Mandatory Drug Testing
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ELIZABETH FARNSWORTH: The case before the Supreme Court comes from Georgia. It concerns drug testing and political candidates. We get a briefing on today’s arguments from NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. Thanks for being with us, Stuart.
STUART TAYLOR, The American Lawyer: Nice to be here.
ELIZABETH FARNSWORTH: What are the facts in this case?
STUART TAYLOR: The Georgia state legislature in 1990 prompted in part by the federal indictment of Washington, D.C. Mayor Marion Barry on drug charges, passed a new law that required anyone who wanted to run for election for any high office in the state of Georgia, governor, lieutenant governor, secretary of state, commissioner of agriculture, state legislature, including judges from the Supreme Court on down had to pass a drug test first, specifically they had to submit a certificate showing that they are going to a state-approved laboratory, a doctor’s office, given a urine specimen, passed the test within 30 days of filing for the election. Two Libertarian candidates for state office in the 1994 election sued, claiming that this drug testing law violated their rights, their Fourth Amendment rights against unreasonable search and seizures, and their First Amendment rights of free speech. And the lower courts projected that claim, the Court of Appeals by a two to one vote. The candidates approved to the appeal to the Supreme Court and the Supreme Court will now decide whether it’s constitutional.
ELIZABETH FARNSWORTH: In the lower court cases the state of Georgia acknowledged that there was no evidence that people running for office had particular drug problems, right? So that’s not an issue here.
STUART TAYLOR: They did, and they had to acknowledge it; again in the Supreme Court argument, the assistant attorney general, Patricia Gilday was questioned carefully by various Justices and admitted that there had been so such problem in Georgia but said, well, there might be a problem someday and we ought to be able to do this anyway.
ELIZABETH FARNSWORTH: Tell us what else happened in the court today. How did the arguments go and what kinds of questions did the Justices ask?
STUART TAYLOR: One of the candidates who had run for lieutenant governor in ’94, a man named Walker Chandler, argued on his own behalf. He went first since he was appealing. And the Justices asked him a lot of tough questions, and he didn’t have many answers for them–a lot of I don’t knows, I don’t know, I don’t know, and some of them were somewhat frustrated with his inability to answer their questions. But they also seemed, some of them, very sympathetic to his point of view. Justice Scalia in particular kept trying to help him. At one point when Justice Kennedy was pushing him to say, well, it would be okay just to have a physical exam requirement, wouldn’t it, and Mr. Chandler said, well, I guess that would be okay. And Scalia said, what do you mean you guess that would be okay, and you’d have to strip, wouldn’t you? That would be a search, wouldn’t it? You object to that, don’t you? And Mr. Chandler guessed that he did object. But various Justices I think showed their hands both in questioning him and in questioning Assistant Attorney General Gilday. And they’re very skeptical in questioning her as to what is the reason for this law, if there isn’t any real drug problem there?
Also, Justice Breyer emphasized it would be very easy for a drug user to evade detection under this law because the candidate gets to choose when the test is performed. So Breyer said, what’s the purpose of this thing essentially? Is it just symbolic? Is it a political statement? And the state’s lawyer said there was–it was a symbolic political statement, but it was also a way of catching people who might be very serious drug abusers. But from the way the questioning went, it looked like this could be–I wouldn’t predict it, but it’s a possibility that this may be the first drug testing law the Supreme Court ever strikes down.
ELIZABETH FARNSWORTH: Now the people, the Libertarians who were running office actually said that it violated their constitutional grounds on two–in two different ways, right, both their Fourth Amendment and also First Amendment rights.
STUART TAYLOR: Yes. The First Amendment–
ELIZABETH FARNSWORTH: How does that go?
STUART TAYLOR: The First Amendment claim was, in essence, we don’t believe in drug laws, and we don’t want to have to assert or symbolically that we do by assuring the state that we believe in them somehow by complying with them, even though, in fact, they did comply after failing to get the lower court to strike down the law. But the Justices did not seem to want to spend much time on the First Amendment argument, and none of them indicated they took it very seriously. They were very interested in the Fourth Amendment argument as Justice Stephens, among others said, and they pressed the state lawyer with questions like, well, suppose you wanted to require that anybody standing for office submit to a full search of their house just to make sure there aren’t any drugs hidden in there; would that be constitutional? And the state lawyer admitted that it not. Somebody else said, what about all your private papers, hand over all your financial records, not just a financial disclosure statement, everything, all your bank statements, would that be constitutional? The state lawyer admitted that it would not. And the Justices Scalia, Souter, among others, were pressing for-well, why should you submit to a body search if, if you wouldn’t have to submit to a home search?
ELIZABETH FARNSWORTH: What precedents exist for deciding this case?
STUART TAYLOR: There have been three drug testing cases, all of which the Supreme Court has upheld a particular program. Two were in 1989. One of them involved train crews involved in accidents and the justification for testing there was there was–there was a lot of proof that train accidents are often caused by drug abuse or alcohol abuse and that there was a pretty good likelihood that this would be a way of detecting the cause. And that was seven-two. But the same day a much closer decision, five-four, upheld a testing program at customs employees seeking promotions, and that one Justice Scalia dissented very forcefully, signaling that he’s not going to go along all the time. And the third case was in 1995 involving testing of high school students who want to go out for sports teams. The court upheld that with some emphasis on the fact that high school students don’t have quite the same First Amendment rights that everybody else might have.
ELIZABETH FARNSWORTH: And I assume these cases came up today in the arguments. They were referring to them, both sides?
STUART TAYLOR: They did. Both sides referred to them. The state said that our program should be upheld on the same basis as these were, and the plaintiffs–the candidates said this program doesn’t have the same special justifications that those programs did, and should be struck down. Justice O’Connor, for one, who dissented in the school drug testing case stressed today that there didn’t seem to be any very compelling showing of a special need, because these are what are called suspicionless searches. Typically, a law enforcement search has to be justified by some reason to suspect that the individual to be searched may have committed some crime. Here you’re searching everybody who wants to do a particular thing, and there’s no reason for suspecting any of them. And the court has required special justifications.
ELIZABETH FARNSWORTH: And briefly, what would be the implication of striking down this Georgia law? Is this something that is–this is not very widespread in this country, right, this kind of law?
STUART TAYLOR: No. As far as I’m aware, it is the only such law. The major implication would be it would finally show that there’s a line the Supreme Court is not going to allow governments to cross in terms of these proliferating drug testing requirements which they’ve upheld and upheld and upheld. If they strike one down, it says, okay, there are some limits here. It would also obviously deter other states from adopting similar laws and some of the Justices seem to be worried that they’d better be careful less they cast out, for example, in the constitutionality of financial disclosure laws for public officials which could be attacked under a somewhat similar rationale.
ELIZABETH FARNSWORTH: Well, thank you very much, Stuart.
STUART TAYLOR: Thank you.