In 1989 the U.S. Supreme Court upheld a drug test requirement for people seeking Customs Service positions that involved carrying a gun, handling classified material, or participating in drug interdiction. Justice Antonin Scalia dissented, calling the testing program an "immolation of privacy and human dignity in symbolic opposition to drug use." Scalia noted that the Customs Service policy required people to perform "an excretory function traditionally shielded by great privacy" while a monitor stood by, listening for "the normal sounds," after which "the excretion so produced [would] be turned over to the Government for chemical analysis." He deemed this "a type of search particularly destructive of privacy and offensive to personal dignity."
Six years later, Scalia considered a case involving much the same procedure, this time imposed on randomly selected athletes at a public high school. Writing for the majority, he said "the privacy interests compromised by the process of obtaining the urine sample are in our view negligible."
Last March the Supreme Court heard a challenge to a broader testing program at another public high school, covering students involved in any sort of competitive extracurricular activity, including chess, debate, band, choir, and cooking. "If your argument is good for this case," Justice David Souter told the school district's lawyer, "then your argument is a fortiori good for testing everyone in school." Scalia, who three months later would join the majority opinion upholding the drug test policy, did not seem troubled by that suggestion. "You're dealing with minors," he noted.
That factor helps explain Scalia's apparent equanimity at the prospect of subjecting every high school student to a ritual he had thought too degrading for customs agents. But his nonchalance also reflects the establishment of drug testing as an enduring fact of American life. What was once the "immolation of privacy and human dignity" is now business as usual.
While the government has led the way, the normalization of drug testing has occurred mainly in the private sector, where there are no constitutional barriers to the practice. Today about half of all U.S. employers require applicants, workers, or both to demonstrate the purity of their bodily fluids by peeing into a cup on demand. For defenders of liberty, this situation arouses mixed feelings.
On the one hand, freedom of contract means that businesses should be allowed to set whatever conditions they like for employment. People who don't want to let Home Depot or Wal-Mart sample their urine can take their labor elsewhere. The fact that drug testing is widespread suggests either that applicants and employees do not mind it much or that it enhances profits enough to justify the extra cost of finding and keeping workers, along with the direct expense of conducting the tests.
On the other hand, the profit motive is clearly not the only factor driving the use of drug testing. Through mandates and exhortation, the government has conscripted and enlisted employers to enforce the drug laws, just as it has compelled them to enforce the immigration laws. In 1989 William Bennett, then director of the Office of National Drug Control Policy, cited drug testing by employers as an important element of the government's crackdown on recreational users. "Because anyone using drugs stands a very good chance of being discovered, with disqualification from employment as a possible consequence," he said, "many will decide that the price of using drugs is just too high." The Institute for a Drug-Free Workplace, a coalition that includes companies that supply drug testing services as well as their customers, echoes this line. "Employers and employees have a large stake and legitimate role to play in the 'war on drugs,'" the institute argues. "A high level of user accountability...is the key to winning the 'war on drugs.'"
Federal policies requiring or encouraging drug testing by private employers include transportation regulations, conditions attached to government contracts, and propaganda aimed at convincing companies that good corporate citizens need to take an interest in their workers' urine. From the government's perspective, it does not matter whether this urological fixation is good for a company's bottom line. And given the meagerness of the evidence that drug testing makes economic sense, it probably would be much less popular with employers if it were purely a business practice rather than a weapon of prohibition. If it weren't for the war on drugs, it seems likely that employers would treat marijuana and other currently illegal intoxicants the way they treat alcohol, which they view as a problem only when it interferes with work.
Civilian drug testing got a big boost in 1986, when President Reagan issued an executive order declaring that "drugs will not be tolerated in the Federal workplace." The order asserted that "the use of illegal drugs, on or off duty," undermines productivity, health, safety, public confidence, and national security.
In addition to drug testing based on "reasonable suspicion" and following accidents, Reagan authorized testing applicants for government jobs and federal employees in "sensitive positions." Significantly, the order was based on the premise that "the Federal government, as the largest employer in the Nation, can and should show the way towards achieving drug-free workplaces." Two years later, Congress approved the Drug-Free Workplace Act of 1988, which demanded that all federal grant recipients and many contractors "maintain a drug-free workplace." Although the law did not explicitly require drug testing, in practice this was the surest way to demonstrate compliance.
Private employers, especially big companies with high profiles and lucrative government contracts (or hopes of getting them), soon followed the government's lead. In its surveys of large employers, the American Management Association found that the share with drug testing programs increased from 21 percent in 1987 to 81 percent in 1996. A 1988 survey by the Bureau of Labor Statistics estimated that drug testing was required by 16 percent of work sites nationwide.
Four years later, according to a survey by the statistician Tyler Hartwell and his colleagues, the share had increased to nearly half. In the 1997 National Household Survey on Drug Abuse (the source of the most recent nationwide data), 49 percent of respondents said their employers required some kind of drug testing.
As many as 50 million drug tests are performed each year in this country, generating revenue in the neighborhood of $1.5 billion. That's in addition to the money earned by specialists, such as consultants and medical review officers, who provide related services. Drug testing mainly affects pot smokers, because marijuana is much more popular than other illegal drugs and has the longest detection window. Traces of marijuana can be detected in urine for three or more days after a single dose, so someone who smoked a joint on Friday night could test positive on Monday morning. Daily marijuana smokers can test positive for weeks after their last puff. Because traces linger long after the drug?s effects have worn off, a positive result does not indicate intoxication or impairment. (See sidebar.)
The relevance of such test results to job performance is by no means clear. But in the late 1980s and early '90s, government propaganda and alarmist press coverage combined to persuade employers that they could no longer rely on traditional methods for distinguishing between good and bad workers. "When employers read in Time and Newsweek and U.S. News & World Report that there was an epidemic of drug abuse in America, they got scared like everyone else," says Lewis Maltby, president of the National Workrights Institute and a leading critic of drug testing. "They didn't want some pothead in their company causing a catastrophe and killing someone. Drug testing was the only answer that anyone presented to them, so they took it." Because drug testing was seen as an emergency measure, its costs and benefits were never carefully evaluated. "Most firms are understandably rigorous about making major investment decisions," Maltby says, "but drug testing was treated as an exception."