Originally formatted for at 800 x 600 16-bit color
UNLV Institute for Ethics & Policy Studies
Toward Effective and Ethical
Drug Abuse Prevention Policies:
The Case Against Indiscriminate Drug Testing
ABSTRACT: For an increasing breadth of organizational domains, a negative illicit drug screen result has become the final and paramount criterion for admission and/or continuing participation. Such a policy is vigorously promoted to the private sector by government and vendors of testing services as an inexpensive and vital tool for suppressing drug abuse. This policy, however, can be shown to be at once ineffective, wasteful, Constitutionally noxious, and ethically unsustainable. Reducing the harm attributable to illicit intoxication is a legitimate and worthy social goal. The ends, however, cannot justify such means of indiscriminate and intrusive surveillance.
One hopes not only for the courage of one’s convictions, but also for
the courage of one’s doubts in a world of dangerously passionate certainties.
Eric Sevareid, Not So Wild A Dream
Drug testing is conventionally viewed as an effective and necessary means of both deterring illicit drug use and identifying those in need of “treatment” for their “addictions.” Widely employed in competitive amateur and professional sports, mandatory drug testing programs are now policy in 80% of major U.S. corporations according to an American Management Association report published in mid 1996. Recent federal legislative proposals have sought to extend mandatory testing to all branches of the federal government and to all direct or indirect recipients of federal funds (e.g., welfare and public housing clients, students receiving government backed school loans, businesses with federal contracts, etc.). President Clinton last year proposed testing for all probationers, parolees, and teen drivers’ license applicants.
The U.S. Supreme Court, after handing down three rulings declaring suspicionless drug testing constitutional under a variety of arguably dubious circumstances, recently struck down a Georgia law requiring drug tests of state and local political candidates. See Chandler et al. v. Miller, Governor of Georgia et al, Docket 96-126. This 8-1 decision (Chief Justice Rehnquist dissenting) held that “symbolic” government-administered testing programs such as Georgia’s are unconstitutional. The Court rejected, among other assertions, the Marion-Barry-Made-Us-Do-It rationale cited by the Georgia counsel at Orals. (Note: Additional information on this latest case is available in the antecedent Chandler v. Miller, Fed. 11th Circuit, No. 95-8230, 1996 apellate ruling, the ACLU Chandler v. Georgia Amicus brief, and a personal statment by Walker Chandler himself, as appended to an ACLU press release.) Unhappily for those objecting to indiscriminate private sector drug screening, however, majority opinion author Justice Ginsberg also reiterated the Court’s position that private sector drug testing opponents have no constitutional standing—that, in her words, the private sector is “a domain unguarded by Fourth Amendment constraints.”
Updates in the wake of the Chandler case: click here.
The putative efficacy and propriety of drug testing rest on four basic premises:
My thesis is that such premises are by no means incontrovertible; that mass drug screening fails to meet basic empirical criteria of epidemiological validity, methodological sobriety, and economic utility, while doing violence to Constitutional and ethical principle. As suspicionless drug testing programs are marketed to ever-lower prevalence strata, they become little more than 50 milliliter Loyalty Oaths. Equitable competition, safe and prosperous work environments, and a healthy citizenry are indeed noble ends—ends worthy of means more ethical and effective than those constituting little more than Potemkin science in service of political symbolism and private laboratory profits. Let us now briefly examine the foregoing list of premises, assertion by assertion.
- Prevalence and risk: The aggregate epidemiological and socioeconomic data estimating the nature, extent, and cost of drug abuse are sound, justifying concerted preventive measures;
- Preventive utility: Commercial analytical technologies are sufficiently accurate and precise—even in the face of already huge and growing specimen workloads—to unfailingly reveal recent drug use while avoiding significant problems of “false positive” accusation;
- Legal theory and case law precedent: Jurisprudential foundation and practice validate the use of drug testing despite the Fourth Amendment requirement of “probable cause” connected with the search for contraband; and
- Ethical justification: The contentious notion of “privacy,” to the extent that it can be considered a constitutional “right” at all, is a relatively recent, derivative, and “weak” right, one that must defer to society’s right to fair competition, safe and productive workplaces, and a healthy, sober citizenry.
