Drug Testing — Just Say ‘No’?

THE OPEN MIND
Host: Richard D. Heffner
Guest: Judge H. Lee Sarokin
Title: “Drug Testing: Just Say ‘No’?”
VTR: 4/22/90

I’m Richard Heffner, your host on THE OPEN MIND. Once, when I was wearing one of my other hats…not that of the academic or of the historian or of the broadcaster…I noted to my colleagues that I saw the rest of my life as a kind of grim race between the Grim Reaper, between my demise, on the one hand, and that of my Jeffersonian principles on the other…and that I rather much hoped that I would go before they do. Well, the years and circumstances, both intellectual and physical, make me a bit leery now of that kind of bravado, but the thought remains, rekindled in fact the very week that we record this program by a Newsweek magazine article entitled “Uncivil Liberties? Debating whether drug-war tactics are eroding Constitutional rights”. In it, Newsweek suggests that “America is beginning to confront the true costs, in terms of civil liberties and the rights of the individual, of the nationwide war against drugs”. And that reminds me how a former guest on THE OPEN MIND, the Honorable H. Lee Sarokin, a most distinguished United States Federal District Judge, has now seemed to fix his judicial canon against testing for drugs, quite in keeping with this statement last time that “there’s obviously nothing in the Constitution that ever dealt directly with the question…so everybody who’s dealing with the Constitutional aspects has to deal with this modern subject and try to apply the applicable law…it is not an easy thing to do”, he said, “but it’s possible to lay the issue of drug testing alongside the Constitution and come up with an answer”.

Well, how, Judge Sarokin, consistent both with private rights and the public interest? How do we do it?

Sarokin: Well, first of all the Fourth Amendment clearly provides that searches must be reasonable, and in my mind what reason means is that you have to have some particular reason to search a particular person, and the only other explanation and definition of reason can be, it must be done in a reasonable manner, that’s not excessively. And I have great difficulty in finding any justification that searching a large group of people to find a few who may be guilty complies with any of the original intent of that Fourth Amendment.

Heffner: Now, “original intent”, the last time we met you were talking, yourself, about how difficult it is to apply the real meaning today of “original intent”. But, let’s, let’s stick with reasonableness. Is it unreasonable for me and for other citizens to expect that the Constitution, which has more in it than 10 Amendments added to it, the Bill of Rights, that the Constitution must provide a way for us to be safe from the scourge of drugs?

Sarokin: We have to start with the assumption, in this discussion, that drugs are a terrible thing and that we do not want people operating airplanes or buses or carrying guns under the influence of, of drugs. That is the assumption that we have to discuss. The only question is how we go about accomplishing that, and whether or not the Constitution permits it or not.

Heffner: Now whether the Constitution permits it or not, you’re saying that you believe there are ways that the Constitution would permit our guarding ourselves.

Sarokin: Certainly. We have always, on all prior occasions in considering the Fourth Amendment, concluded that there must be some individualized basis for searching somebody. When it comes to drugs I don’t see any difficulty in saying that if a person is acting strangely, is not showing up for work, if his colleagues or her colleagues are complaining about the way the person is performing his or her duties, that you have some individualized suspicion which will justify requiring that person to submit to a drug test. But what we are doing under random drug testing is searching a hundred innocent people with a possibility that two or three of them may be guilty of using drugs.

Heffner: But Judge Sarokin, I’m sure there are people watching us right now who say, “I don’t want…I don’t want either for myself or for my family to wait until someone shows suspicious action and gives the good Judge reason for permitting action to be taken before searching, testing, whatever it be, before that searching or testing takes place”.

Sarokin: Of course, and I think everybody would agree with that, but if we are going to test the Constitution by deciding whether there is some benefit in violating it, then in almost every instance, you will come out in favor of a violation of the Constitution. The Fifth Amendment…most people would say, why should somebody who’s committed a crime not be required to say that they did it, and where they hid the weapon and what they did with the fruits of their robbery? But the mere fact that there’s some benefit in violating the provision does not mean that we should violate it. It’s there for a very good purpose. And certainly in this instance to protect those persons who are not taking drugs from what I consider to be a substantial intrusion into their privacy.

Heffner: But, you know, I couldn’t help but think…last time and then reading two opinions of yours on the question of drug testing, and then couldn’t help but agree with you in those particular instances, but carrying those instances further, one has to think in terms of self-protection. When you were here last time, and when any of my judicial or judicious friends are here there is reference made to the Fourth Amendment, the Fifth Amendment, the First Amendment, but I wondered…Article III, establishing the judiciary in the Constitution of the United States, comes considerably before the first ten amendments. Presumably it was further uppermost in the minds of the Founders. And, indeed, the Preamble to the Constitution of the United States: “We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America”. What has happened to our concern for that seminal, basic statement? And for the establishment, in Article III, of the judiciary, why do we refer so frequently, and it would seem almost exclusively to the First, the Fourth, the Fifth and other of the first ten amendments?

