Indiana has become the first State in the Union to institute mandatory suspicionless drug testing on Citizens who avail themselves to a program designed to retrain workers displaced by their companies moving offshore.            

            Commissar of the Indiana Department of Workforce Development, Mark Everson, termed the move a “common sense” approach.           

            “In this time of scarce resources,” Commissar Everson stated, “it is irresponsible to train someone for a job they can’t get because they use illegal drugs."           

            Prior to the mid-1980s, before the advent of the Government’s War on Drugs, Courts routinely held that suspicionless drug testing of students and employees. Courts ruled that under the United States Constitution there had to be individualized “reasonable suspicion” of drug use and that mass testing without reasonable suspicion was unconstitutional.           

            Before the mid-1980s drug testing was extremely limited. In 1969 the Department of Corrections in Washington, D.C. urine tested 129 prisoners in hopes of establishing a causal relationship between drug use and crime. As these were prisoners who had been locked up in prison it is hard to see the scientific merit of such data but because they were prisoners, and as prisoners have limited rights, it was not seen as a Constitutional question.           

            In 1971 the Pentagon instituted a practice of drug testing all soldiers returning from Vietnam. However, because drug use was an infraction that automatically led to a Court Marshall and, if found guilty, a dishonorable discharge, it was something of a P.R. problem in a War that was already a P.R. nightmare. To solve this dilemma President Richard M. Nixon reversed decades of policy and decriminalized drug use under the military code thus opening up the field for the first time for random drug tests.           

            In 1975 we see the U.S. Court case that laid the groundwork for the later explosion of suspicionless, random drug testing of private Citizens. In the Committee for GI Rights v. Callaway, the Supreme Court held that there existed an "Administrative Search Exception" to the 4th Amendment on the grounds that the State has a strong interest in ensuring military readiness that trumps the privacy rights of military members who already serve with a diminished expectation of Constitutional protections enjoyed by civilians.           

            In 1986 two huge shifts happened. The first was Ronald Reagan issued Executive Order 12564 which required Federal agencies to institute drug testing programs among its employees. Reagan cited the need for this, among other reasons, due to “billions of dollars of lost productivity each year,” and a paternalistic concern over the “well being” of employees. Reagan stated that Federal employees have, “a special trust” placed with them as “servants of the public,” a stance that does not bode well for Florida employees attempting to resist Governor Rick Scott’s attempt to put in place random, suspicionless drug testing for all Florida State employees.

            Also in 1986 came Shoemaker v. Handel, in which the Supreme Court decided that New Jersey Racing Requirements that all grooms, trainers and jockeys submit to urine testing and breathalyzers.  The Court ruled that such employment in such a highly regulated industry was “voluntary” and that, “the states interest in revenue generated by wagering” and the need for the racing industry to protect itself against, “untoward influences” trumped an individual’s right to privacy.

            In 1987 and 1988 we find the “Administrative Search Exception,” which previously had been used to justify the random suspicionless drug testing of U. S. Military personnel being applied by the lower Courts to person working as Federal prison guards and those employed in nuclear power plants and in 1989 the Supreme Court gave its blessing to the expanded use of the Administrative Search Exception to all people working for U.S. Customs ruling that anyone seeking employment in “sensitive positions” should expect a lower standard of privacy.            

            The Federal Government continued to expand suspicionless drug testing to other classes of working people, including teachers, and in 1995 the U.S. Supreme Court ruled in Veronia School District 47J v. Acton that random suspicionless drug testing of all student athletes was Constitutional. In a 6-3 decision, the Court held that warrantless drug testing was allowed if there was a “special need” for it and because athletes commonly took communal showers that they had a lower expectation of privacy to begin with. In a dissent joined by Justices David Souter and John Paul Stevens, Justice Sandra Day O’Connor decried the use of “blanket searches.” In this case the “epidemic” of drug use cited by the Majority amounted to 12 positive tests over four and a half years, a far smaller amount than previous cases where random suspicionless drug testing in schools was held to be unconstitutional. Justice Antonin Scalia reversed the stance he took in the earlier case involving Customs employees and sided with the Majority in this case.           

            In 1998 federal funds were expressly granted to small business under the Drug-Free Workplace Act of 1998 in order to impose random suspicionless drug testing on employees. President Bill Clinton also called for the drug testing of all minors seeking a driver’s license and this was also included in the Act though this provision seems not to have caught fire.            

            In 2002 the Supreme Court revisited student drug testing in a case out of Oklahoma and ruled 6-3 to allow random suspicionless drug testing of any student engaged in any school sponsored extracurricular activity whether it be show choir, chess club, student newspaper or any other activity. Justice O’Connor once again issued a strong dissent joined by Stevens and Souter and, this time, Ruth Bader Ginsburg. O’Connor argued that such testing harmed students by blocking access to positive activities. Justice Clarence Thomas, writing for the Majority, defended this ruling as “reasonable” because “the nationwide drug epidemic makes the war on drugs a pressing concern in every school,” and therefore, “This Court has not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless dug testing.”