Treasury Employees v. Von Raab Primary Source eText

Primary Source

Customs agents unload a bag of smuggled cocaine they seized off Key West, Florida in 1989. The Treasury Employees v. Von Raab decision upheld a drug testing requirement by the United States Customs Service for employees who wanted to move into positions d Customs agents unload a bag of smuggled cocaine they seized off Key West, Florida in 1989. The Treasury Employees v. Von Raab decision upheld a drug testing requirement by the United States Customs Service for employees who wanted to move into positions dealing directly with narcotics.. © BETTMANN/CORBIS. REPRODUCED BY PERMISSION Published by Gale Cengage © BETTMANN/CORBIS. REPRODUCED BY PERMISSION

Supreme Court decision

By: Anthony Kennedy and Antonin Scalia

Date: March 21, 1989

Source: Kennedy, Anthony and Antonin Scalia. Treasury Employees v. Von Raab, 489 U.S. 656. Available online at http://laws.findlaw.com/us/489/656.html; website home page: http://laws.findlaw.com (accessed April 21, 2003).

About the Authors: Anthony Kennedy (1936–) graduated from Stanford University and Harvard Law School. He was appointed to the Supreme Court in 1988 after President Reagan's first two nominees failed. Kennedy has been more liberal than many conservatives had hoped.

Antonin Scalia (1936–) graduated from Harvard Law School in 1961. After teaching at the University of Virginia and George-town University, he was appointed to the U.S. Supreme Court in 1986. He is noted as a consistent advocate of "textualism," or holding the Constitution to its literal meaning. タ

Introduction

Many citizens in the late eighteenth century believed that the new U.S. Constitution gave too much power to the federal government and left the people vulnerable. To prevent governmental abuses, the First Congress added the Bill of Rights, the first ten amendments, to the Constitution. Included in the Bill of Rights is the Fourth Amendment, requiring that "the right of the people to be secure …against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause …and particularly describing the place to be searched, and the persons or things to be seized."

For many years, this amendment was applied primarily to searches of homes or possessions. Twentieth-century concerns about substance abuse, combined with the medical technology to detect and measure substance abuse, however, tested the limits of the Fourth Amendment. Those charged with drunken driving, for example, were tested to see how much they had drunk. Urinalysis could detect the presence of illegal drugs in a person's system. Individual, targeted drug testing made sense for those suspected of a crime, particularly since a warrant could be obtained. A gray area that emerged, however, was wider scale drug testing of, for example, a class of employees. As part of the U.S. "War on Drugs," the government required drug testing of certain Customs Service employees. The constitutionality of that program was challenged in Treasury Employees v. Von Raab.

Significance

The Supreme Court upheld the constitutionality of the Customs Service program requiring a urinalysis test of those holding jobs involving drug interdiction, firearms, or classified materials. Writing for the majority, Justice Kennedy held that in some (but not all) of the job categories, the government had proven the necessary connection between the jobs and the risks posed by drug use. In his dissent, Justice Scalia pointed out that no rampant problem of drug use had been found that would justify this invasion of civil liberties by "searching and seizing" without warrants. In his view, this program was designed more for public relations than for any real threat. The majority opinion, though, has withstood legal challenges so that, for example, some school districts in the early twenty-first century required random drug testing of athletes.

Primary Source: Treasury Employees v. Von Raab [excerpt]

SYNOPSIS: Justice Kennedy notes the relevance of the Fourth Amendment prohibition against search and seizure. He concludes, however, that the search must only be reasonable and that required drug testing of certain employees in most cases is reasonable. Justice Scalia dissents, holding that these tests are an affront to human dignity and are not supported by evidence demonstrating drug problems in the Customs Service.

Justice Kennedy delivered the opinion of the Court.

We granted certiorari to decide whether it violates the Fourth Amendment for the United States Customs Service to require a urinalysis test from employees who seek transfer or promotion to certain positions.…

The United States Customs Service, a bureau of the Department of the Treasury, is the federal agency responsible for processing persons, carriers, cargo, and mail into the United States, collecting revenue from imports, and enforcing customs and related laws.… An important responsibility of the Service is the interdiction and seizure of contraband, including illegal drugs.… In the routine discharge of their duties, many Customs employees have direct contact with those who traffic in drugs for profit. Drug import operations, often directed by sophisticated criminal syndicates, …may be effected by violence or its threat.…

