National Treasury Employees Union v. Von Raab

The Supreme Court found the requirement to submit a urine sample as a condition to performing Customs Service duties appropriate. The procedure targeted new applicants and three categories of Customs Service employees--those who dealt with interception of illegal drugs, carried firearms, and operated with sensitive information. The Court disagreed with the petitioners who cited the Constitution's Fourth Amendment as protection against employee drug testing. Governmental interest superseded the "sanctity of privacy" because of a growing social problem of drug abuse made necessary the institution of drug-free programs to preserve reliability and efficient performance of duties by mentally and physically fit officers.

The mission of the U.S. Customs Service is to control, observe, and make sure that illicit effects do not enter the country. One primar duty, interdiction of drug traffic and seizure of contraband, brings employees into direct, daily contact with drug-related criminal operations. Sometimes their duties carry the high risk of using firearms. In December of 1985, Commissioner of Customs William Von Raab prepared a drug screening program for personnel whom he recognized as employees with sensitive tasks. Drug tests were demanded for employees who were directly exposed to activities where there was a potential for corruption, for employees that might have to use firearms, and for high level positions with access to classified information. Although he expressed that drug abuse among Customs Service employees most likely was not widespread, he also acknowledged that "no segment of society is immune from threat of illegal drug use."

In May of 1986, implementation of drug testing started at the U.S. Customs Service. Urinalysis was required for new applicants for certain positions and for some employees already in the service. The program for urinalysis was established with all precautions to ensure accuracy of testing. All applicants for Custom Service positions were notified about the drug screening as a condition of employment. Current employees could choose when and where to submit urine for analysis. On reporting for the test, employees were indirectly observed by monitors of the same sex to avoid possibilities of adulteration of the specimen or substitution of a sample from another person. Laboratory analysis of urine was used to determine presence of marijuana, cocaine, opiates, amphetamines, and phencyclidine. Verified positive results were delivered to a Medical Review Officer, and agency employees who tested positive were not permitted to continue their duties. All results of testing remained within the agency and could not be given to other agencies or law enforcement officials.

Believing that their rights under the Fourth Amendment were violated, the National Treasury Employees Union (on behalf of their Customs Service membership) filed suit objecting to the drug screening program. The U.S. District Court for the Eastern District of Louisiana accepted their arguments; ruling in favor of the petitioners, the court reasoned that "the drug testing plan constitutes an overly intrusive policy of searches and seizures without probable cause or reasonable suspicion, in violation of legitimate expectations of privacy." On appeal, the U.S. Court of Appeals disagreed and found that although requirements for urinalysis could be viewed as an intrusion into Fourth Amendment privacy rights, the government's interests outweighed the petitioners' expectation and right to privacy. The appellate court thus vacated the lower court's ruling citing as their rationale that "drug use by covered employees casts substantial doubt on their ability to discharge their duties honestly and vigorously." Moreover, the appellate court felt the scope of the Customs Service drug detection program was of limited intrusiveness (there was no visual observation of the act of urination).

When on appeal to the U.S. Supreme Court, petitioners argued that constitutionally-guaranteed Fourth Amendment rights meant that the government's interest should not be considered a justified intrusion on their reasonable expectation of privacy. Counsel for the National Treasury Employees Union did not minimize the significance of governmental efforts to establish measures to prevent irrational use of firearms or compromise of important and classified information. However, their main argument contended that no significant indicators showed an existence of a drug abuse problem among employees; therefore, chemical testing was not justified. (The respondent's brief indicated that results of the drug screening program proved only 5 of 3,600 employees tested positive.) Furthermore, the petitioner's attorney contended that the testing mechanism was not properly constructed, because drug abusers could simply abstain from drug use for a period of time to avoid detection or could switch their urine specimen with a "clean" sample from a friend.

Attorneys for the respondent countered by arguing that there existed a great social problem of drug abuse in the country. Quoting Commissioner Von Raab from a memorandum, counsel reasoned that "Implementation of the drug screening program would set an important example in our country's struggle with the most serious threat to our national health and security." Moreover, there was an absolute incongruity between regular performance of duty and enjoying drugs, especially when Customs Service employees could be tempted by smugglers, blackmailed, or exposed to dangerous situations where physical conditions must be perfectly controlled. Considering that the service's mission was a "first line of defense," requirements for chemical testing were justified. Soon after the U.S. Court of Appeals ruling, the U.S. Department of Health and Human Services instituted procedures for drug screening programs for federal employees which equally applied to the U.S. Customs Service.

