ACLU of Louisiana challenges random drug-testing for state officials

Monday, September 28, 1998

Requiring Louisiana state officials to submit to random drug tests amounts to an unconstitutional “clean-urine loyalty oath” that violates the First Amendment, the American Civil Liberties Union of Louisiana contends in a federal lawsuit filed recently.

The ACLU sued last week on behalf of Philip O'Neill, a local justice of the peace from Jefferson Parish, and Rep. Avery Alexander, D-New Orleans. The ACLU hopes to have the suit certified as a class action for the over 4,000 elected officials in the state.

The state House and Senate overwhelmingly passed the legislation, and Gov. Mike Foster signed it earlier this year. In September, a joint legislative committee approved rules for the drug testing, which will begin in January.

Under the law, elected officials can be randomly selected for drug tests. Once notified of her or his selection, the official would have to submit a urine sample within 32 hours. If the official fails to comply, she or he could face public censure and a $10,000 fine.

The ACLU charges that the random drug-testing law constitutes an unreasonable search under the Fourth Amendment, invades privacy rights and the right against self-incrimination under the Fifth Amendment and violates due-process rights under the Fourteenth Amendment.

Furthermore, the suit contends that requiring an elected official to submit to a random drug test is akin to requiring a loyalty oath. The U.S. Supreme Court has struck down state loyalty oaths in several cases, including Cramp v. Board of Public Instruction (1962), Baggett v. Bullitt (1964), Connell v. Higginbotham (1971) and Communist Party of Indiana v. Whitcomb.

Joe Cook, executive director of the Louisiana ACLU, said: “This clean-urine loyalty oath requires elected officials to accept a certain ideology in order to be accepted as an elected official. This law is similar to the loyalty oaths of the McCarthy era, where individuals had to swear they were not members of the Communist Party.”

In a press release sent out immediately after suit was filed, Cook said: “This kind of law has no place in a free and democratic society. Our elected officials should not have to prove their patriotism or allegiance by submitting to a urine test.”

Last year, the U.S. Supreme Court in Chandler v. Miller struck down a Georgia law requiring political candidates to take a drug test in order to qualify for state office. The Supreme Court did not reach the First Amendment arguments, deciding the case on Fourth Amendment grounds.

The court wrote: “To be reasonable under the Fourth Amendment, a search must ordinarily must be based on individualized suspicion of wrongdoing.” The high court also noted “the absence of any record of drug abuses by elected officials in Georgia.”

The defendants in the Louisiana suit include Governor Foster, the Louisiana State Board of Ethics and its individual members and two other state officials.

Foster's press office could not be reached for comment. However, The Advocate reports that Foster issued the following written statement late last week: “This lawsuit comes as no surprise to me. The ACLU has consistently criticized my efforts to implement drug-testing programs that I have always believed are effective methods of deterring the use of illegal drugs. In my opinion, elected officials should set an example for the rest of the state.”