Sarokin: Well, because those are the amendments which are primarily directed at protecting individual rights, and they come up most commonly in our every day experience. They’re not necessarily outside the scope of the heart of the Constitution, but they provide the principles by which we, particularly, the judges deal with individual rights.

Heffner: But, you know, I went back to our…the transcript of our first program, and you say, “Well, basically I think that I am viewed as someone who focuses primarily on civil rights, individual rights, and I think that that is my obligation as a Federal Judge to do whatever is necessary to defend and encourage and support individual rights”. But it seems clear, from our basic document that there is more and probably, there should remain more at stake than individual rights. No?

Sarokin: Well, there may be other things that are equally important, but I would be hard-pressed to say, when we think about the basis and the purpose of the foundation of our democracy that there was anything viewed as being more important. And particularly, and that’s why I think, and I don’t want to over dramatize drug testing, but I think it is one of the most dangerous encroachments into individual rights. It’s somewhat akin to putting all of the Japanese in prison camps because of the fear that a few of them might somehow cooperate with what, at that time, was viewed as the enemy, and I think the sweeps, the idea of testing everybody because within that group you might find somebody using drugs, is really a very, very dangerous precedent, and I am fearful of it. I think I may have mentioned to you…I stand somewhat alone apparently, although Justice Scalia apparently agrees with me, which some people might find very surprising.

Heffner: Does that bother you?

Sarokin: Not at all. I think he’s a very bright man, and I think his language in one of these decisions…I think it was for the Customs employees was that drug testing was the immolation of privacy and…I’m trying to think of the other word that he used…human dignity or decency.

Heffner: But there are other kinds of immolation…death, destruction at the hands of those who are rendered incompetent by their involvement with drugs.

Sarokin: Of course, that’s the second part of the concern is whether or not drug tests have anything to do, and I’m certainly not a scientific expert, with whether or not they reveal the competency of a person to perform a task. The worst scenario, of course, is the airline pilot who is on drugs. Nobody wants airline pilots to be on drugs when they are flying, but theoretically, and I guess scientifically, if…if a pilot used cocaine on a Saturday night, a drug test on Monday would show that he had cocaine, but it might not have any effect whatsoever on his ability to fly. I’m not suggesting that if he’s taking it on Saturday we shouldn’t be worried on Monday. But the tests do not necessarily reveal a person’s ability to perform their respective functions.

Heffner: Alright, suppose we just accept that as a given…”the tests do not necessarily reveal the ability” of an airline pilot to perform his necessary functions. Let’s say you fly two days from now…how do you feel about committing yourself, members of your family to the mercies of someone who has, though we don’t know, what the impact will be…who has…today…

Sarokin: We have no argument…if we start with the premise…as I said at the outset, that no one wants persons in high risk occupations being under the influence of drugs or cocaine, heroin or anything else…that is a given. I, I cannot quarrel with that. The issue, though, is how do we go about ascertaining whether or not they indeed are under the influence or subject to the influence? That’s the question. Nobody can quarrel with the premise that we do not want people in these high risk occupations under the influence of drugs. I agree with that entirely.

Heffner: Okay.

Sarokin: It’s, it’s like flag-burning…the Justices who say that statutes making flag-burning a crime are unconstitutional, that does not mean that those judges or justices are in favor of flag-burning, and I am not in favor of airline pilots flying under the influence of drugs.

Heffner: You would say, you would concede that there is a disparity in the importance in our lives, and those of our viewers between the two things…

Sarokin: Of course, except…

Heffner: …of burning the flag…

Sarokin: …what disturbs me all the time is that when a judge issues a ruling based upon a matter of principle or a Constitutional amendment, somebody invariably asks the question, “Well, if a defendant in a criminal case is entitled to a new trial, how would the judge feel if it was his wife, or his daughter who had been the victim of that particular criminal activity?” And the answer is “That has nothing to do with it”. We are upholding principles, we don’t…we’re not defending the actions of the criminal or the crime, we’re defending the rights by which the person is tried for that crime.

Heffner: Now, do you mean to say that our principles, however lofty, are not based upon our concerns for everyday living?

