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Drug Testing News
Lawmakers never tire
of drug-testing bills
Wednesday April 09, 2003
Legislators this session will repeal an unconstitutional
drug-testing law, but do not think they are losing their
touch. Chances are they will enact another.
"Defending unconstitutional laws" should be a separate
appropriation in the state budget.
The law that is to be deep-sixed was one of a batch passed in
1997, when Gov. Foster seemed intent on subjecting the entire
populace to urinalysis. Included were welfare recipients,
state contractors and elected officials.
Some legislators, however, thought random drug tests were an
unwarranted intrusion, at least in their own case, and filed
suit when the bill covering elected officials was passed.
Foster himself appeared in federal court to defend the
statute, leaving it to the attorneys to explore the Fourth
Amendment issues while he explained to Judge Eldon Fallon that
drug tests could prove as useful in public life as they had in
private industry. Irrelevant, of course, but Foster did not
waste too much of the court's time, sitting down after only
Perhaps Foster was impressed by his own forensic skills -- he
subsequently decided to fill the empty hours by enrolling at
the Southern University Law School -- but Fallon did not think
much of the state's entire case, throwing out the law on the
The court of appeals and the U.S. Supreme Court agreed, and
now State Sen. Chris Ullo, D-Marrero, has filed a bill to
repeal the statute. But here comes state Sen. Butch Gautreaux,
D-Morgan City, to force drug tests on TOPS recipients, who
would also be required, on pain of losing their scholarships,
to sign a pledge.
The bill calls for "random testing for the presences (sic) of
drugs under any circumstances which result in a reasonable
suspicion that drugs are being used." Well, if there were a
reasonable suspicion, the tests would hardly be random, but
the bill goes on to say that they may be administered "as part
of a monitoring program."
So the idea really is to test students in the absence of the
"individualized suspicion" that the federal courts say is
generally required for a constitutional search.
It was the absence of such a suspicion that caused the U.S.
Supreme Court to throw out a Georgia law requiring candidates
for public office to be drug-tested. That ruling came down the
same year that Foster rammed through the bill to test elected
officials in Louisiana.
State attorneys, however, sought to draw a distinction between
candidates and elected officials to demonstrate that the
ruling on the Georgia statute had no bearing on Louisiana's.
Running for an office, they argued, is a right, whereas
holding one is a privilege. You have a right to run, but you
have no right to win. Kinda like the Crescent City Classic.
The courts brushed that aside. No evidence was offered of drug
addiction among Louisiana public officials, who are mostly too
busy with other vices anyway, and thus the proposed tests
would constitute an unreasonable search.
There are occasions when an "individualized suspicion" is not
required, as, for instance, when public safety is concerned.
Drug tests for railroad employees, the U.S. Supreme Court has
ruled, are constitutional. The court also approved drug tests
for Oregon high school athletes on grounds that they were role
models and, as minors, did not enjoy the same rights to
privacy as the public at large.
It would be quite a leap from that to declare random drug
tests for college kids constitutional. Under Gautreaux's bill,
TOPS grants would be awarded only to applicants who had paid
for a drug test and been found clean. Once enrolled, students
would be subject to random tests at state expense.
Gautreaux says that students accepting scholarships "should be
willing to abide by the laws of Louisiana." Certainly they
should, but if there are no grounds for suspecting students
are breaking the law, the state should be prepared to
recognize their constitutional rights.
Drug tests are the great nostrum of the age, but they are
expensive to administer and expensive to defend in court. With
the state hundreds of millions in the hole, this bill makes no
sense whatsoever. Presumably, therefore, it will pass.