In May 1986, the Commissioner announced implementation of the drug-testing program. Drug tests were made a condition of placement or employment for positions that meet one or more of three criteria. The first is direct involvement in drug interdiction or enforcement of related laws, an activity the Commissioner deemed fraught with obvious dangers to the mission of the agency and the lives of Customs agents.… The second criterion is a require ment that the incumbent carry firearms, as the Commissioner concluded that "[p]ublic safety demands that employees who carry deadly arms and are prepared to make instant life or death decisions be drug free." …The third criterion is a requirement for the incumbent to handle "classified" material, which the Commissioner determined might fall into the hands of smugglers if accessible to employees who, by reason of their own illegal drug use, are susceptible to bribery or blackmail.…

We granted certiorari.… We now affirm so much of the judgment of the Court of Appeals as upheld the testing of employees directly involved in drug interdiction or required to carry firearms. We vacate the judgment to the extent it upheld the testing of applicants for positions requiring the incumbent to handle classified materials, and remand for further proceedings.…

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 Executives 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 a warrant issued upon probable cause, …our decision in Railway Labor Executives 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 Executives, 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.…

The Customs Service has been entrusted with pressing responsibilities, and its mission would be compromised if it were required to seek search warrants in connection with routine, yet sensitive, employment decisions.

Furthermore, a warrant would provide little or nothing in the way of additional protection of personal privacy.…

Even where it is reasonable to dispense with the warrant requirement in the particular circumstances, a search ordinarily must be based on probable cause.… Our precedents have settled that, in cer tain limited circumstances, the Government's need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion.… We think the Government's need to conduct the suspicionless searches required by the Customs program outweighs the privacy interests of employees engaged directly in drug interdiction, and of those who otherwise are required to carry firearms.…

It is readily apparent that the Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment. Indeed, the Government's interest here is at least as important as its interest in searching travelers entering the country.…

While these operational realities will rarely affect an employee's expectations of privacy with respect to searches of his person, or of personal effects that the employee may bring to the workplace. . . , it is plain that certain forms of public employment may diminish privacy expectations even with respect to such personal searches.…

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 the intrusions occasioned by a urine test. Unlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity. Much the same is true of employees who are required to carry firearms. 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.… While reasonable tests designed to elicit this information doubtless infringe some privacy expectations, we do not believe these expectations outweigh the Government's compelling interests in safety and in the integrity of our borders.…

In light of the extraordinary safety and national security hazards that would attend the promotion of drug users to positions that require the carrying of firearms or the interdiction of controlled substances, the Service's policy of deterring drug users from seeking such promotions cannot be deemed unreasonable.…

In sum, we believe 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 that require the incumbent to carry a firearm. We hold that the testing of

these employees is reasonable under the Fourth Amendment.…

We are unable, on the present record, to assess the reasonableness of the Government's testing program insofar as it covers employees who are required "to handle classified material." We readily agree that the Government has a compelling interest in protecting truly sensitive information from those who, "under compulsion of circumstances or for other reasons, …might compromise [such] information.". . .

We also agree that employees who seek promotions to positions where they would handle sensitive information can be required to submit to a urine test under the Service's screening program, especially if the positions covered under this category require background investigations, medical examinations, or other intrusions that may be expected to diminish their expectations of privacy in respect of a urinalysis test.…

It is not clear, however, whether the category defined by the Service's testing directive encompasses only those Customs employees likely to gain access to sensitive information. Employees who are tested under the Service's scheme include those holding such diverse positions as "Accountant," "Accounting Technician," "Animal Caretaker," "Attorney (All)," "Baggage Clerk," "Co-op Student (All)," "Electric Equipment Repairer," "Mail Clerk/Assistant," and "Messenger.". . .

We cannot resolve this ambiguity on the basis of the record before us, and we think it is appropriate to remand the case to the Court of Appeals for such proceedings as may be necessary to clarify the scope of this category of employees subject to testing. Upon remand the Court of Appeals should examine the criteria used by the Service in determining what materials are classified and in deciding whom to test under this rubric. In assessing the reasonableness of requiring tests of these employees, the court should also consider pertinent information bearing upon the employees' privacy expectations, as well as the supervision to which these employees are already subject.…

We hold that the suspicionless testing of employees who apply for promotion to positions directly involving the interdiction of illegal drugs, or to positions that require the incumbent to carry a firearm, is reasonable. The Government's compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation's borders or the life of the citizenry outweigh the privacy interests of those who seek promotion to these positions, who enjoy a diminished expectation of privacy by virtue of the special, and obvious, physical and ethical demands of those positions. We do not decide whether testing those who apply for promotion to positions where they would handle "classified" information is reasonable because we find the record inadequate for this purpose.

