Privacy

They Ain't Gonna Pee-Pee in No Cup

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Yesterday the Washington Supreme Court unanimously ruled that random drug testing of student athletes violates the state constitution. The U.S. Supreme Court has upheld random testing not only of athletes but of students participating in other extracurricular activities as well, and its logic (such as it is) suggests that random testing of all students also would be consistent with the Fourth Amendment. But Washington's constitution has a privacy guarantee that goes beyond the prohibition of unreasonable searches and seizures, saying, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." The state Supreme Court has read this clause as providing more protection than the Fourth Amendment, which is why Washington is one of the few states without drunk driving roadblocks. It also seems to be a pretty strong argument against the state law that makes it a felony to place an online bet in the privacy of one's home. 

The Washington Supreme Court ruling on student drug testing is here. A couple months ago, I noted that Washington Gov. Christine Gregoire wants to hop on the sobriety checkpoint bandwagon, despite the state Supreme Court's ruling that suspicionless traffic stops violate the constitution she has sworn to uphold. A challenge to Washington's gambling law, based on arguments that it conflicts with the federal Wire Act and the Commerce Clause, is scheduled to be heard next month.

Washington is not the only state where residents enjoy more privacy protection than the Fourth Amendment (as currently read) guarantees. The Pennsylvania Supreme Court, for example, has taken a dimmer view of student drug testing than the U.S. Supreme Court. The Alaska Supreme Court has interpreted the state constitution's privacy clause, which says the "right of the people to privacy is recognized and shall not be infringed," as prohibiting prosecution of people for possessing small amounts of marijuana at home. It has approved drug testing of police and firefighters applying for promotion or transfer but has ruled that random testing of police and firefighters is unconstitutional.

[Thanks to sage and Jim Anderson for the tip.]

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  1. Thanks to sage for the tip.

  2. Reads post.

    Looks out window at the mountains of the Olympic Peninsula.

    sighs

  3. Shouldn’t that clause protect drug use, as well?

  4. But how will they catch the young Clemenses?

  5. “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

    Hmm…….. Maybe Barry Bonds should sign with Seattle’s Major League baseball team….do they have one?…I lose track

  6. BTW, I was just kidding, Jacob. But I got a reply from Dave Weigel yesterday along the lines of “woohoo!”

  7. I don’t see why a privacy rule that goes above and beyond the 4th Amendment is needed here.

    But I need some help with a point of Constitutional law and maybe someone can help me out.

    I was poking around into New Deal era cases as part of a previous discussion we had here and I found US v. Butler.

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=297&invol=1

    In that case, the Roosevelt administration wanted to set up a program to reduce the number of acres planted with particular crops, to prop up farm prices. It passed an act providing certain benefits to farmers who joined up for the program, and creating a special penalty tax for any farmer who refused to join.

    The court held in favor of the plaintiffs challenging the law, and ruled that the government could not set up a system of rewards and punishments designed to get citizens to surrender rights held under the Constitution “voluntarily”. The issue in that case was taxes and subsidy payments, but I don’t really see how it wouldn’t apply to the extension of educational benefits, since the ruling read in part:

    It is an established principle that the attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted.

    This seems to be an open and shut case of using the government power to bestow educational benefits to get citizens to “voluntarily” surrender their 4th Amendment rights.

    The reason I need someone to help me out here is because the logic of this ruling would seem to be applicable to a host of other government programs as well, such as requiring security clearances for employment, requiring drug tests to get public housing, etc. And the fact that it has never been applied in such cases, as far as I know, leads me to believe that like a lot of New Deal-era rulings it was subsequently overruled by a later court.

    Does anyone know?

  8. United States v. Butler was never overturned, but it’s one of those magical opinions that allows expansion of the government while seeming to limit it. Although the decision found the disputed legislation unconstitutional, the decision takes a very broad view of Congress’s power under the Spending Clause. As such, so long as legislation doesn’t go quite as far as that in Butler, it’s constitutional.

  9. Let’s see.. Washington is also a no income-tax state, right?

    Looks like they might give Vermont a rival in the “best place to live for libertarians” race.

    -jcr

  10. Too bad Alaska’s application of their privacy clause doesn’t preclude arresting 18-20 year olds for possessing alcohol or marijuana in their homes they way it does people over 21.

  11. Looks like they might give Vermont a rival in the “best place to live for libertarians” race.

    AAAAH, not so fast.

    There was recently a bill in the legislature (that died, thank God) making it illegal to smoke in a car with kids.

    In the town where I live, you are not allowed to have a rain barrel on your property. Once it hits the ground it belongs to the county.

    Sales and property taxes are pretty bad. But overall I do like it here…for now. Since I don’t smoke and have no interest in collecting rain I guess those are just gripes I have as a libertarian.

  12. “It also seems to be a pretty strong argument against the state law that makes it a felony to place an online bet in the privacy of one’s home”

    The privacy clause does not make laws against home drug use or internet gambling unconstitutional. It only makes it difficult to catch people breaking these laws.

