Drug Testing and Cannabis: An Unconstitutional Practice

The act of peeing in a cup to prove sobriety to a potential or current employer is a pretty standard procedure in the USA. While not every job requires a drug test, enough do to knock out shock value. But this acceptance of an invasive and cumbersome practice is relatively new.  In fact, there was a time when drug testing was widely regarded as an unconstitutional practice.

The fourth amendment to the US Constitution states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons to be seized.” Put simply, people have a right to reasonable privacy.  It’s that “unreasonable” word in the amendment that has evolved in a troubling way.

The History of Drug Testing

In 1985, the New Jersey Supreme Court ruled in Odenheim v. Carlstadt-East Rutherford Regional School District that the school’s mandated urinalysis as a part of the students’ annual physical violated their right to due process and to be free from unreasonable search and seizure.

In 1986, the United States District Court of Tennessee ruled in Lovvorn v. City of Chattanooga that testing of firefighters without reasonable suspicion was a violation of the fourth amendment

Even though firefighters are already expected to live with a lesser degree of privacy than civilians given their occupation and living quarters, the court still found that the requirement for mass urinalysis was unreasonable if there was nothing indicating that a specific individual may be using drugs.

Regularly, the courts ruled accordingly, finding that a public institution’s requirement for mass drug testing was a violation of privacy.   This trend makes sense.  If someone demonstrated no symptoms, it would be unreasonable to test them for a disease at their request.  It would seem like madness to require them to take a test. But this is the way that mass drug testing in the United States operates. What is responsible for this attitude shift?

The War on Drugs Escalated Drug Testing

Until the drug war, the constitutionality of drug testing was only unquestioned when it came to the military.  In Committee for GI Rights v. Callaway, the United States Court of Appeals for the District of Columbia Circuit ruled that drug testing without reasonable suspicion in the military context was constitutional under what they called the “administrative search exception,” or an exception that allows the state to balance its interests with the constitutional rights of an individual who serves the state.

As the zeal for a successful war on drugs escalated, it seemed like the courts were more likely to justify mandatory drug testing with the administrative search exception

In Shoemaker v. Handel, the U.S. Third Circuit Court of Appeals ruled that searches of voluntary participants in state regulated institutions was reasonable… even without reasonable suspicion. In 2002, the Supreme Court upheld the constitutionality of a high school’s mandate that all of its student athletes submit a drug test with or without reasonable suspicion.

Those Most at Risk for Drug Testing

Today, professional athletes, public school students, federal and state employees, and private employees are frequently subjected to routine drug tests without reasonable suspicion.  Outside of the constitutionality drug testing and cannabisquestion, drug testing faces an even more immediate problem: accuracy.

A lot of weight is put on a drug test outcome.  A positive result could result in unemployment, and that can be devastating for an individual and anyone dependent on that individual.  Consequently, people who take these tests rely on them to be accurate.

While they are correct most of the time, 5-10% of the time, urine tests can lead to false positives

Human error is a part of this—boredom, a lack of training, and carelessness are all factors that can produce an inaccurate result.  Medications and certain foods can also lead to false positives.  If you use cold medicine or nasal inhalers, you might test positive for amphetamines. If you take antihistamines, drink coca tea, eat poppy seeds, ingest six pills of over the counter Ibuprofen a day, or take antibiotics, your drug test results may be skewed.

Although most institutions use urine samples for drug screening, some also test hair follicles.  According to a study from the Institute of Forensic Medicine in Freiburg, Germany, it is possible for this apparently super accurate test to produce false positives due to “false transfer through cannabis consumers, via their hands, their sebum/sweat, or cannabis smoke.”

Given that most employers will take drug test results at face value, 100% accuracy is kind of a big deal. This begs the question… why do it?  A positive drug test result can lead to job loss, a tarnished reputation, benefit and pension loss, child-custody loss, and jail time.  If there is even a chance that drug tests might be inaccurate, should they be trusted at all?

The Consequences of Drug Testing

In addition to potentially ruining a life, mandatory drug tests aren’t particularly helpful in determining an employee’s ability to perform a job’s requirements.  Drug tests don’t test impairment; they just reveal whether a drug was consumed. If an employee shows up to work sober every day during the week, should that employee or potential employee be punished or passed over because of the edible they consumed responsibly in their marijuana-legal state over the weekend?  Should employees who use cannabis as medicine because nothing else works as well be fired or denied a job because of it?  Imagine if these questions were about alcohol consumption.  If an employee was fired from their weekday job for drinking alcohol over the weekend, people would be outraged regardless of the circumstances surrounding that act.

Mandatory drug testing is a violation of privacy and a dangerous gamble for employers to make with the lives of their employees.  Because a positive result could have such detrimental effects on a person’s life and because it is possible for a person to receive a false positive, the only thing that really needs to be tested at this point is the logic behind upholding such a risky practice.

Drug Testing and Cannabis: An Unconstitutional Practice was last modified: by
Dianna Benjamin

About the author: Dianna Benjamin is a freelance writer, teacher, wife, and mom horrified and fascinated by social justice and our inability--yet constant pursuit--to get it right.