The judgment of the Court of Appeals for the Fifth Circuit is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.…

Justice Scalia, with whom Justice Stevens joins, dissenting.…

Until today this Court had upheld a bodily search separate from arrest and without individualized suspicion of wrong-doing only with respect to prison inmates, relying upon the uniquely dangerous nature of that environment.… Today, in Skinner, we al low a less intrusive bodily search of railroad employees involved in train accidents. I joined the Court's opinion there because the demonstrated frequency of drug and alcohol use by the targeted class of employees, and the demonstrated connection between such use and grave harm, rendered the search a reasonable means of protecting society. I decline to join the Court's opinion in the present case because neither frequency of use nor connection to harm is demonstrated or even likely. In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use.…

The Court's opinion in the present case, however, will be searched in vain for real evidence of a real problem that will be solved by urine testing of Customs Service employees.…

It is not apparent to me that a Customs Service employee who uses drugs is significantly more likely to be bribed by a drug smuggler, any more than a Customs Service employee who wears diamonds is significantly more likely to be bribed by a diamond smuggler—unless, perhaps, the addiction to drugs is so severe, and requires so much money to maintain, that it would be detectable even without benefit of a urine test. Nor is it apparent to me that Customs officers who use drugs will be appreciably less "sympathetic" to their drug-interdiction mission, any more than police officers who exceed the speed limit in their private cars are appreciably less sympathetic to their mission of enforcing the traffic laws.… Nor, finally, is it apparent to me that urine tests will be even marginally more effective in preventing gun-carrying agents from risking "impaired perception and judgment" than is their current knowledge that, if impaired, they may be shot dead in unequal combat with unimpaired smugglers—unless, again, their addiction is so severe that no urine test is needed for detection.…

But if such a generalization suffices to justify de-meaning bodily searches, without particularized suspicion, to guard against the bribing or blackmailing of a law enforcement agent, or the careless use of a firearm, then the Fourth Amendment has become frail protection indeed.…

The only plausible explanation, in my view, is what the Commissioner himself offered in the concluding sentence of his memorandum to Customs Service employees announcing the program: "Implementation of the drug screening program would set an important example in our country's struggle with this most serious threat to our national health and security." …Or as respondent's brief to this Court asserted: "[I]f a law enforcement agency and its employees do not take the law seriously, neither will the public on which the agency's effectiveness depends." …What better way to show that the Government is serious about its "war on drugs" than to subject its employees on the front line of that war to this invasion of their privacy and affront to their dignity? To be sure, there is only a slight chance that it will prevent some serious public harm resulting from Service employee drug use, but it will show to the world that the Service is "clean," and—most important of all—will demonstrate the determination of the Government to eliminate this scourge of our society! I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.

There is irony in the Government's citation, in support of its position, of Justice Brandeis' statement in Olmstead v. United States …that "[f]or good or for ill, [our Government] teaches the whole people by its example." …Brandeis was there dissenting from the Court's admission of evidence obtained through an unlawful Government wiretap. He was not praising the Government's example of vigor and enthusiasm in combatting crime, but condemning its example that "the end justifies the means" …An even more apt quotation from that famous Brandeis dissent would have been the following:

[I]t is …immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.…

Those who lose because of the lack of understanding that be-got the present exercise in symbolism are not just the Customs Service employees, whose dignity is thus offended, but all of us—who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.

Further Resources

BOOKS

Brisbin, Richard A. Justice Antonin Scalia and the Conservative Revival. Baltimore, Md.: Johns Hopkins University Press, 1997.

Gilliom, John. Surveillance, Privacy, and the Law: Employee Drug Testing and the Politics of Social Control. Ann Arbor, Mich.: University of Michigan Press, 1994.

Italia, Bob, and Paul J. Deegan. Anthony Kennedy. Edina, Minn.: Abdo and Daughters, 1992.

Jussim, Daniel. Drug Tests and Polygraphs: Essential Tools or Violations of Privacy? New York: Messner, 1987.

Schultz, David A., and Christopher E. Smith. The Jurisprudential Vision of Justice Antonin Scalia. Lanham, Md.: Rowman and Littlefield, 1996.

Yarbrough, Tinsley E. The Rehnquist Court and the Constitution. Oxford: Oxford University Press, 2000.

WEBSITES

ACLU's Testimony on Drug Testing in the Workplace. Available online at http://www.cleartest.com/testinfo/aclu_on_drug_testing.htm; website home page: http://www.cleartest.com (accessed February 11, 2003).