First, we can stipulate that recreational intoxication is no trivial matter, yet ample evidence exists that illicit drug use, as serious as it is on its own terms, is a relatively minor epidemiological concern when viewed in the context of the major categories of voluntary risk-taking behaviors we see fit to regulate through tort and criminal laws and commercial risk underwriting systems—despite equally “preventable” and far more costly contributions to health, safety, and economic losses by tobacco, alcohol, poor diet, lack of exercise, infections, toxic agents, firearms, unsafe sex, motor vehicles, and so forth. Moreover, much of the undeniable damage attributable to illegal drugs (e.g., toxicity, enforcement costs, crime) is a function of their very illegality. Yet, a selective neo-puritan hostility endures, immune to both ratiocination and real numbers, so decriminalization proposals continue to be dismissed out of hand—primarily in ad hominem fashion coincident with alarmist slippery-slope “logic”—by those committed to the “War On Drugs.” (e.g., witness the recent rhetorical savaging of philanthropist George Soros subsequent to his backing of California’s Proposition 215, the Medical Marijuana Initiative.)
Clarification: One reader vigorously assailed me for calling illicit drug use “a relatively minor epidemiological concern.” This respondent chose to focus only on that clause in the sentence. Re-read the entire statement; there are ethically appropriate methods available to a society for dealing with risk and loss. It is my contention, however, that indiscriminate drug testing is not among them. Even under a standard and strictly utilitarian risk/cost-benefit analysis, mass drug testing fails to measure up, as I shall show as this work progresses.When you add in the legal and ethical considerations—in addition to the empirical context—you cannot but find a compelling case against such measures.
Ron Kotulak, in his recent book Inside the Brain, makes the following observation: “Lifestyle risks account for half of the 2.2 million deaths that occur annually in the United States...[I]n an eye-opening 1993 article published in the Journal of the American Medical Association, the researchers described the deadly toll: tobacco, 400,000 annual deaths; bad diet and physical inactivity, 300,000 deaths; alcohol, 100,000; infections (mostly preventable) 90,000; toxic agents at home or in the workplace, 60,000; firearms, 35,000; unsafe sex, 30,000; motor vehicles, 25,000; and illicit use of drugs, 20,000.”(pg. 188)
In other words, the last item on the list constituted less than 2% of the aggregate lifestyle- associated mortality experience. I call that “a relatively minor epidemiological concern,” (the most recent alarmist assertions of Bill Bennett notwithstanding) particularly in light of the massive resources devoted to the suppression and remediation of the “illicit drug problem.” Drug War opponents insist that these resources are being significantly misapplied in Quixotic fashion, to the detriment of more rational preventive methods and more pressing social concerns. I have to agree.
Second, laboratory resources are finite; there are much more pressing uses for the equipment and skilled personnel required to perform high quality analytical chemistry. Furthermore, given the large disparity between official assertions of the prevalence of employee drug abusers and the percentage of confirmed positives reported in recent years, either the prevalence assertions are grossly exaggerated or the labs are testing at probable-cause concentration levels, thereby trading false negatives for false positives to avoid lawsuits from the falsely accused. If the latter is the case, we are egregiously wasting precious laboratory capacity in pursuit of drug war symbolism. Degraded quality of lab results may be a consequence for all others requiring reliable clinical tests. My own long and intense laboratory tenure indelibly persuaded me of what any honest lab manager will admit: analytical quality is a principal casualty of specimen overload. I shall examine in detail the relevant analytical methodology concerns.
