Pubdate: Wed, 09 Apr 2003
Source: Times-Picayune, The (LA)
Copyright: 2003 The Times-Picayune
Contact:  http://www.nola.com/t-p/
Details: http://www.mapinc.org/media/848
Source: Times-Picayune (LA)
Author: James Gill
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

LAWMAKERS NEVER TIRE OF DRUG-TESTING BILLS

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.
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MAP posted-by: Terry Liittschwager