Question: National Treasury Employees Union v. Von Raab 489 U.S. 656 (1989)

The U.S. Customs Service implemented a drug screening program that required urinalysis tests of service employees who wanted to be transferred or promoted to positions where there might be some contact with drugs, such as confiscation, or where the employee might have to carry a firearm or handle classified material. The program provides that the results of the test may not be turned over to any other agency without the employee's written consent. The petitioners, a federal employees' union and one of its officials, sued claiming a violation of the Fourth Amendment. The district court agreed and enjoined the program because the plan was overly intrusive without probable cause or reasonable suspicion. The court of appeals vacated the injunction, holding that this type of search was reasonable in light of its limited scope and the service's strong interest in detecting drug use among employees in certain positions. The Supreme Court affirmed in connection with positions involving contact with drugs and/or firearms but vacated and remanded the decision in regard to those positions that require handling of classified materials.

Kennedy, J.

In Skinner v. Railway Labor Executives Assn., decided today, we held that federal regulations requiring employees of private railroads to produce urine samples for chemical testing implicate the Fourth Amendment, as those tests invade reasonable expectations of privacy. Our earlier cases have settled that the Fourth Amendment protects individuals from unreasonable searches conducted by the Government, even when the Government acts as an employer and, in view of our holding in Railway Labor that urine tests are searches, it follows that the Customs Service's drug testing program must meet the reasonableness requirement of the Fourth Amendment. While we have often emphasized and reiterate today that a search must be supported, as a general matter, by warrant issued upon probable cause, our decision in Railway Labor reaffirms the longstanding principle that neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.

As we note in Railway Labor, our cases establish that where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context. It is clear that the Customs Service's drug testing program is not designed to serve the ordinary needs of law enforcement. Test results may not be used in criminal prosecution of the employee without the employee's consent.

The purposes of the program are to deter drug use among those eligible for promotion to sensitive positions within the Service and to prevent the promotion of drug users to those positions. These substantial interests, no less than the Government's concern for safe rail transportation at issue in Railway Labor, present a special need that may justify departure from the ordinary warrant and probable cause requirements. Petitioners do not contend that a warrant is required by the balance of privacy and governmental interests in this context, nor could any such contention withstand scrutiny. We have recognized that requiring the Government to procure a warrant for every work-related intrusion "would conflict with ‘the common sense realization that government offices could not function if every employment decision became a constitutional matter.'" Even where it is reasonable to dispense with the warrant requirement in the particular circumstances, a search ordinarily must be based on probable cause.

We think Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty likewise have a diminished expectation of privacy in respect to intrusions occasioned by a urine test. Because successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep from the Service personal information that bears directly on their fitness. In sum, we believe that the Government has demonstrated that its compelling interests in safeguarding our borders and the public safety outweigh the privacy expectations of employees who seek to be promoted to positions that directly involve the interdiction of illegal drugs or who are required to carry a firearm. We hold that the testing of these employees is reasonable under the Fourth Amendment.

1. An approved drug use test must be conducted within reasonable parameters. In Capua,the court determined that a urine collection process may not be reasonable if "done under close surveillance of a government representative [as it] is likely to be a very embarrassing and humiliating experience." Courts will generally balance the employee's rights against the employer's stated basis for the test and determine whether the cause of the test is reasonable and substantial. For instance, in Skinner v. Railway Labor Executives Assn., the Supreme Court stated that the railway employees had a reduced expectation of privacy due to the highly regulated nature of the industry. In addition, societal interests, such as safety and security of the railways, may outweigh the individual employee's privacy interests. When might this be the case?

2. Why do you think the Court made a distinction between positions involving contact with drugs and firearms and positions that require handling of classified materials?