Robert E. Gladd,
Thesis work-in-progress internet edition:

UNLV Institute for Ethics & Policy Studies

The case against indiscriminate drug testing,
post-Chandler v. Miller et al developments, or

What part of “No” don’t you understand?

Item: Some legislators simply refuse to listen with respect to the Chandler limitation on government-initiated drug testing. Then-Republican House member Susan Molinari of New York (who recently resigned to become a CBS-TV news entertainer), flanked by fellow GOP Representatives Tom DeLay and Newt Gingrich, appeared at a news conference less than two weeks after the April 15th Chandler decision to announce her introduction of a legislative proposal to require drug tests of all U.S. newborns (in excess of 4 million annually), with positive lab results forwarded to child abuse agencies. Such, coming from an otherwise get-government-off-our-backs “conservative,” exemplifies the confused policy climate of our war on drugs and the proper role of the indiscriminate drug test. Critics might observe that, as a practical matter, opting to wait until the in utero “damage” is extant seems a bit odd: were Molinari truly serious she would be perhaps offering legislation mandating that all women be monitored via drug testing throughout their pregnancies. Secondly, it is beyond dispute that illicit drug use is not randomly dispersed throughout obstetrical strata (or any socioeconomic strata). In Chandler, the Supreme Court for once recognized an epidemiological commonplace; indiscriminate screening makes no scientific sense (for the host of reasons we will explore in these pages). In the wake of Chandler, Ms. Molinari’s proposal would appear to be constitutionally, well—stillborn: one more episode of ill-considered, photo-op political “Jars Wars” grandstanding, going nowhere.

Item: June 1997update: Clueless in Carson City

   The Nevada Legislature recently considered Senate Bill 371, which would explicitly authorize all employers in the Silver State to enact suspicionless drug testing programs (as if they needed legislative authorization; Nevada already leads the nation in employee surveillance, and drug testing has long been virtually universal in major employment sectors here). The bill provides for, among other things, termination of any employee refusing to submit to testing, and once again reaffirms that the drug test has controlling force in hiring decisions (Section 11.1), Title VII notwithstanding.

   SB 371 mandates that employers who test must inform employees that illegal drugs are —well—illegal (Section 9.2), that employees testing positive must agree to be remanded to “treatment” or be fired (Section 22.1), and that employers with drug testing programs be accorded a 5% reduction in employee health benefit expenses. This latter provision (Section 26.2) sounds suspiciously like a “Nevada Clinical Laboratories Relief Act of 1997,” wherein revenues are re-routed from insurors to laboratories courtesy of the legislature.

   SB 371 contains nothing regarding epidemiological or economic criteria justifying enactment of drug testing programs (read it: click on the link above); it cannot be other than one more piece of “Jars Wars” lawmaking, symbolic in intent, in direct contravention of the recent Chandler Supreme Court decision cited above.

   Who might be behind such sorts of legislative machinations? Click here.

Item: Drug testing initiatives have resurfaced in school systems around the nation, mostly notably in Dade County, Florida in the fall of 1997. Unlike the program imposed in Oregon, which precipitated the Supreme Court case Vernonia School District 47J v. Acton et ux (Docket 94-590, 1995), the Florida random testing includes all students, not just student athletes.

Item: Drug testing critics lost another court battle recently when the U.S. Supreme Court, without comment, declined to hear the appeal of a California decision upholding the right of the City of Glendale to require drug testing of job applicants and employees up for promotion. Inexplicable, in light of Chandler.

Item: In October of 1997, the Executive Director of the Illinois Crime Commission decided it was time to take illicit drug use matters into his own hands:

Group Wants to Drug-Test Illinois Politicians


Politicians in Illinois will be asked to voluntarily take random drug tests by a group that says it wants to “keep everyone honest,” the Chicago-Sun Times reported Oct. 7. The challenge comes from the Illinois State Crime Commission.

“It’s either put up or shut up,” said Executive Director Jerry Elsner. “We have lost the war on drugs. Now let’s see who’s using the drugs and who’s not.” The challenge will appear in an editorial in the first issue of the Commission Reports, the anti-crime organization’s newspaper. Political figures who agree to submit to such tests will have their names published in the newspaper. Those who refuse to take a drug test will also have their names in print. “The agreement is that we can show up at anytime, any place,” Elsner noted. “It could be after one of your fund-raisers or while you’re coming out of church.”

Elsner added that state senators and representatives, as well as those running for higher offices, will be receiving a formal request by mail in the next few weeks. One lawmaker already commenting on the upcoming challenge is Rep. Barbara Flynn Currie (D-Chicago), who says although she personally does not support random drug-testing, she will agree to it if her constituents say yes. “But I don’t think random tests are a good way to fight drug abuse. I don’t think the findings in this population, like others, would be dramatic or interesting,” said Currie.

Source: Join Together Online

   Critics might observe that Mr. Elsner’s plan is neo-McCarthyism to the core. It is, however, quite in keeping with the blatantly unconstitutional “prove-your-innocence” attitude and legislative proposals of U.S. Congressman Gerald Solomon, who has tried to have refusal to submit to arbitrary drug testing made a violation of federal law, for which one would be summarily declared as having tested positive.

Louisiana Task Force Proposes Sweeping Drug Tests


   In Louisiana, the governor’s drug-testing task force has recommended that $5 million dollars be set aside each year to test welfare recipients, elected officials and state college students for illicit substances. The task force was appointed after legislators approved a drug-testing law several months ago, Reuters reported Nov. 4.

   In response to the recommendations, a spokesman for the Louisiana State University Board of Supervisors said, “It seems that would be patently unconstitutional, at the very least.”

   A spokesman for Republican Gov. Mike Foster said it would take about a week for the governor and his staff to analyze all the recommendations.

Source: Join Together Online

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