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Drug Testing News

Lawmakers never tire of drug-testing bills

Wednesday April 09, 2003
James Gill

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 three minutes.

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 spot.

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.