as is being implemented by DJJ. See, e.g., Chandler v. Miller, 520 U.S. 305 (1997)(rejecting drug testing for political candidates and holding that only in cases "where risk to public safety is substantial and real," or where "public safety is genuinely in jeopardy" may suspicionless drug testing be considered "reasonable" for Fourth Amendment purposes).
Indeed, in a recent case in Florida, a federal court specifically held that across the board testing of applicants as a condition of employment violates the Constitution. See Baron v. City of Hollywood, 93 F.Supp.2d 1337 (S.D. Fla. 2000). See also Beattie v. City of St. Petersburg Beach, 733 F.Supp. 1455 (M..D. Fla. 1990)(holding suspicionless testing of city's firefighters to be unconstitutional absent history of substance abuse within the department)
Particularly similar to the DJJ's announced random testing policy was an attempt by the U.S. Department of Justice to implement a random drug testing program of prosecutors in criminal cases, employees with access to grand jury proceedings, and personnel who hold top secret national security clearances. Only the testing of those holding top secret clearances was permitted by the court; random testing of the other employees was found to be in violation of the employees' constitutional rights. See Harman v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989), cert. denied , 493 U.S. 1056 (1990).
In order to avoid inevitable litigation over legal principles already clearly established, we urge the Department to immediately revise its drug testing policy to conform with the U.S. Constitution and case law in which the courts have drawn a line between the desire of employers to maintain a drug-free workplace and the obligation of employers to respect the privacy, dignity and constitutional rights of employees.
The ACLU of Florida is prepared to represent any DJJ employee, or applicant for employment, whose constitutional rights are being abridged by the new DJJ policy.
Sincerely,
Randall C. Marshall
Legal Director
Howard L. Simon
Executive Director