With respect to the third assertion, the claim that the Fourth Amendment does not apply is specious on its face. I shall recount the history and political conditions leading to the framing and exact lexical construction of the Fourth Amendment—every word of which emerged from the forge of Colonial disdain for the Crown policy of forcibly deputizing merchants in the unrestricted pursuit of contraband. The claim that our government cannot enforce the right of privacy in civil commerce is an unpersuasive apology from an authority with the power to mandate the height of handrails in business facilities to the fraction of an inch, an authority that can prohibit the production of feedstock for private use on a family farm, an authority that otherwise dictates in numbing detail the parameters of fair employment practice. Indeed, on this last point, I shall argue that suspicionless employment drug testing violates Title VII of the Civil Rights Act of 1964 with respect to Fair Employment criteria: see Griggs v. Duke Power, 401 U.S. 424, 1971, which broadly addressed the issue of workplace justice. Griggs was not merely concerned with protection of “minorities” in the workplace; in validating Title VII the Court outlawed arbitrary, non job-skill related “tests” having controlling force in employment practice. And a mandatory drug screen has just that: controlling force, irrespective of its demonstrably feeble predictive utility (particularly with respect to negative test results; a coin toss may have a higher “NPV,” or Negative Predictive Value). Your perhaps otherwise extensive and stellar C.V. counts for nothing should you refuse a required employment drug screen.
Worse, there is recent sentiment in Congress to make it effectively illegal to decline, by permitting the administrative branding of those refusing to be tested as “drug positive.” Pay particular attention to sections 2704(a) and 2707(b) of House of Representatives 153 of the 104th Congress. This bill, ostensibly concerned with “quality assurance” in drug testing, has precious little to say regarding the specific technical elements of ensuring laboratory competence. It does, however, devote much language to the unrestricted expansion of coercive drug testing throughout sectors public and private. The sponsor of this and related drug testing legislative proposals is Representative Gerald Solomon (R-NY), a senior member of the House and an aggressive proponent of escalating the War On Drugs. On the opening day of the 104th Congress, Mr. Solomon went nuclear with a battle cry for blitzkrieg in remarks entitled Redeclare the Drug War, (Congressional Record, 1-4-95) in which his intent to subject all workers public and private to drug screening was utterly clear: “The best method...involves testing in the workplace. By requiring the testing of all Government employees and officials we can set the standard for the private sector.”
Consider a scenario: You apply for a job, and as you open the application form to begin filling it in, you encounter the following:
Ask any human resources manager whether he or she would dare include such queries on a job application. A pre-employment drug screen, however, constitutes the exact bioassay equivalent of such patently illegal questions. Ferreting out criminal miscreants is properly the function of law enforcement, not the H.R. Department. The political loyalty oath is a justly discredited relic of the McCarthy era. Having to “prove” one’s innocence through suspicionless drug screening is the moral and methodological equivalent of witch dunking.
- Have you ever committed a crime for which you were not apprehended?
- Do you now engage in ongoing or periodic criminal conduct?
- Do you support the war against drug abuse?
- Are you willing to submit proof of the foregoing?
Think about it.
To sum up point three: Clearly, ours is a government that in fact does undertake to compel observation of fundamental civil rights by those whom it commercially charters and regulates; it can and should enforce the right to privacy in such domains rather than wasting time and tax dollars composing Constitutionally noxious legislation requiring asymptomatic citizens to demonstrate their drug abstinence to avoid summary labeling as “drug abusers.”
Finally, on the necessity of “privacy”: Whether one believes that the Fourth Amendment phrase “...secure in their persons...” is synonymous with a proscriptive legal right to bodily and psychological privacy, I shall argue that the need for privacy is a fundamental aspect of personality, one seen and respected in one form or another throughout millennia and across cultures. The cardinal elements of virtuous moral character (e.g., courage, temperance, justness, industriousness, honesty) and the behaviors they guide are not mere functions of the prod of ongoing surveillance. Indeed, one can make the case that virtue is a matter of behaving morally even in the absence of observation or threat of apprehension. Those who framed our Bill of Rights were far more noble than a cynical conspiracy of tariff-averse fur traders and rum-runners motivated by nothing more than a desire to hog-tie authority. They knew that liberty—which we ostensibly revere as a founding principle—requires respect for individual moral agency: respect for the private absent probable cause justifying its breach.
It is ironic that the same 104th Congress that entertained a spate of harsh mandatory drug testing bills also expressed legislative concern with the protection of “privacy” via House of Representatives 184, the “Individual Privacy Protection Act of 1995.” This bill asserted in Section 2(4) that “the right to privacy is a personal and fundamental right protected by the Constitution of the United States.” The detailed language of the proposal made clear the federal intent and authority to regulate private sector violations of “privacy.” What the bill’s authors and backers focused on, however, was the “confidentiality” of increasingly digitally stored and readily disseminated personal data collected in the course of commerce, not “privacy” of the Brandeis “right-to-be-left-alone” variety implicit—or as I shall contend, explicit—in the historical “strict construction” of the Fourth Amendment. On this latter, more fundamental issue—strengthening Constitutional proscriptions against unwarranted snooping and data acquisition—the legislative proposal was utterly silent.
