Skinner v. Railway Labor Executives' Assn.

Although done without a warrant, probable cause, or individualized suspicion, mandatory drug testing of railroad employees was held not to violate the Fourth Amendment prohibition against unreasonable searches because of the "special need" to ensure the public's safety.

In 1985 the Federal Railroad Administration (FRA) adopted regulations addressing the problem of alcohol and drug use among railroad employees. This was the direct result of at least 21 significant train accidents involving alcohol or drug use between 1972 and 1983. These accidents resulted in 25 deaths. Subpart C of the regulations, called "Post-Accident Toxicological Testing," is mandatory. It states that all railroad employees directly involved in an accident must provide blood and urine samples for testing. These samples must be obtained at an independent medical facility and then shipped to the FRA laboratory for analysis. The FRA relies primarily on the blood sample analyses because they note the presence of alcohol and drugs and their current impairment effects. Urine samples are also necessary because traces of drugs remain longer in the urine than in the blood and a delay in taking the samples could mean the drugs could be eliminated from the blood stream. The urine tests are important because a positive test could help determine the cause of an accident. The regulations require the FRA to notify employees of the test results and to allow them an opportunity to respond in writing before the final report on the accident is prepared.

Subpart D, called "Authorization to Test for Cause," authorized railroads to require employees to take breath or urine tests after an accident where a supervisor had a "reasonable suspicion" that an employee's acts contributed to an accident. The tests could also be required after certain rule violations or if supervisors suspect an employee is under the influence of drugs or alcohol.

The Railway Labor Executives' Association filed a lawsuit in the U.S. District Court for the Northern District of California to forbid these regulations. The judge granted summary judgment in the petitioner's favor and against the railway association. The judge stated that the railroad employees "have a valid interest in the integrity of their own bodies." This interest deserved protection under the Fourth Amendment, which prohibits unreasonable searches and seizures. The court held, however, that this interest was outweighed by the competing interest of railway safety.

A divided panel of the Court of Appeals for the Ninth Circuit reversed the district court's decision. The court of appeals ruled that particularized suspicion is essential for the searches (the blood, urine, and breath testing) to be reasonable. The court invalidated the parts of the regulations that did not require "reasonable suspicion." The court of appeals also noted that "blood and urine tests intended to establish drug use other than alcohol . . . cannot measure current drug intoxication or degree of impairment."

The Supreme Court agreed to hear the case to decide if the invalidated regulations violated the Fourth Amendment. The Court noted that the collection and testing of biological samples required by the regulations are searches, subject to the Fourth Amendment. This amendment requires that searches be reasonable. This is determined by balancing the intrusion on the individual's Fourth Amendment interests against the promotion of legitimate governmental interests. Usually a search is not reasonable unless a warrant is obtained, based on probable cause. However, the Court has recognized "special needs" beyond the normal need for law enforcement, which make a warrant impractical. The government's interest in ensuring railway safety is a "special need." These regulations were not formulated to help prosecute employees for drug use, but rather to prevent accidents.

The main purpose for requiring a warrant is to protect people's privacy by making sure that intrusions are not random acts of government agents. A warrant is issued by a detached, neutral magistrate to ensure an objective decision regarding the validity of a search. Since in the present case "there are virtually no facts for a neutral magistrate to evaluate," a warrant is not required. This is especially so because taking the time to obtain a warrant might result in the destruction of valuable evidence, since alcohol and drugs are eliminated from the bloodstream at constant rate.

Usually searches, with or without a warrant, must be based on probable cause, which means a reasonable belief that a person has committed a crime. In this case however, Justice Kennedy noted, "In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion."

Relying on Schmerber v. California, Kennedy noted that the intrusion occasioned by a blood test is not significant. Breath tests are even less intrusive. Kennedy noted that although urination is traditionally shielded by great privacy, the regulations try to reduce the intrusiveness of the collection process since the samples do not have to be furnished under direct observation and are collected in a medical environment. He stated that the expectations of privacy of these employees, in a highly safety-regulated industry, are diminished. Therefore, the testing procedures in Subparts C and D "pose only limited threats to the justifiable expectations of privacy . . . "

The government has a strong interest in testing without having to demonstrate individualized suspicion. These employees can cause a great loss of life before any signs of impairment are noticeable. The regulations would help deter alcohol and drug use on the job since employees know that through testing they would be discovered. The testing procedures would also help obtain information about the causes of accidents. Negative test results would eliminate drug use as a cause of an accident and would help establish the actual cause. If particularized suspicion were required before testing, the railroads would be impeded in gathering important information about accidents. Since the scene of train accidents is chaotic, obtaining evidence that a particular employee might be impaired is impractical. Attempting to pinpoint particular employees for testing would result in the loss of evidence. "It would be unrealistic, and inimical to the Government's goal of ensuring safety in rail transportation, to require a showing of individualized suspicion in these circumstances."