Sarokin: No, I…

Heffner: Or that our principles, whether they are religious or moral, ethical…whatever they may be…

Sarokin: They may come in, into conflict, and that’s exactly what is happening with drug testing. Everybody believes that we want to deter people from using drugs, and we don’t want people under the influence of drugs if they can harm somebody else. But that comes into conflict with our fundamental beliefs and the Constitution that we just do not go around testing people with no basis whatsoever for believing that they are using drugs.

Heffner: But you see, this is why I went back to the Preamble to the Constitution. And I has to do with your statement, and it was in one of your opinions because I noted it, and no one could take exception to your statement about wanting to preserve and protect these Constitutional protections, but what about the general welfare? What about the other concerns for which the constitution was established? You write in the 1986 case, your opinion in the City of Plainfield versus the firemen, and then the policemen, you say, “The public interest in eliminating drugs in the work place is substantial, but to invade the privacy of the innocent in order to discover the guilty establishes a dangerous precedent, one which our Constitution mandates be rejected”. What does our Constitution mandate be accepted? What would you accept as Constitutional to achieve what you say you want to achieve?

Sarokin: Well, if we focus on the Fourth Amendment, we are talking about what has always been the interpretation of the Fourth Amendment, namely, that is if you have some reason to believe that a particular person is taking drugs, you have a right to search that person…if, if the danger to the community is the criterion then there are supposedly two million illegal guns in New York City. They are used to murder people. They are used to commit crimes. If this theory is right, namely that you can search the innocent in order to find the guilty and also protect the public, then why can’t you go into every apartment in New York City and say, “This is going to help the public. We’re going to find these 2 million illegal guns and confiscate them”. I don’t think anybody would accept that, but the analogy is so clear because again you have a good reason for doing, and that’s the explanation and the justification and you are searching the innocent to find a few who may be guilty.

Heffner: When we get to the point, when we have reduced the whole thing to that kind of absurdity, in which we search every home to find those guns, then let’s talk about it again at this table. But I think it’s…let me see, I wrote down page eight, so I presume it’s in this opinion of yours…

Sarokin: Of course, we live by precedent. We always have to be worried when we interpret the constitution and permit something like this. What’s going to happen next? That’s, that’s our business…

Heffner: But isn’t it…

Sarokin: …in anticipating and predicting what it means as a general principle.

Heffner: Is the…is the judiciary incapable of saying, “This action, taken now, is without precedent, but it is so required, so necessary that we will take this action, or permit this action and keep our weather-eye open very carefully for further actions which are, indeed, impermissible”.

Sarokin: We, we do that…and the Supreme Court certainly does it. The line drawing is the business of the court, and the courts, but I think, and again I don’t wish to over-dramatize it, I think random drug testing is a very dangerous precedent.

Heffner: Yes, but here you, you indicate that neither warrant nor probably cause is an irreducible requirement of a valid search. And you’re quoting the Supreme Court now. Where is it written, and I know you’ll say “the Constitution”, but what you must mean is our developing interpretation of the Constitution. Where is it written really, that we cannot protect ourselves, not with the broadest possible stroke, but without probably cause, in a class of people, in terms of their employment, who, if they are indeed under even at a remove, the influence of drugs, may pose a clear and present danger to the rest of society?

Sarokin: Of course, we have to distinguish, which we haven’t done so far, between the public sector and the private sector. The Fourth Amendment does not apply to private employment and I would imagine that a private employer could probably say certainly to prospective employees, “We have drug testing here. If you are not willing to subject yourself to the humiliation of urine testing, then don’t take the job”. The government, of course, is subject to the Fourth Amendment and that’s what really creates the problem.

Heffner: Yes, but you…in the Plainfield case, indicated, as one of your points, that the firemen had no reason to assume, there was nothing in their collective bargaining agreement, their union hadn’t been informed, etc….it was, if I may say, clearly a matter of a great deal of human stupidity in the way this came about. But that creates a humanly stupid straw man. Must there be that distinction between private and public?

Sarokin: Yes, because…although the problems with random drug testing that exist, the fear that there will bean invalid test, or that the samples will be mixed up, I would assume exist for both public and private sector. But those are the practical problems, those aren’t the principle problems. The principle problems that relate to the Fourth Amendment, of course, are only applicable to the government…our government agencies, and in the cases they’ve also extended obviously to those operations that are in effect, run by the government…such as the trains. But they don’t…the Fourth Amendment does not apply to the private sector.

Heffner: You know I was enormously bothered, which shouldn’t bother anybody that I was, by this reference to, what is it race track jockeys…

Sarokin: Yes.