We feel compelled to draw a negative inference when someone voices opposition to indiscriminate drug testing on Constitutional and ethical principles. Such is an unfortunate reaction, one that I hope my thesis will show to be unwarranted and ultimately counterproductive with respect to legitimate social interests, one that I hope my effort will help serve to dispel.
Thesis chapter outline:
- Introduction (now online, click here): A brief review of the pertinent particulars of the American Drug War and the evolution of drug testing policy. The history of currently outlawed intoxicants in America is one of waves of often religion-driven intolerance atop a racist undertow—a bible-thumping and xenophobic demonization of the indulgent. It has been a curious voyage from the laissez faire pharmacy to the sealed specimen vial.
A century ago, few could vote, but all could self-medicate as they saw fit. Today, anyone of majority age—irrespective of civic interest or acumen—can cast a ballot, but no one can self-medicate as he or she sees fit. Iconoclast libertarian and psychiatrist Dr. Thomas Szasz views this circumstance as one of our having traded a real right (personal autonomy) for a “fake” one (the right to select officeholders from cadres of candidates with only stylistically differing agendas for paternalism). True? Or mere libertarian romanticism regarding a past that was far less pharmacologically and epidemiologically benign than alleged?
We will examine the history and spread of mass drug screening, which began in earnest as then-President Richard Nixon looked to his advisors for tactics with which to divert public attention from his controversial prosecution of the Vietnam war. Widespread, flagrant drug use was seen as emblematic of the anti-war/countercultural movement Nixon so despised. Moreover, military personnel in Vietnam had begun smoking marijuana and indulging in heroin use. A War on Drugs, complete with suspicionless drug testing, would be embraced with a fervor that has yet to abate in the face of substantial evidence of futility.
- Epidemiology and risk assessment (now online, click here): Estimating the nature, extent, and cost of drug abuse. Upon close critical examination, serious questions emerge concerning the reliability of the data, most of which are gathered and disseminated by “War On Drugs” partisans intent on buttressing foregone conclusions. A small hors d’eouvre tray of some of the more outlandish “factoid” allegations:
All of the foregoing “facts” came from ostensibly reputable sources. None of them can be substantiated.
- “Recent government statistics reveal that 1 out of 6 workers has a drug problem.”
- “Estimates of on-the-job cocaine use (including crack) range from 10% to 50% of all employees.”
- “Today, 1 out of every 10 babies born in the United States is addicted to drugs.”
- “The nation’s health care system is straining from the war on drugs with nearly 500,000 drug-related hospital emergencies a year.”
- “Today’s marijuana is 6 to 10 ten times more potent than that of 20 years ago.”
- “Except for some advocates of drug legalization, no one seriously doubts that drug abuse kills and injures millions of Americans and their children each year.” (click here)
Laboratory methodology (now online, click here): Supreme court Justice Antonin Scalia, in his majority opinion upholding random drug tests for student athletes in Vernonia School District 47J v. Acton et ux (Docket 94-590, 1995), writes that “[T]he laboratory’s procedures are 99.94% accurate.” What can such a claim possibly mean?
A lab reports, for example, “123 ng./ml.” of benzoylecgonine (cocaine metabolite) in a urine sample. For openers, this implies not “122” or “124” (scientists call this the “significant figures” precision level). Minimally, such a finding asserts a (production, mind you) replicability of less than ± 1 ng./ml. Any takers?
- That a production specimen result of 100 ng/ml. is consistently confirmable within a range of ± 0.06 ng/ml. when divided into multiple aliquots for replicate analyses?
- That the lab correctly identifies 9,994 out of 10,000 true positives?
(The “alpha error” level, or “sensitivity” criterion.)
- That the lab correctly identifies 9,994 out of 10,000 true negatives?