  13. Hey everybody
    Remember one year ago?
    It’s haiku time, yo!

  14. Urine in a cup
    Your privacy out of luck
    Boy does giving suck

  15. How fucked up are we that we force children to pee in a cup and hardly anyone sees anything wrong with it? It makes me long for the quaint olde days of “Just Say No”.

  16. Drug testing athletes
    So totally, like, uncool
    Go take a chill pill

  17. A cup of yellow
    A court pauses
    Thinks are getting bladder.

  18. Drugs’re bad, mmm’kay?
    Do your duty for the state:
    Pee into this cup.

  19. IIRC, I read a post here on H&R regarding how the founders neglected or didn’t feel the need to specify that each person has sole ownership of his or her own body and it’s chemical constituents contained within.

    /War on some drugs = War on cognitive freedoms
    //my body my choice, but not in regards to responsible drug use
    ///War on some drugs = inquisition (convert or lose your freedom to work and make a living by defacto drug testing encouraged by the government>insurance>drug testing companies who lie like dogs.

  20. piss away freedom
    for trinkets
    job not yours outsourced

  21. Just pee on the cup
    The tester will be grossed out
    And will not touch it

  22. “How fucked up are we that we force children to pee in a cup and hardly anyone sees anything wrong with it? It makes me long for the quaint olde days of “Just Say No”.”

    Because the prohibitionistas need the children to be pliable to their will by acting like drug testing is no big deal, as long as you’re not a responsible drug user dope fiend.

    Everyone, with few exceptions, bought this BS for whatever reason, now the war on some drugs is in high gear and one of the few remaining growth industries in the US is the drug testing / incarceration / treatment industrial complex.

    Pay no attention to the fact that those incarcerated or in treatment can’t fully participate in society and be productive citizens because they are locked up and are slaves to the state or to a private corporation.

  23. Attention teachers
    Please remember to include
    Pee time in your plans

  24. “right of the people to privacy is recognized and shall not be infringed,”

    That’s only for the National Guard.

  25. I won’t pee for you
    I won’t even give two shakes
    to your crazy scheme!

  26. started without me
    you should have sent me a note
    you’re all on the list

  27. “right of the people to privacy is recognized and shall not be infringed,”

    That’s only for the National Guard.

    Tell that to the dumbass Colorado National Guard SSGT who got caught with kiddie pron on a disk in the armory computer.

    /our military got rid of the dope fiends, now they get kiddie pron addicts.

    //saw it on the news last night (9news denver)

  28. Apologies, not a Haiku.

    now i lay
    me down
    to pee
    i pray
    the lord my
    job to keep

    if i should
    pee hot
    for the joint
    last weekend
    i pray the lord
    will burn down
    that drug testing company

  29. Some advice:
    DARE the pee hoarders-
    Just say NO!

  30. Oh, what’s the matter?
    Are you too good to collect
    A stranger’s urine?

  31. You must piss
    For your promotion.
    Here’s your cup.

    No way, but
    You can have the corn
    In my stool

  32. No way, but
    You can have the corn
    In my stool

    and you can
    Pick it out
    Yourself

  33. Small recepticle
    Bleached white paper in my hand
    Keeps me clean and straight

  34. goshtarnit

    i get more and more pissed (?) every day about how much more intrusive schools have become compared to when i was a kid.

    the thing about it i dislike the most is that it weans them to the idea that they have any particular rights at all. No free speech on school grounds, no privacy of their bodily fluids, zero-tolerance for ‘touching’, and on and on and on. It’s like submission to arbitrary authority is prerequisite for anything.

    the only solution i can see is to dismantle public education. Unfortunately all arguments i’ve seen lately (including one in the atlantic last month) are for increased federalization of our systems to make them more consistent.

    this is the piece i am referring to (titled – semi-misleadingly – “First, Kill All the School Boards”):

    http://www.theatlantic.com/doc/200801/miller-education

    the opener of the piece is good stuff, but the ‘solution’ the author sees to the problem of shitty, inconsistent local public school systems is to create a Defence Department-sized Federal Education Program

    The solution i’d see is to dismantle the public schools, and have a national voucher program. Let the market solve the problem

  35. The solution i’d see is to dismantle the public schools,

    I’ll settle for an amendment to the Constitution stating that no personal shall be forced to submit their bodily fluids without cause for suspicion…

  36. Maybe Barry Bonds should sign with Seattle’s Major League baseball team….do they have one?

    No, they have the Mariners… 😉

  37. Here in Wahkiakum County, home to this pee-in-the-cup controversy, lots of people have lots of time on their hands. Some take drugs. The rest seem to worry about those taking drugs.

    Except for me. Don’t take drugs. Don’t worry. I had some drug-happy trio burgle me a few years back, lost lots of stuff, but I still oppose these idiotic intrusions into privacy.

    Our biggest problem in the county is not the druggies. Or even the anti-druggies. It is people and politicians who insist that the county government get its hand into everything. A few years ago, the county bought the local medical clinic. A million dollars in subsidies later, and, uh . . . the cash-strapped county is shedding a number of traditional-but-unnecessary services, gently placing the county fair and the like outside its purview. They hope to rid themselves of the clinic, too, but I’m still waiting.

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