Drug Testing

Drug testing in the United States began with the explosive use of illegal drugs,
in order to curb drug abuse. This began during the Vietnam War with drug use at
a climax. In general, Drug testing is a way to detect illegal drug use and deter
it, usually by Urinalysis. Drug testing in the United States violates a
citizens right to unreasonable search and seizures along with jeopardizing
ones freedom. Drug testing is not only an unreliable invasion of a persons
privacy but it assumes that one is guilty before submitting to the test. Drug
testing began to take place in the mid 1960s when drugs like Marijuana,
hallucinogens and other drugs were becoming widespread (Stencel, pp.201). The
military implemented mandatory drug testing because of the widespread use and
the number of Vets that were returning home because of addiction. Ronald Reagan
pushed for employers to implement drug testing and even had himself screened for
illegal drugs to encourage employers and to reduce opposition to testing (Stencel,
pp. 200). “The increased concern about drug abuse has, in part, ben the result
of the early 1986 appearance on the streets of crack-a new, powerfully addictive
form of cocaine-and the growth of cocaine addiction” (Berger, 12). President
Reagan later called for a second “war on drugs” campaign. In October of
1986, President Reagan signed into law a 1.7 billion dollar antidrug bill,
called the “Drug-Free Workplace Order”. In addition to the bill, Reagan
instructed his cabinet officers to create a plan to begin drug testing for
federal civil employees (Berger, 14). Drug testing thus begun a sharp climb into
the area of private employers. In November of 1988 Congress passed an Act
requiring grant recipients or federal contractors to maintain drug-free
workplaces. Most of the employers set up voluntary testing programs and many
employees began to sue, claiming that individual testing is a violation of
privacy rights. The argument is that the employees are being deprived of their
Fourth Amendment protection. Many believe that government testing programs
should be unconstitutional unless the authorities have either reasonable
suspicion or probable cause that the individuals being tested are on drugs. To
justify the use of private employer testing, President Bush said in 1989 that
“Drug abuse among American workers costs businesses anywhere from $60 billion
to $100 billion dollars a year in lost productivity, absenteeism, drug-related
accidents, medical claims, and theft” (Horgan, 19). This claim was derived
from a source that interviewed families that were 28% lower in overall income
than the average household. This was used in an effort to promote Bushs”war on drugs” forum into the private sector (Horgan, 21). Many behaviors
of lower income people often differ statistically from upper-income people,
therefore the statement of Bush never establishes a clear or accurate statistic.

“In 1989 President George Bush unveiled his National Drug Control Strategy,
encouraging comprehensive drug-free workplace policies in the private sector and
in state and local government” (Stencel, 201). This created many controversies
within the American workplace and in National Treasury Employees Union v. Von
Raab decision, the Supreme Court upheld that drug testing was legal as long as
it outweighs privacy rights (James). Then, in 1991 Congress passed the Omnibus
Transportation and Employment Testing Act, which would extend drug testing in
the United States. Throughout the rest of the 90s drug tests were extended to
the outermost sectors of society causing drugs to become a significant issue
during election times, although politicians are never tested themselves. The
Fourth Amendment of the Constitution was created because of the rough treatment
of colonists by the British. The British restricted trade and travel and this
gave way to smuggling. “British soldiers frequently conducted unrestricted
house-to-house searches. People were forced to keep their private records and
other personal information on their person or hidden in their home or business
to avoid exposure and possible arrest” (Berger, 102). The Fourth Amendment was
part of the Constitutions Bill of Rights to protect ones privacy and
maintain search and seizure guarantees. The right to privacy was described by
Supreme Court Justice Louis D. Brandeis as “the right to be let alone-the most
comprehensive of rights and the right most valued by civilized men.” The
Fourth Amendment of the U.S. Constitution guarantees the “right of the people
to be secure in their person, houses, papers and effects against unreasonable
search and seizure” except upon probable cause. Random drug testing threatens
the Fourth Amendment and has been called suspicion by association. This is to
say that it is not possible to justify a search of one person because they are
similar to another. “Suppose a certain neighborhood has a high incidence of
violent crime. The police cannot defend a blanket search of all residents by
claiming that there were many armed individuals among them, they say” (Berger,
52). “Random drug testing assumes that every student is using drugs until they
prove to the contrary by submitting a urine sample,” (ACLU, 1) In general, the
government cannot search a person without reason to suspect that he or she is
guilty of wrongdoing. There is an exception, however, in limited circumstances,
where the search is in special need, the government has a compelling interest in
the search or the privacy interests affected by the test are minimal. In Random
Drug testing there are no Fourth Amendment rights to be maintained. “The right
to privacy is, as determined by the Supreme Court to be an implicit guarantee of
the Constitution” (Holtorf, 132). Drug tests reveal many areas of ones life
which may want to be hidden to their employer or to the outside world. “Drug
tests can reveal the use of contraceptives, pregnancy, or medication for
depression, epilepsy, diabetes, insomnia, schizophrenia, high blood pressure,
and heart trouble” (Holtorf, 132). The disclosure of this type of information
can be both embarrassing and harmful to ones social and professional career.

