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Drugs and the Constitution

September 21, 1986

A federal judge in New Jersey ruled last week that mandatory drug testing of government employees in the absence of individualized suspicion violated their constitutional rights. This important and welcome decision underscores the Fourth Amendment's prohibition against unreasonable searches and seizures. As the country moves pell-mell toward universal urine testing for drugs, it is crucial to remember that our society still believes in privacy, individual rights and the doctrine that all people are assumed to be innocent.

The facts of the New Jersey case are these: Earlier this year the city of Plainfield required 225 policemen and firemen (including some civilian employees) to take surprise urine tests for drugs. Twenty people failed. They were given the choice of resigning or facing departmental charges. Seventeen sued. On Thursday, District Judge H. Lee Sarokin in Newark ruled in their favor. His eloquent opinion explains it best:

"The threat posed by widespread use of drugs is real, the need to combat it manifest. But it is important not to permit fear and panic to overcome our fundamental principles and protections. The public interest in eliminating drugs in the workplace is substantial, but to invade the privacy of the innocent in order to discover the guilty establishes a dangerous precedent, one which our Constitution mandates be rejected."

Further, he said, "If we choose to violate the rights of the innocent in order to act against the guilty, then we will have transformed our country into a police state and abandoned one of the fundamental tenets of our free society. In order to win the war against drugs, we must not sacrifice the life of the Constitution in the battle."

Sarokin's opinion does not address private employers or pre-employment testing, but it does appear to strike a serious blow at President Reagan's plan for widespread random drug testing throughout the federal Civil Service. And well it should. If there is reason to suspect someone of a crime, a search may be conducted. But invading everyone's privacy without cause is obviously an unreasonable search.

At week's end the Justice Department filed a brief supporting the city of Boston, which is being sued by police officers in a drug-testing case similar to New Jersey's. Justice Department lawyers say that there is no Fourth Amendment issue here. Sarokin's reasoning should prevail in Boston and in the rest of the country. Constitutional protections must be defended against attacks, no matter how good their motivation.

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