(The “beta error” level, or “specificity” criterion, analytically the inverse of “alpha.”)
- That the ratio of true positives to false positives is 9,994 to 6?
- That the ratio of true negatives to false negatives is 9,994 to 6?
- Any of the foregoing documentably stratifiable by analytical parameters? Across a range of concentration levels, all the way down to the cut-off limits? For every instrument and technician? Across time?
- Or, (from the SAMHSA/NIDA federal lab certification protocol) that the lab can correctly identify and quantify external PT specimens within ± 20% of the reference values at least 80% of the time, and within ± 50% in the aggregate without a false positive, given a 10% false negative allowance?
A detailed inquiry into the incredible complexity of analytical chemistry methodology compels the conclusion that, in the absence of precise operational definitions—independently verified by meticulous internal quality control data and truly blind and rigorous ongoing external proficiency evaluations—Justice Scalia’s “99.94%” means nothing, beyond a naive and unsustainable faith in the exactitude of mass-production commercial science.
“In God We Trust: all others bring data.” - Brent James, M.D., M.Stat.
Constitutional privacy issues (now online, click here): Why do we have a Fourth Amendment, and should it really apply in drug testing policy cases? In her impassioned dissent in Vernonia v. Acton Justice O’Connor cited William J. Cuddihy’s 1990 Claremont College doctoral dissertation Origins and Original Meaning of the Fourth Amendment. The day I picked it up at Inter-library Loan I wished I’d brought a hand truck. It is a seminal, 4-volume, 19 lb., nearly 1,700 page compendium of exhaustive detail recounting the customs and codification of search and seizure procedure from ancient times through the period of raging pre-revolution colonial antipathy toward the aggressive and arbitrary Crown search and seizure tactics, practices the Framers specifically sought to prohibit via the Fourth Amendment. Cuddihy illuminates “Original Intent” with a vengeance. Dr. Bork, meet Dr. Cuddihy. Yes, the Fourth Amendment should apply to drug testing.
The still contentious question, however, revolves around the circumstances in which the Court finds justification for “administrative exceptions” departures from the “probable cause” and “warrants” clauses of the Fourth Amendment. In addition to Vernonia, the two principal suspicionless drug testing cases prior to Chandler illuminate the inner turmoil of the Court with respect to the drug testing issue: Skinner v. Railway Labor Executives Assn., 489 U.S. 602 (1989) (warrantless post-accident drug testing of railroad employees: upheld), and Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (mandatory pre-employment and promotion drug screening of Customs Dept. personnel: also upheld). Among the curiosities here is Justice Scalia’s majority opinion in Vernonia, which cites the Court’s majority conclusion in Treasury in support of his Vernonia rationale—somewhat disingenuously ignoring the fact that he wrote a lengthy and scathing dissent in Treasury characterizing the majority opinion thereof as “a kind of immolation of privacy and human dignity in symbolic opposition to drug use.”
Interesting. We shall have a close look at all of this.
Privacy as an ethical principle (now online, click here): “Privacy” is a term with multiple connotations. We mandate by law and social norms that certain activities be conducted “in private.” The privacy synonyms “secluded” and “exclusive” are positive keywords in real estate advertising. A media microphone rudely thrust in the face of a grieving parent who has just lost a child to an accident is disdainfully viewed as an egregious “invasion of privacy.” Similarly, celebrities bemoan (and frequently litigate against) their losses of privacy at the hands of their tabloid pursuers. In some major public policy contexts, however, privacy seems to be what we value most for ourselves, and what we would most like to deny others by casting aspersions on their privacy claims
How does a drug-abstinent individual counter the implication of cover-up motive in the question “If you’ve nothing to hide, how can you object to being tested?”—beyond the problematic retort “It’s none of your business.” We will examine developments in U.S. legal privacy norms, including current concerns regarding confidentiality in a digital age. We will then survey ethological, anthropological, cultural, historical, psychological, and philosophical evidence supporting the role of privacy in the development and functioning of socially competent citizens. Bentham got it wrong. The conventional framing of the privacy issue—which posits an intractable antagonism between personal privacy rights and social imperatives—is inadequate. A deeper understanding is required. Paradoxical though it may seem on a surface view, it can be shown that privacy is at once a personal and civic ethical good. The Panopticon is by wide margin a net loser: devoid of enduring moral force with respect to the dissolute; irrelevant at best with respect to the upright.