In some cases this has led to loss of employment for discriminated
individuals. Such in the case of Duane Adens, a former Sergeant of the Army.

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Adens was asked to give a body hair and he refused. He then took a urine test
and it came back negative. He was then asked to provide hair for a test and when
he did this the test came back positive for drugs. Aden was stunned and the army
denied his request for a DNA test of the hair to prove it was his. Sergeant
Adens received a bad conduct discharge in July 1998. “For a soldier to lose
his self-esteem, family and military respect is a bit too much based on the
strength of a body hair.”-Representative Charles Rangel, New York.(Kean, 3-4).

This man will suffer the rest of his life, a federal conviction, because of a
falsity in our Drug testing system. “In 1966 the U.S. Supreme Court ruled that
compulsory blood tests are bodily searches. The Fourth Amendment, it said ,
applied to such searches. A compulsory blood test could be conducted only if
there is “a clear indication that in fact evidence will be found” (Berger,
51). This is to say that someone can be given a test if there is a specific
reason to believe that this person is using drugs. In all court cases, the court
has ruled in favor of the plaintiff stating that the body and bodily fluids are
considered in the Fourth Amendment privacy clause. Yet in Drug Testing this is
not the case. In Allen v. City of Marietta, the Georgian court felt constrained
by current law to hold that a urinalysis is indeed a search. (Berger, 51).

Urinalysis is most definitely a search considering that a search of ones home
is considered invading privacy, what about ones urine? This is the most
personal and private information one can give out. Another clause in the Fourth
Amendment in the Constitution is that of Due Process. The Fourth Amendment
clearly states that no person shall be deprived of life, liberty or property
without due process of the law.” Pre-employment drug screening completely
defies this in that it gives a prospective employee no chance of challenging the
test. The job seeker is not considered for employment without even knowing that
it was because of a positive drug test. There have been many cases that a person
is eliminated from the job pool because of a positive outcome of a drug test and
the person is not a drug user. The prospective employee has no chance to explain
a positive test due to a prescription drug or certain foods. It is possible to
be a job-seeker and never obtain a job because of positive results on a drug
test due to a prescription drug, unless the prospective employer uses their time
to show the results. Drug testing without a prior suspicion or probable cause
can also lead to the absence of Equal protection under the law, the Fourteenth
Amendment (Holtorf, 135). “The Fourteenth Amendment was cited as protection
against selection of a group of athletes for testing by the National Collegiate
Athletic Association without demonstrating a likelihood that drug use was
prevalent in that population” (Holtorf, 136). Drug tests today are
considerably weak. Mistakes and errors swarm the vast business of drug testing.

“Clinical laboratories are not experienced with the special requirements for
specimen collection, analysis, storage, documentation, transport, and
handling” (McBay, 33B). Often times, simple mistakes such as mislabeling or
reporting errors are the reason for a positive turnout on a drug test.

“Because drug testing has become a very competitive industry, laboratories are
implementing cost cutting measures and attempting to test increasing numbers of
specimens quicker and cheaper, which is causing testing accuracy to worsen even
further” (McBay, 33B). Often times, a positive result has to be protested in
order to have the test sent to a more elaborate, expensive laboratory. An
example of this was with a Heavyweight boxing match in which the boxer, Tim
Witherspoon was knocked out in the first round by James Smith and a week after
the fight Witherspoon was tested positive for Marijuana use. Witherspoon
protested this and it was later found that there was an error in identifying the
specimen. “Dr. Don H. Catlin, chief of clinical pharmacology at the University
of California at Los Angeles, says that drug-testing firms “vary tremendously
in quality from laboratory to laboratory as well as within the same laboratory
on a day-to-day basis””(Berger, 42). The reason is because the person
reviewing the tests needs to be both competent and knowledgeable in this field
considering that this is someones future at stake. “The bulk of the errors
could be attributed to inadequate personnel, poor management, broken chain of
custody, faulty maintenance, and faulty admissions of reports and records,
rather than the tests themselves” (Holtorf, 63). Lack of education and
experience often play a part in the accuracy ratings of the different
institutions. “In the Spring of 1985, experts at the Centers for Disease
Control in Atlanta found a high rate of inaccuracy among the nations
drug-testing laboratories. A study of 13 laboratories serving 262 drug-treatment
centers in the United States revealed that all had performed unsatisfactorily
and had failed to identify correctly even half of the samples for four out of
five drugs tested.” (Berger, 43). “Only 85 of the estimated 1,200
laboratories in the United States meet federal standards for accuracy, qualified
lab personnel, and proper documentation and record keeping” (Holtorf, 60).

