"What Is Legal Is Not Necessarily Ethical:" The Limits of Law and Drug Testing Programs

Adil E. Shamoo and Jonathan D. Moreno (2004) provide an unexceptionable critique of the SATURN (Student Athletic Testing Using Random Notification) drug- testing program in Oregon public schools. Their ultimate conclusion—that a study involving mandatory drug- testing of student athletes violates ethical standards for research on human subjects—is supported by commentaries from respected medical authorities (Holder 2004; Louria 2004; Resnik 2004). As a criminal justice scholar and critic of prohibition, however, I come at the issue from a different perspective. Is the SATURN program illegal or, more specifically, unconstitutional? As will be suggested below, the answer is almost assuredly "no"—the program would pass judicial muster under prevailing case precedents. But Shamoo and Moreno correctly note that "what is legal is not necessarily ethical," a point I will highlight at the end of this commentary. Although the SATURN program and similar drug-testing regimes might survive constitutional challenges, other potential limitations should be explored to prevent the proliferation of a surveillance society.

America's "drug war" has certainly produced its fair share of human casualties—innocents caught in the cross fire of drug-gang violence, for instance, and countless individuals incarcerated for narcotics-related offenses. But in a very real sense, another victim of drug prohibition has been the U.S. Constitution and, in particular, the civil liberties it affords all citizens. Prohibition has produced a type of "drug exceptionalism" in the legal system, with the courts turning a blind eye to infringements on, among other things, First Amendment religious freedom, the Sixth Amendment right to counsel, Eighth Amendment limitations on detention and punishment, and the Fourteenth Amendment's guarantee of equal protection (Luna 2002).

The primary "hors de combat of the government's so-called war on drugs," however, has been the Fourth Amendment's search and seizure provisions (United States v. Zapata-Ibarra, 223 F.3d 281 [2000]). Louria (2004) suggests that the Fourth Amendment's drug war-related demise can be traced back to the 1960s. Although agreeing with this chronology and much of his analysis, I would like to offer a slightly different explication on the evolution of search and seizure law. As detailed elsewhere (Luna 1999), three judicial moves set the stage for a doctrinal framework that would permit an array of drug war-related surveillance activities and, most relevant for present purposes, authorize various state-sponsored drug-testing regimes.

The first move was the Supreme Court's shift from a property- to a privacy-based jurisprudence based on the notion that "the Fourth Amendment protects people, not places" (Katz v. United States, 389 U.S. 347 [1967]). In particular, it safeguards "an expectation of privacy that society is prepared to consider reasonable." Although this interpretation was originally intended to provide greater protection against government surveillance, reasonableness is an inherently slippery term and subject to degenerative redefinition in subsequent cases. There is an all-too- natural tendency in the judiciary to deem as reasonable drug enforcement prerogatives that are countered only by the claims of convicted criminals, with each decision setting a new, lower baseline of privacy for the next. As a consequence, the Court has tolerated drug agents who ignore "no trespassing" signs, jump over locked fences, snoop into buildings adjacent to residences, parse through garbage bags, fly over houses to spy on backyard activities, and even peer into homes through gaps in drawn window blinds—all in search of illegal narcotics (Luna 2002).

The second and third doctrinal moves were premised on a "disjunctive" interpretation of the Fourth Amendment's text (Luna 1999), separating the Reasonableness Clause—which protects citizens against "unreasonable searches and seizures"—from the Warrant Clause—which states, among other things, that judicial warrants must be based upon "probable cause." In upholding a police technique commonly referred to as a "stop and frisk," the Supreme Court refused to apply the...