PRESUMPTION OF GUILT

...The testing he and the majority of the Commission advocate, says Kaufman, is no more an invasion of privacy than requiring any American to walk through metal detectors at an airport...

...Indeed, at least a quarter of the Fortune 500 companies test all applicants for drugs...

...Richard Emery, a Fourth Amendment specialist with the New York Civil Liberties Union, also points out that under some local human-rights statutes, it is illegal to fire anyone who has a disability if that disability does not affect his job performance...

...As an index of the dragnet testing that is already in place, everyone who applies for work at United Airlines, IBM, Exxon, Du Pont, Federal Express, Lockheed, Shearson Lehman, TWA, and a good many other companies has to undergo urinalysis...

...More directly specific is a San Francisco ordinance—the first in the country— that prohibits employers from administering random, dragnet blood and urine tests...

...Any time management has a chance to control its work force more firmly, it seizes on that chance...

...The ACLU of New Jersey, representing five of the students, took the case to court and the rule was struck down because, said the judge, it violated each student's "legitimate expectation of privacy and personal security" under the Fourth Amendment...

...Drug use can be a disability, but not necessarily one that interferes with worker competence...

...It cannot identify specific drugs and it cannot distinguish between common cold medicine and illegal substances like marijuana and cocaine...

...that can screen for more than 150 genetic diseases, including sickle cell anemia...

...Also in 1985, the school board of the Patchogue-Medford School District on Long Island decided that to be given tenure, a teacher would have to submit to a urine test to determine the presence or absence of illegal drugs...

...Such a search is permissible, he added, only when there is particularized, reasonable suspicion "based on objective supportable facts...

...crophones in employee washrooms in order to pick up intelligence concerning "troublemakers...

...The need for alliances to preserve what's left of privacy grows greater by the day...

...Government employees and employees of private industry, railway workers and baseball players," Glasser wrote, "are being required in ever greater numbers to prove their innocence by submitting to intrusive and humiliating urine and blood tests...

...The Fourth Amendment requires that there be probable cause—or, in some instances, the lower standard of reasonable suspicion— that particular individuals may be doing or holding something illegal...

...Constitution, and if the language covers private employees, dragnet and random searches can be banned...

...Invasion-of-privacy horror stories and realistic remedies ought to be covered in union newspapers, general publications, and—never to be underestimated— letters to the editors of all kinds of papers and magazines...

...The test cannot determine when someone used a particular drug, or to what extent...

...Charles Seabrook, an unusually probing science writer, pointed out in the Atlanta Journal & Constitution last year that "from a single ounce of a person's blood, sophisticated computerized tests can determine, or at least strongly suggest, whether a person is predisposed to heart attacks, whether he smokes, drinks to excess, has had a venereal disease, or is epileptic, schizophrenic, or subject to depression...

...protects individuals from unreasonable searches of the person...

...Given enough blood and enough lab technicians, I could find out hundreds , of things about you—what you eat, what drugs you take, even the kind of booze you drink,' says Dr...

...If the contractors refuse, they should be denied any further Government business...

...Yet, according to Daniel Jussim, writing in the ACLU's Civil Liberties newsletter, "The Los Angeles Times, though its director of employee relations says there's no particular drug problem at his newspaper, recently adopted a mandatory urinalysis program 'to stay current with what other employers are doing.'" Imagine the impact in Los Angeles if Anthony Day, the civil libertarian who is editor of the Los Angeles Times's editorial page, were to lead a picket line outside the paper, with such signs as: James Otis, father of the Fourth Amendment, fought British general search warrants on behalf of working people—not just publishers...

...The new test uses radiation on hair and discloses not only what drugs have been taken but when they were taken, something urinalysis can't do...

...Some state constitutions have stronger privacy provisions than the U.S...

...In 1984, for example, the Eighth Circuit Court of Appeals affirmed a decision granting prison guards an injunction against random urinalysis even though they certainly perform crucial security functions...

