Drug testing: legal, moral issues on a collision course

A WHOLE range of issues swirls around employee drug-testing. Among them are legal, moral, and practical questions. Here are the considerations:

Legal. The courts seem to have reached a consensus that such probes fall into the category of searches and seizures. What they are divided over is what kinds of drug testing should be considered constitutional under Fourth Amendment proscriptions against unreasonable searches.

The United States Supreme Court will soon consider a trio of cases to try to reach some judicial consensus in this area.

Two of these matters are scheduled for hearing in early November - one involving railroad workers and the other the US Customs Service. In the former, the justices will have to decide whether the constitutional privacy rights of individuals are violated by federal regulations requiring blood and urine tests for those involved in serious railroad accidents. A lower appellate court struck down this search as unreasonable.

A similar issue arises in reference to mandated Customs Service tests for those seeking drug enforcement jobs. Here the lower court ruled the testing to be reasonable, citing that intrusiveness of the search was minimal and limited in scope.

The third case, just added to the docket, also involves railroad workers. Here the court will review a ruling that barred the Consolidated Rail Corporation (Conrail) from imposing drug tests without permitting collective bargaining over the issue.

The Conrail dispute, however, seems to center more on jurisdiction than on personal privacy. The US Court of Appeals for the Third Circuit has already ruled that the Railroad Labor Act, which governs the railroad and airline industries, requires collective bargaining in this situation.

Moral. In upholding drug testing in the Customs Service case, the US Court of Appeals for the Fifth Circuit proclaimed that drugs are an evil in society that government has a legitimate interest in protecting against.

It is safe to say that there is consensus in society for this point of view. It has led to the recent tough stance by Olympic officials toward athletes found using steroids. And it is reflected in President Reagan's proposals for broad-based testing of federal workers and pending congressional legislation for a crackdown on drug dealers.

Some suggest that random drug testing should be imposed on prisoners and schoolchildren alike - and that criminal sanctions should be imposed on those found to be users.

Yet, there is no evidence that this type of probe of a person's blood and body fluids is a major deterrent to substance use and abuse.

The important test is the one provided by society - moral leadership provided by the home, the community, the school, and the church. It is a test of spiritual strength to resist that which is destructive to the dominion of the individual. The war on drugs can best be won at this level.

Practical. Drug testing may well be practical for railroad workers, Customs employees, pilots, school bus drivers, and others whose impairment by chemicals could lead to serious accidents and public risks. But even in these situations, random testing is constitutionally questionable unless attended by strict guidelines that take into account individual dignity and privacy.

The burden must always be on government or private employers to justify why such intrusion is necessary. The tests themselves must be technically competent and professionally administered. Results must not be used to punish but as a guide toward rehabilitation.

Gerald Uelmen, dean of the Santa Clara University School of Law, recently commented in a Los Angeles Times op-ed column that court rulings do not get to the issue of whether drug testing is worth the cost.

Dean Uelmen says that the estimated $8 billion to $10 billion annual price tag that would be attached to testing of every employee in the US far exceeds what is currently spent on all drug-treatment programs combined. He also points out that drug testing is fast becoming a multibillion-dollar industry. Uelmen adds that ``many employers who are jumping on the drug-testing bandwagon are chiefly concerned with corporate images rather than wayward employees.''

Profit and profile are not reason enough for engaging in this highly controversial practice.

A Thursday column