WASHINGTON — During the height of America's so-called war on drugs in 1990, Georgia passed a law requiring all candidates for state office to submit to a drug test. The act was unprecedented and has remained so - no other states have followed Georgia's lead.
But in an important case that may set new national standards for privacy rights, the United States Supreme Court heard arguments Jan. 14 about whether Georgia's drug test for politicians is constitutional.
In recent years, the high court has steadily granted the government new powers in bodily searches of individuals. The outcome of yesterday's hearing could curb - or dramatically bolster - that trend.
The case, Chandler v. Miller, arose in 1994 when three Georgia Libertarian Party candidates, including one for lieutenant governor, challenged the drug test as a violation of their Fourth Amendment rights forbidding "unreasonable searches and seizures."
They also claimed a secondary free-speech violation - saying the new law meant that they could not express themselves as elected state officials without passing a drug test.
The justices sought yesterday to determine how intrusive the Georgia law is, and how significant the problem is that the law was created to remedy.
Justice Anthony Kennedy asked whether a state agency could require its employees to submit to an annual physical exam, not for purposes of results, but just to protect employees.
Justice Sandra Day O'Connor pointed out that in the past, the high court has allowed drug testing only to fulfill a special need. Georgia Assistant Attorney General Patricia Guilday replied that the drug tests are needed so Georgia voters can trust their elected officials. The use of illegal drugs, and the holding of high office as a public role model, are unquestionably incompatible activities, Ms. Guilday said.
In an unusual twist, one plaintiff, Walker Chandler, acted as attorney for his own case. Mr. Chandler stated that a mandatory requirement to issue a urine sample prior to election is unlawful - not only because no grounds for suspicion exist against the candidates, but also that no pattern of abuse of illegal drugs among Georgia politicians has ever been shown to exist.
The three (known as the "Chandler group") lost their original case in two lower courts, including the 11th US Court of Appeals in Atlanta. The 11th Circuit, in a 2-to-1 decision, found the drug test not unconstitutional - saying that it helped citizens be more "appreciative of the perils of drug use."
The US Justice Department sided with Georgia, saying that persons are not required to run for high office in Georgia, hence a search is reasonable. It also stated the privacy concerns of a urinalysis are "negligible."
A broad range of constitutional scholars argue that the intrusive nature of a bodily test for persons of public standing will make it easier to suspend long held privacy rights for all Americans in the future.
JUSTICE David Souter asked a question comparing a search of the body for drugs to a search of papers or a house. Would it be acceptable, in order to show that a candidate did not deal or profit from drugs, to also search in detail his or her residence or all personal papers. "Why is opening the house less intrusive than opening the body?" Justice Souter inquired.
Part of the subtext of the case is the view of the Chandler candidates and other scholars who say that the real issue is not drug testing, but the levels politicians will go to get elected. Some say it would be sad for national standards restricting individual rights to originate in the ambitions of Georgia candidates for state office. "Ambition does strange things to people," says William Bryson, a leading criminal defense attorney in Anchorage, Alaska. "They want to get elected so badly they willingly give lip service to things like drug testing that they would have opposed ardently 10 years earlier."
Justice Stephen Breyer picked up on this point, asking Guilday, "What is the theory behind this statute other than a political statement?"
Guilday admitted the test would only catch hard-core users, since it relies on a fixed 30-day time period for testing. But she also asserted that "the information a drug test gives to voters is significant."
Currently, Supreme Court precedent states that US officials may only drug test ordinary citizens if there is some evidence that a individual crime or some pattern of illegality warrants that search. The two standards are "probable cause," and "reasonable suspicion."
In three recent cases, however, the high court has carved out several new exceptions in the area of drug testing - allowing both random searches and searches when there is no suspicion.
In 1989, the court granted drug tests when "special needs" arise for public safety - railroad engineers or airplane pilots, for example.
Also in 1989, the court allowed tests of US Customs Officials - persons in constant contact with drug entry points, in order to ensure that those officials were not themselves tempted to use or procure drugs.
In 1995, the court in a 6-to-3 decision allowed random drug testing of student athletes - saying in part that "deterring drug use by our nation's schoolchildren is at least as important" as the safety factors it established in 1989.