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ACLU COMPLAINTS MORE THAN JUST SPLITTING HAIRS

June 15, 1998
By Eric Zorn

For the American Civil Liberties Union of Illinois to be working on behalf of Chicago police officers is not unusual.

Over the years the ACLU has represented an extremely broad range of clients with civil-rights claims, so it should not surprise Mayor Richard Daley, Chicago aldermen and city police officials to find on their desks Monday a two-page broadside mailed Friday by the organization supporting rank-and-file officers and attacking a controversial random drug-testing procedure that the department plans to begin using on them.

The procedure—an analysis of hair clippings—can detect illegal drug use from about 7 to about 90 days prior to the taking of the test. Hair analysis, pioneered in the late 1970s, has almost no overlap with urinalysis, now used on all officers, which detects only recent drug ingestion.

And it has already resulted in a threefold increase in the number of drug-related dismissals of police recruits, upon whom it has been performed since last fall.

What is unusual is that the ACLU is agitating unilaterally, having not received any requests for help from officers. Indeed, the leadership of the Fraternal Order of Police has already OKd the city’s idea to make all officers subject to hair testing under the terms of next year’s new union contract.

But both national and local ACLU leaders say the FOP should reconsider, that the police union and the city are putting too much faith in technology that the ACLU charges is unregulated and prone to giving false positive results and results that discriminate against minorities.

The National Institute on Drug Abuse, one of the National Institutes of Health, shares some of these doubts. NIDA’s leading researcher on hair analysis, chemist Edward Cone, said Friday "the consensus of scientific opinion is that there are still too many unanswered questions for (hair analysis) to be used in employment-testing situations."
A Food and Drug Administration spokeswoman said the agency stands by a 1990 policy statement calling hair analysis an "unproven . . . unreliable" procedure. A 1992 consensus opinion of the Arizona-based Society of Forensic Toxicologists concludes that "results of hair analysis alone do not constitute sufficient evidence of drug use for application in the workplace," and the hair analysis expert at the U.S. naval labs reiterated Friday he has "significant worries" about the process.

Yet at the same time, a leading analytical chemist at the National Institute of Standards and Technology, also a government agency, said hair analysis labs "did a very good, very consistent job" detecting drugs in recent blind checks when they were sent identical sets of contaminated and uncontaminated samples.

One concern of skeptics is that drug residue in the air or on certain surfaces may misleadingly show up in a non-user’s hair sample. Another is that, per the naval lab research, darker, coarser hair is more susceptible to yielding both actual and false positive results than light, fine or bleached hair.

And since ethnic and racial minorities in the U.S. tend to have dark hair, the argument goes, the test will yield discriminatory results.

But another widely published expert on hair testing, criminologist Tom Mieczkowski of the University of South Florida at St. Petersburg, said such concerns are wildly exaggerated. Mieczkowski said current research shows that the hair preparation and analysis techniques now used by the most experienced labs—including industry leader Psychmedics Corp. of Cambridge, Mass., the lab Chicago uses—have nullified concerns about environmental contaminants and pigment bias, and have demonstrated hair analysis is even more reliable than urinalysis.

Psychmedics vice president Bill Thistle added that the 1990 FDA statement does not apply to contemporary methods and that courts now routinely accept hair analysis into evidence. He charged that naysayers and contrarians are motivated by a dislike of workplace drug testing.
In the case of the ACLU, Thistle is not off the mark.

The organization’s volunteer lobbying on behalf of Chicago cops is rooted in its position that to perform random drug tests on employees who have shown no signs of using drugs is an invasion of privacy. The ACLU prefers specialized skill-performance testing when there is evidence of on-the-job impairment.

But even ostensibly neutral, apolitical scientists seem to have sincere disagreements about hair analysis. This, too, is not unusual, particularly in an emerging technical field. These disagreements deserve a full hearing before the city decides to make locks the key to the future of our police officers.