Urine testing, if it showed recent use of a controlled substance, would provide information for further investigative work. However, principal reliance is placed on blood tests, which can identify very recent drug use. The urine tests are a secondary source of information. Taken together they form a highly effective means of determining on the job impairment and they serve to deter drug use by railroad employees.

Kennedy summed up by stating that compelling government interests would be hindered if railroads were required to show a reasonable suspicion of impairment before testing anyone. Since the testing is not an undue infringement on the justifiable expectations of privacy of these employees, the government's interests outweigh privacy concerns. "It is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired . . . The tests are reasonable within the meaning of the Fourth Amendment." Thus the majority of the Supreme Court reversed the decision of the court of appeals, which had invalidated the testing regulations.

Justice Stevens, concurring in part and concurring in judgment, noted that it is doubtful that the regulations deter alcohol and drug use on the job. " . . . If the risk of serious personal injury does not deter their use of these substances, it seems highly unlikely that the additional threat of loss of employment would have any effect on their behavior."

Highly Intrusive Searches Should Be Based On Probable Cause

Justices Marshall and Brennan dissented. Marshall called the government's compulsory collection and testing of blood and urine "a particularly Draconian weapon" in the war on drugs. "Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great." Marshall noted that times of urgency are times of grave threats to liberty, such as during World War II when Japanese Americans were place in relocation camps and during the 1950s when Senator Joseph McCarthy led an effort to identify and ostracize Communist sympathizers. Marshall observed that when fundamental freedoms are sacrificed in the name of a threat, we later regret it.

Marshall contended that in allowing drug testing without evidence of wrongdoing, "the majority today joins those shortsighted courts which have allowed basic constitutional rights to fall prey to momentary emergencies." Highly intrusive searches should be based on probable cause, not on the "evanescent cost-benefit calculations of agencies or judges." The majority trivialized the intrusiveness of the testing and overlooked flaws in the testing program. " . . . Dragnet blood and urine testing ensures that the first, and worst, casualty of the war on drugs will be the precious liberties of our citizens."

Marshall criticized the concept of a "special need" making probable cause impracticable and felt that the Court in its decision took "its longest step yet toward reading the probable-cause requirement out of the Fourth Amendment." The amendment should not be subject to shifting judicial majorities who are worried about the problems of the day. The requirements of the Constitution are not "fair-weather friends, present when advantageous, conveniently absent when `special needs' make them seem not." The Court recognized "special needs" exceptions to the probable clause rule since 1985 and since that time has badly distorted the clarity of Fourth Amendment doctrine, according to Marshall. But until the decision in Skinner v. Railway Labor Executives' Assn., individualized suspicion was still a requirement. The majority in this case has completed "the process . . . of eliminating altogether the probable-cause requirement for civil searches." In its place is a manipulable balancing inquiry. This balancing approach can be justified only on the basis of policy results; the special needs rationale is dangerous.

In Marshall's opinion, although the urgency of needing to collect samples before the drug or alcohol disappeared from the body justified waiving the warrant requirement for collecting the evidence, there was no reason for railroad officials to not get a warrant before testing the samples.

Marshall found the majority's characterization of the privacy interests in this case as minimal, "nothing short of startling." The framers of our Constitution "would be appalled by the vision of mass governmental intrusions upon the integrity of the human body . . . The immediate victims of the majority's constitutional timorousness will be those railroad workers whose bodily fluids the government may now forcibly collect and analyze. But ultimately, today's decision will reduce the privacy all citizens may enjoy . . . "

Impact

Since Skinner v. Railway Labor Executives' Assn., the Supreme Court has refused to hear other challenges to random drug testing. Many aspects of this issue have yet to be resolved including the degree of allowable intrusiveness, the validity of other government drug testing programs less related to safety, and the relative privacy expectations of employees.

Related Cases

• Schmerber v. California, 384 U.S. 757 (1966).
• United States v. Jacobsen, 466 U.S. 109 (1984).
• New Jersey v. T.L.O., 469 U.S. 325 (1985).
• United States v. Montoya de Hernandez, 473 U.S. 531 (1985).