Law: Putting Them All to the Test

Preparing for exams is an accepted part of classroom life, but students at Henry P. Becton Regional High School in East Rutherford, N.J., may soon be given the sort of test that is hard to cram for. Two months ago, the local school board voted that all 479 of the youngsters at Becton must submit to urinalysis in a search for drug users. The screening is now on hold, while five students backed by the American Civil Liberties Union test the testing in court. “It’s against the Bill of Rights that we’re supposed to be learning about in school,” says Carla Odenheim, a senior and one of the five Becton plaintiffs. Superintendent Alfred Marbaise counters that he is trying to create a drug-free environment. “We see ourselves doing something in the best interests of our kids,” he explains.

Those competing values are increasingly set against each other as Americans face more and more screening designed to combat drugs, drunk driving, terrorism, on-the-job thievery and, most recently, AIDS. Major league baseball players last month temporarily deflected a push for voluntary drug testing. The metal detectors familiar at airports are now found at many government buildings. In the first six months after the Dade County courthouse in Miami installed a detector last year, an amazing 3,000 weapons were discovered. Peter Bensinger, former administrator of the federal Drug Enforcement Agency, estimates that about one-quarter of FORTUNE 500 companies require job applicants to undergo urinalysis to detect drug use.

Concern about AIDS has prompted calls for public health workers, dentists and even barbers to be tested for exposure to the virus believed to cause the disease. This month the armed services are starting such screening for all recruits. The National Education Association last week supported the right of schools to require tests of students and teachers when there was “reasonable” cause to believe they had been infected. Fearful of expensive claims by AIDS patients, insurance companies are working to change laws in California and Wisconsin that bar the use of AIDS blood tests to evaluate policy applicants. Some insurance companies contend that such prohibitions would require them to exclude AIDS-related medical expenses from coverage or to raise the premiums of all policyholders.

Supporters of testing in general argue that it is justified by pressing requirements of public health and safety. In August the Tennessee Valley Authority began using urinalysis to check all new nuclear-plant employees for drug use because, says Joe Gross, chief of employment, “we’re very concerned about nuclear-plant safety, and this is one aspect of it–having a work force free of alcohol or drug abuse.” Southern Pacific Railway claims that since it began drug and alcohol screening last year, on-the-job accidents and injuries attributed to human error have dropped by nearly 71%.

But Southern Pacific is also being sued by a former employee who was fired after she refused to submit to the urinalysis. In Washington a school-bus aide, who registered positive for drugs in a urine test, was fired by the school district even though she was cleared in a retest; she too is suing. May an employer invade the privacy of workers, even to the extent of inspecting their bodily fluids? The answer is unclear, in part because laws vary from state to state. But courts often try to draw a distinction between the examination of external evidence–fingerprints or hair samples, for instance –and more intrusive tests like taking urine or blood. The rationale being served is also relevant. A test that is reasonable for an airline pilot might be extreme for a ticket clerk.

There is the further question of whether testers cast their nets too broadly, penalizing employees for off-the-job indulgences that have no bearing on their job performance. Urinalysis, for instance, can indicate drug use a week or more after it has taken place. Columbia University Professor Alan Westin says that how people spend their time away from work is a private matter: “Many generations of American workers would get roaring drunk on Saturday night, then show up for work a little hung over on Monday morning, and we led the world in production.” Westin believes tests should measure the level of impairment, as Breathalyzers do, not merely look for evidence of drugs or alcohol.

Other objections to testing include the claim that it is used mostly as a way to control subordinates, while higher executives are rarely tested. And there are many complaints about faulty screening. For urinalysis, a test called Emit (Enzyme Multiplied Immunoassay Test) is the method most commonly used to detect drugs. Though its manufacturer, the Syva Co., describes it as 97% to 99% accurate, critics say it is far less reliable in practice, in part because samples are not always properly stored or handled by lab personnel. “From the point of view of analytical chemistry, these Emit tests are unacceptable,” says Dr. David Greenblatt, a clinical pharmacologist at the New England Medical Center. Lie detectors are also frequently attacked as inaccurate, and Montana Congressman Patrick Williams has gathered 160 co-sponsors for a bill that would bar private employers from using them. “These gadgets are an electronic Maginot Line,” says Williams. “They don’t add to actual security.”

Williams, like many civil libertarians, is afraid that the general increase in testing means “a slow, insidious dissolution of people’s freedom.” Surprisingly, however, the shift in recent years has provoked little outcry. “People are more concerned with protecting their children and themselves than with intangible rights of privacy and civil liberties,” says Harvard Law Professor Arthur Miller. In the present atmosphere, the fear of what is lost with too much testing is evidently less than the fear of what is risked by too little.