...Not particular individuals about whom some reasonable suspicion of drug abuse exists, but all employees...

...There isn't much time left to create, in law, the best possible defenses against Government and employer intrusions into privacy, including intrusions that now seem inconceivable...

...The most commonly used urine test is notoriously unreliable," Ira Glasser noted in an ACLU statement...

...The compulsory extraction of bodily fluids is a search and seizure within the meaning of the Fourth Amendment...

...Well, my body is a lot more sacred than my home...

...On March 2, the President's Commission on Organized Crime strongly recommended—in the name of "national security"—that all Federal employees be tested for drug use...

...As bus driver Randy Kemp of Seattle put it in Time, "You've got to have a search warrant to search my house...

...In East Rutherford, New Jersey, last year, the school board ordered all students to undergo urine and blood testing for drugs and alcohol as part of an annual physical examination...

...Should an employer have access to such private information...

...But now, in the twilight of his career, Kaufman has again become the prosecutor's judge by supporting dragnet drug testing of millions of Americans...

...Kaufman was the judge who sent Ethel and Julius Rosenberg to the electric chair after praying earnestly for guidance, thus making God an accomplice in the execution...

...If you look at the composition of most ACLU affiliates and chapters, the overwhelming majority of members are lawyers, academics, enlightened businessmen, and a very few union officials...

...Job actions not for more pay but to be a free citizen at work could put some heat on certain company officials...

...As many workers can testify, privacy rights in the workplace have been eroding for a long time by means that range from management eavesdropping on employee telephone calls to placement of hidden miNat Hentoff, a member of The Progressive's Editorial Advisory Board, writes about music every month...

...Tom T. Hall, country singer In March, Ira Glasser, executive director of the American Civil Liberties Union, sent a letter to twenty of the nation's largest labor unions inviting them to take part in a series of seminars this fall to work out a strategy for the unions and the ACLU to protect the privacy of Americans where they work...

...Now, the notion that every worker is guilty until proven innocent also has the imprimatur of a blue-ribbon Government commission that insists on regarding urinalysis and other forms of testing workers—before and after they're hired—as essential for national security...

...Judge Kaufman and the Attorney General may have unwittingly rendered a considerable service to the nation because their proposal has begun to focus attention on routine invasions of privacy in the workplace...

...Even without prodding from the President's Commission, many other firms, large and small, would have joined the list...

...Charles Seabrook writes of new tests that can "detect the presence of the abnormal levels of chemicals found in patients with severe depression, schizophrenia, and manic-depression . . . that can detect chemical 'markers' that may mean a person is at high risk of developing diabetes, arthritis, or cancer...

...His "Who's on First" column about First Amendment issues appears four times a year...

...Workers in private employment, however, do not have Fourth Amendment protections because the order to give up bodily fluids does not come from the State...

...As the years went on, Kaufman, extremely sensitive to charges that he was the prosecutor's judge in the Rosenberg case, has developed an exceptional reputation as a defender of First Amendment rights of defendants, especially the press, against the Government...

...Alternative sources of protection are available, however...

...As for coming attractions that verify the prescience of George Orwell, The Washington Post reported in mid-1984, "Researchers in academia and industry say it is now possible to envision a product that could instantaneously assess whether employees are concentrating on their jobs by analyzing their brain waves as they work...

...James Woodford, a forensic chemist in Atlanta, who is frequently consulted in drug-related cases...

...In Suffolk County Supreme Court, Justice Thomas Stark could not have been more clear in his decision declaring that the school board had acted unconstitutionally: "The Fourth Amendment of the United States Constitution, applicable to state action through the Fourteenth...

...Blue-collar workers are seldom represented...

...And it cannot measure impairment of the ability to function on the job...

...Until now, most workers and their unions have been slow to recognize the importance of battling for such contract clauses...

...Furthermore, the Commission urged all private employers who have Federal contracts to begin dragnet testing of their workers...