The U.S. Supreme Court affirmed almost all opinions of the Appellate Court. The majority opinion held it was admissible to require federal employees to submit urine samples for drug testing, specifically incumbents who were directly involved in drug interdiction and those who carried firearms. The Court based its decision on the precedent set in Skinner v. Railway Labor Executives' Assn. (1989). In that case, the Court specified that the government's purpose must be reasonable and that the intrusion must justifiably outweigh an individual's privacy rights under the Fourth Amendment. The Court determined that in the matter of drug testing of Customs Service employees, individual privacy was overshadowed by the respondent's purpose; namely, the governmental interest could be justified as being beyond the "normal need of law enforcement." The Customs Service had a "substantial interest" in ensuring that drug abusers were not operating in demanding positions where mental unreliability could endanger effective duty performance. Justices for the majority did not find merit in the petitioner's contention that the "probable cause standard" should prevent testing. Instead the majority opined that Fourth Amendment privacy rights could be abridged "where the Government seeks to prevent development of hazardous conditions." Further, the Court emphasized that duties of Customs Service agents were often hazardous and risky and that officers were often a target for blackmail or bribery. Thus, the service's interest in drug screening reflected a well-founded need to ensure physical fitness and reliability of their personnel.

The justices pointed out that there existed a national and public interest to ensure enforcement of measures that could bar individuals with impaired perception that might negatively affect their conduct and imperil their own safety, the safety of other employees, and the public at large. The U.S. Supreme Court found that public employees must be aware of certain circumstances when privacy expectations were diminished by the government's interest when the safety and integrity of borders were concerned. Moreover, although few employees were detected as drug positive, the Court did not consider this reason to stop chemical testing. They stressed that the preventative measure of imposing testing requirements helped preclude dealing with employees who were addicts. The possible harm of such individuals actively operating as agents justified the testing program despite infrequent cases of drug abuse among Customs employees. Further, the justices thus found as "meaningless" the petitioners' questioning of the accuracy and reliability of techniques and precautions taken to preclude manipulation with urine samples. First, there was no real basis to reason that drug testing protocol was ineffective, and, second, the "fade-away effect" of drugs would likely incriminate a drug user even if that person refrained from taking drugs for a period of time.

The U.S. Supreme Court remanded the case, so that the Court of Appeals could make a more specific determination as to which categories of employees were "required to handle classified material" and should be subject to drug testing. In previous cases, the Court recognized that there existed circumstances when, in order to protect "truly sensitive information," government had a compelling interest to establish restrictions to defend its "vital interest." But, the U.S. Supreme Court did not find evidence that categories of employees who deal with "sensitive information" were precisely identified and thus testing was administered to a broad number of employees without clearly defining what constituted an employee assigned to a "high level position." The Court directed the court of appeals to "examine the criteria used by the service in determining what materials are classified and decide whom to test under this rubric."

Although the majority presented compelling rationale for its decision, the decision was far from unanimous. Dissenting opinion was supported by four justices who believed that searches without "probable cause" were "unprincipled and unjustifiable." Minority opinion felt the intrusiveness of the Custom Service's drug testing plan was "offensive to personal dignity." Although the majority based its decision, in part, on Skinner v. Railway Labor Executives' Assn. (1989), dissenting justices felt there was no similarity between the two cases. (The Court previously held substance abuse testing valid in Skinner due to substantive evidence of "grave harm" caused by alcohol use among railroad employees.) There was neither evidence pointing to a history of employees engaging in drug abuse nor was there documentation of actual damage resulting from drug abuse by Customs agents. They believed that arguments by the respondent were conjectural and not based on "plausible speculations," because results of testing showed that there were no reasonable expectations of drug abuse among service's employees. The dissenting justices reasoned that the majority opinion rested only on the symbolic value of their holding and expressed concern that accepting Fourth Amendment limitations supported by the majority opinion could inappropriately encourage "similar testing of private citizens who use dangerous instruments such as guns or cars or have access to classified information."