Yesterday a federal judge ruled that Florida Gov. Rick Scott's order subjecting all executive-branch employees to random drug testing violates the Fourth Amendment's ban on "unreasonable searches and seizures." U.S. District Judge Ursula Ungaro said Scott had failed to demonstrate a "compelling interest" in demanding the urine of every state employee working under him:
The [executive order] does not identify a concrete danger that must be addressed by suspicionless drug-testing of state employees, and the Governor shows no evidence of a drug use problem at the covered agencies….
All of the upheld drug-testing policies [in Supreme Court cases] were tailored to address a specific, serious problem. In contrast, the rationale for the Governor's policy consists of broad prognostications concerning taxpayer savings, improved public service, and reductions in health and safety risks that result from a drug-free workplace….
Unlike the programs [upheld by the Supreme Court], which were moored to concrete dangers, the Governor's program is detached from any readily apparent or demonstrated risk….
It is this general and essentially speculative interest that the Court must weigh against the individual privacy interests of those subject to the [executive order]….
The fundamental flaw of the [executive order] is that it infringes privacy interests in pursuit of a public interest which, in contrast to the concrete and carefully defined concerns in [the relevant Supreme Court cases], is insubstantial and largely speculative….The privacy interests infringed upon here outweigh the public interest sought.
There is nothing at all surprising about this decision. As I pointed out last year, Scott's order was clearly unconstitutional under the relevant precedents:
In two 1989 cases, the Supreme Court ruled that government-mandated urinalysis, although a "search" governed by the Fourth Amendment, can be justified without "particularized suspicion" in special circumstances. Specifically, the Court upheld testing ofrailroad employees who are involved in accidents or violate safety rules and customs agents who apply for positions that require them to carry guns or interdict drugs. In two subsequent cases, the Court upheld random drug testing of high school students who participate in sports or other extracurricular activities, again based on a "special need": preventing drug use by minors. By contrast, in 1997 the Court rejected a Georgia law requiring all candidates for public office to undergo drug testing, ruling that it "does not fit within the closely guarded category of constitutionally permissible suspicionless searches."
Based on these precedents, U.S. District Judge Robert Hinkle in 2004 overturned a Florida drug testing policy that was much narrower than Scott's, applying to employees of the state Department of Juvenile Justice (DJJ). Hinkle began his opinion (PDF) by noting that "DJJ now virtually concedes the policy cannot constitutionally be applied to at least some DJJ employees." He noted that Roderick Wenzel, the DJJ employee who brought the case after he was fired for refusing to surrender his bodily fluids, was "a long-term strategic planner who worked in an office, did not interact with juveniles in DJJ's care, and did not access confidential information on juveniles." Hinkle concluded that the department had failed to show "a concrete risk of real harm" that would justify suspicionless testing of employees like Wenzel.
After Scott issued his order, ACLU of Florida Executive Director Howard Simon said, "I'm not sure if Governor Scott does not know that the policy he ordered has already been declared unconstitutional or if he just doesn't care." Can't it be both?
Scott, by the way, claims "drug testing state employees is a common-sense means of ensuring a safe, efficient and productive work force," which is "why so many private employers drug test." Not so. For a closer look at that question, see my 2002 Reason article "Urine—or You're Out."