Society is often misled on the accuracy of the laboratories and many of the
offices are performing much below the level in which they are portrayed. True
results would be damaging to a laboratorys reputation and to their business (Holtorf,
61). One of the newest drug testing techniques being used is Hair testing. This
form of drug testing is considered less invasive and harder to pass. Hair
testing can obtain information on drugs that were done as long as three months
prior to the day of testing. The question of discrimination, accuracy and
purpose of the testing raise the most questions. Contamination of the hair is
also a factor in the decline of accuracy of this test. The hair of
African-Americans binds drugs into the roots of the hair ten to fifty times more
than that of a Caucasian (Holtorf, 104). This is extremely discriminatory
because of the greater risk an African-American will have in taking a Hair test.

“Some tests have shown that coarse hair shows much higher concentrations of
drugs than lighter hair after ingestion at the same amount of drugs” (Stencel,
199). There have been numerous studies conducted that show that when two
individuals ingest the same amount of drugs, the darker complected, darker
haired one will show greater concentration of the drug. In two different cases
two African-American women were tested positive to Drug use through hair testing
and now are pending investigations. “Last August, Althea Jones and Adrian
McClure, along with six other Chicago African-Americans who say they received
erroneous hair test results when applying for the Police Academy, filed
complaints of racial discrimination with the Equal Employment Opportunity
Commission. The group is considering suing both the city of Chicago and
Psychemedics” (Kean, 1) Many scientists have confirmed that there is no true
distinction between the drug being smoked or being in the same area or room for
a great duration of time in the result of the hair test. Also, because of the
low level of tolerance in the testing even a second hand experience to a drug
such as Marijuana can cause a positive result in a drug test. Dyeing of hair
also has different effects for types of hair. Using bleach, perming or excessive
UV exposure can decrease the chance of testing positive in a Hair test. “For
these reasons, the ACLU strongly opposes hair testing. “Every reputable
scientific organization in America rejects the use of hair testing for
employment purposes,” (Stencel, 199). “The Food and Drug Administration, the
Department of Transportation, the National Institute of Drug Abuse, and the
Society of Forensic Toxicologists all raise serious questions about the accuracy
of hair testing. “The consensus of scientific opinion is that there are still
too many unanswered questions for it to be used in employment situations,”
said Edward Cone, the National Institute of Drug Abuses leading researcher on
the test, in June 1998. In a recent interview, Cone said that hair testing “is
not ready for use yet, where peoples lives are at stake” (Kean, 2). Our
Politicians in the United States are not tested for Drugs. This is quite
alarming that the idols that we vote into office and make out laws are somehow
above the law when in comes to Drug testing. “In late September, the White
House refused requests from congressional investigators seeking information
about the jobs held by those in the special drug testing program. “Your
request amounts to asking us to be complicitous in a methodical, broad scale
invasion of privacy,” White House Counsel Jack Quinn wrote in a letter to
House Civil Service Subcommittee Chairman John Mica.” (York, 7). Even the man
who the leader of our great nation. The one man who holds the greatest power and
receives the most respect in the world has fallen into drugs. “There is
evidence that Bill Clinton himself attended some of Lasaters parties.

“Id never seen the governor around coke unless he was around Lasater.”
Brown told Tyrell that he saw Clinton “stoned” but never actually witnessed
the governor ingesting drugs” (York, 7). “While Congress pushed for more
small businesses to do drug testing, it refused to submit to drug testing, it
refused to submit to drug testing for congressmen and their staffs, claiming it
was too undignified and possibly unconstitutional” (Stencel, 205). It isnt
fair for a Congress that enacts laws to require the people to undergo drug tests
not submit themselves to the same level of testing. Drug testing in our country
does have its benefits. Yet there are so many disadvantages and holes in Drug
testing that it costs our country billions of dollars every year. Employment
Drug testing is a proven failure, the only gain is the gain of public funds and
reputations that politicians have gained through their active role in Drug
testing. Drug testing is not decreasing drug abuse, it is being used to
discriminate thousands and ruin lives of millions of others. The Fourth
Amendment is a cornerstone of our counties Democracy, Drug testing needs to be
removed from our everyday lives to ensure that we maintain this Democracy and
continue to live our lives the “American way” as the framers of the
Constitution intended.

American Civil Liberties Union. New Jersey judge blocks drug testing of
student athletes. New Jersey, 1997. Berger, Gilda. Drug Testing. New York:
Impact book, 1987. Holtorf, Kent. Ur-ine Trouble. Scottsdale: Stephanie
Cartozian, 1998. Horgan, J. Test Negative–A look at the “evidence”
justyifying illicit-drug tests. Scientific American, March 1990; 262(3):18-22.

James, Jeannette C. “The constitutionality of federal employee drug
testing.” The Amerifcan University Law Review, Fall 1998. Kean, Leslie.

“More than a hair off.” The Progressive. 63 no.5, 32-34. May 1999. McBay, AJ.

Drug-analysis technology-pitfalls and problems of drug testing. Clin Chem.

1987;33:33B-40B. Stencel, Sandra L. Issues for Debate in American Public Policy.

Washington D.C.: Congressional Quarterly, 1998. York, Byron. “Fast times at
white house high” The American Spectator. V29, pp.20-26. 1996.