...Union contracts can include, through collective bargaining, provisions extending to workers the equivalent of First Amendment, Fourth Amendment, and other constitutional rights...

...It may well be that the Meese-Kaufman assault on workers' privacy may spur more collective-bargaining strategy to get language that will give workers the same rights on the job as they have on the streets and at home...

...Another route to protecting privacy is through state constitutions and local statutes...

...What's more, the drug tests aren't even accurate...

...Bob Stanley, pitcher, Boston Red Sox "If you hang all the people, you'll get all the guilty...

...But when a worker can lose his job if he won't piss into a bottle, the Fourth Amendment, at least, becomes much less abstract, and that's why a coalition between the usual civil-liberties activists and workers is not only plausible but potentially effective...

...No unlawful search and seizure is involved, Meese explained, because, "by definition, it's not an unreasonable seizure because it's something the employee consents to as a condition of employment...

...There are also blood tests for drugs, and they reveal much more than the Government or a private employer claims to be testing for...

...Although Kaufman and Meese claim there are no constitutional problems with regard to testing public employees, case law indicates otherwise...

...However, as Tom Wicker noted in The New York Times, "Having one's bodily fluids forcibly and randomly inspected is substantially different from putting one's luggage through an electronic device...

...For many workers, civil liberties have long seemed to be a class issue...

...A growing number of large corporations have been doingjust what the President's Commission on Organized Crime is pushing...

...The court ruled that for the bodily fluids of public employees to be seized there has to be an individualized, reasonable basis for the search...

...In other words, when the boss tells you to pee in a bottle if you want to keep your job, you consent to that condition if you don't want to lose your job...

...The Commission went on to recommend that all private employers, not just those with Federal contracts, start collecting urine samples and otherwise screen their workers from drug use...

...Accordingly, if a local statute includes drug dependence as a disability, and if the worker is doing his job efficiently, he can't be fired if he fails a drug test...

...Some United Auto Workers locals, for example, have won contracts with clauses that make it difficult to fire an employee for anything he says or puts on a bulletin board or wears on a T-shirt...

...When the State is the employer, the Fourth Amendment prohibition against unreasonable search and seizure comes into play...

...The rights that have appealed most to workers are economic rights, and they don't see the ACLU and other civil liberties organizations as being particularly concerned with take-home pay and benefits...

...At the press conference with the Attorney General was the chairman of the President's Commission, Judge Irving Kaufman of the Second Circuit Court of Appeals...

...The seminars, he said, would deal not only with "random drug testing of people not suspected of using drugs" but also with "other violations of the right to privacy of the workplace...

...What prompted Glas-ser's rallying cry, however, was the proclamation of an unprecedented massive and official attack on workers' privacy...

...And state legislatures in California, Maine, Oregon, and Maryland are considering bills that would limit or regulate testing of employees...

...Any student who tested positive would be suspended or expelled from school...

...At the ACLU seminars with labor unions to be held in the months ahead, the first distinction to be drawn will be between the Government and private employers...

...Take the Los Angeles Times...

...Peter Rodino, chairman of the House Judiciary Committee and a member of the President's Commission on Organized Crime, objected strenuously, noting that such wholesale testing "raises civil-liberties concerns...

...The possibility of protests within certain shops also exists...

...Its editorial page has been among the most forceful and lucid in the nation in fighting to keep the Bill of Rights in working order...

...Clearly, there is potential for a natural alliance between workers and civil libertarians to educate local and state legislators and to lobby for protective statutes...

...Would an employer hire someone who is at risk of developing cancer...

...Nonsense, said Attorney General Edwin Meese, a mail-order scholar of the Framers' intentions on these matters...

...and cystic fibrosis...

...On a more modest level, a new test developed by Werner Baumgartner, a Los Angeles chemist, bypasses such old-time procedures as requiring the random suspect to urinate into a cup or bottle...