Counter-arguments, conclusions, and policy recommendations: Testing proponents insist that suspicionless screening is at once indispensible, reliable, and “fairer” than the alternatives. Their arguments, while vulnerable to methodical criticism, are not entirely baseless; we must and shall address them forthrightly. Some examples:
Such are indeed (in varying measure) substantive rejoinders worthy of considered and cogent responses. They will receive them. For instance, click here. Well, what if random and/or blanket drug tests were outlawed? Would we be left defenseless or seriously hampered in the effort to attenuate the damage caused by overindulgence in recreational toxins? Emphatically, no! With respect to the employment context, such assumes the continuing inevitability and optimal efficacy of the large and/or and impersonal command-and-control organizational paradigm in which employees are regarded as mere production means, responsive only to coercion. We can, however (and we should), improve on that to enact and administer policies that are at once effective and ethical. Frederick Winslow Taylor’s pessimistic and adversarial “Theory-X” labor-management model has been revealed as the ossified organizational cadaver it truly is, its epitaph writ large by a legion of progressive leadership practitioners.
- All of this high-minded hand-wringing over drug screening vis a vis the Fourth Amendment is just so much hot air—the 4th is not germane here; no job applicant, employee, athlete, or student has ever had a positive test result forwarded to the authorities for prosecution—the only circumstance which would rightfully bring the Fourth Amendment into play. Administrative privacy violations are properly dealt with in tort venues.
- Managers have ongoing and pressing production work to tend to; they cannot be expected to also don the role of drug detectives endlessly ruminating over the legalistic nuances of “probable cause.” Moreover, restricted to “cause” testing, managers might hesitate to ever invoke it for fear of being sued by those claiming harrassment—however frivolously—in the wake of subsequent negative assays.
- The “democratic” nature of mandatory testing: Everyone (ideally) from the CEO to the janitor is treated equally.
- Employers and co-workers have a right to safe and productive enterprises. Moreover, employers that fund life and health insurance benefits have a justifiable imperative to minimize such expenses. If you apply for private life and/or health insurance, you will be tested for street drugs in the course of the physical exam. Invasion of your privacy? What about the rights and obligations of the underwriter?
- The irrelevance of prevalence: As Justice Kennedy observed by the way of analogy in Treasury, (subsequently echoed by Justice Ginsberg in Vernonia), the fact that airport passenger screening almost never turns up weapons in no way negates the utility of the policy. Deterrence is often necessary—critical, even,—and cannot be evaluated solely by post-hoc empirical measures. Drug abuse prevalence might very well be considerably higher absent mandatory testing.
- With respect to the private sector, your argument fails to take into account the utterly legal norm of “employment-at-will.” Employers have the right to monitor you at will on the job, and terminate you for any reason, however arbitrary.
We need not destroy the village in order to “save” it.
A final thought: What my work is not is an apology for drug legalization. My argument is addressed to those who are in fact drug-free. While I am quite familiar with the decriminalization/legalization literature and find much of it well-argued and thought-provoking (see, for example, the excellent and extensive work compiled online at New York’s Lindesmith Center), I, like many, continue to have serious reservations, and if society insists on retaining draconian remedies for drug transgressions, so be it. Foolish, perhaps; counterproductive, perhaps; unjust, perhaps—but such is the subject of another thesis, and is mostly irrelevant to my policy argument. Some assume that if they are drug-abstinent (“...nothing to hide...”), they have no real stake in drug testing policy.
They are wrong.
Afterword: Why take on this acrimonious, possibly career-limiting subject? Click here.
Thesis Faculty Advisory Committee:
Jerry Simich, Ph.D., Department of Political Science (Chair)
Craig Walton, Ph.D., Director, Institute for Ethics & Policy Studies
Gary Jones, Ph.D., Department of Political Science
Margaret Louis, Ph.D., RN, College of Health Sciences
Originally posted online on February 9th, 1997
Copyright © 1997, 1998 by Robert E. Gladd, All Rights Reserved.