Heffner: …that somehow or other it was alright because of the expectation that racing will be honest and will be above board in every respect, somehow or other it was okay for jockeys to be tested.

Sarokin: Well that’s why we were…you asked before about the analogy, whether or not this means that you could then go through every apartment in New York and look for guns. The analogy that was used was because racing was a regulated industry…has been used for other purposes. In our circuit…the Third Circuit has found that the testing of police officers is now appropriate and not in violation of the Constitution because if racing is a regulated industry, certainly police departments are regulated…

Heffner: And fire departments?

Sarokin: Yes. So that that’s the analogy, that’s the precedent, so that’s why I worry when we make this one intrusion into searching and permit random drug testing that it will lead, possibly, to other things. And pose a great danger.

Heffner: Yeah, but it seems to me you taking, again, something that…forgive me…sounds damn foolish to me…the race track, the jockeys and endowing that argument with “You see what I mean, what will happen, and therefore, let’s exclude firemen and policemen from this matter of random testing.

Sarokin: No, but…when the Supreme Court decides a matter, they decide it as a matter of general principle. They have not said that searching of Customs Officers is constitutional. They have said in general terms that there are circumstances when you can search government officers who carry weapons, who deal with drugs and that there’s a good reason to do it. There is a benefit to the public and to the government in finding out whether or not these people are on drugs. That’s the principle and once you say that it’s alright to search people because there’s a benefit to be gained in the results of that search, I don’t think that there’ll be any Fourth Amendment left. Because there’s always a benefit in searching if you can find something that can be used, either for deterrents purposes or to convict somebody, and so I can’t envision any circumstance where you would say, “Well, that wouldn’t be a good reason to have drug testing…because every body drives cars” and if safety is the basis for conducting these tests, then I’ll give you another ridiculous supposition…can we now stop motorists along the road and say, “Step out of your car, and here’s a cup, go into the bushes. We’ll take this cup back and test it”. Well, why not? If, if the purpose is to find out whether people are using drugs and there’s a danger if they are, what could be more dangerous than a driver of an automobile under the influence of drugs?

Heffner: Then what do we do as an alternative? Simply say, “Hey, it’s a complicated world, it’s a dangerous world, and we’re going to accept that fact rather than do damage to our traditional Constitutional principles”?

Sarokin: Oh, we’re not without the right to search. All I suggest that we do is have, as we have always had, and as the Constitution provides, some probably cause, or minimal suspicion that a particular individual may be using drugs – lateness on the job, failure to show up, frequent sick calls, acting strangely – just something that would cause you to single out that person and say, “Let’s find out whether that person is on drugs”, not test 100 people on the hope that maybe on of them may be under the influence.

Heffner: You and I both know that no one watching is going to be satisfied with that.

Sarokin: Of course not.

Heffner: Now, do you not have to , as some point, say with a proper respect for the opinions of mankind, which was the basis on which we established this republic, “I’m going to have to re-read the Constitution in terms of real needs…we do live in a real world”.

Sarokin: Except on this issue, and that’s why I smiled when I said “original intent”…nobody has any difficulty in knowing what the purpose of the Fourth Amendment was. They didn’t want the government searching persons or places without a good reason to search that particular person or place…it’s so simple. We were afraid of the government intrusion coming into our homes, stopping us on the street…that’s what distinguished us from a totalitarian government. We’re a democracy and we don’t allow sweeps for the purpose of bringing in a whole group of people in order to find out whether a few of them may be doing something wrong. We’ve never done that.

Heffner: Judge Sarokin…you’re right, we are a democracy, and it would seem that the will of the people, which is basic to a democracy, would require that the courts make that shift that at one time “saved nine” to protect what the public perceives as its real interests.

Sarokin: No, because I don’t think that we…in establishing this democracy and…that the Founding Fathers ever envisioned that the majority could come along, and say, for instance, “Let’s not have the Fifth Amendment anymore, and let’s compel people to confess their crimes”. There are ways to amend the Constitution, but it’s not the majority that can do it. It takes a great deal more than a majority, and it’s just for that reason that we make the amendment of the Constitution so difficult.

Heffner: And that’s why I’m glad you’re on the Federal bench and I do appreciate your joining me again today. You’ve got to promise to come back because obviously we’ve still just scratched the surface.

Sarokin: My pleasure. Thank you very much.

Heffner: Thanks, Judge Sarokin.

And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s intriguing guest, his ideas, this program, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Edythe and Dean Dowling Foundation; The New York Times Company Foundation; The Richard Lounsbery Foundation; and, from the corporate community, Mutual of America.