LAWMAKERS NEVER TIRE OF DRUG-TESTING BILLS

Legislators this session will repeal an unconstitutional drug-testing law,
but do not think they are losing their touch. Chances are they will enact
another.

"Defending unconstitutional laws" should be a separate appropriation in the
state budget.

The law that is to be deep-sixed was one of a batch passed in 1997, when
Gov. Foster seemed intent on subjecting the entire populace to urinalysis.
Included were welfare recipients, state contractors and elected officials.
Some legislators, however, thought random drug tests were an unwarranted
intrusion, at least in their own case, and filed suit when the bill
covering elected officials was passed.

Foster himself appeared in federal court to defend the statute, leaving it
to the attorneys to explore the Fourth Amendment issues while he explained
to Judge Eldon Fallon that drug tests could prove as useful in public life
as they had in private industry. Irrelevant, of course, but Foster did not
waste too much of the court's time, sitting down after only three minutes.

Perhaps Foster was impressed by his own forensic skills -- he subsequently
decided to fill the empty hours by enrolling at the Southern University Law
School -- but Fallon did not think much of the state's entire case,
throwing out the law on the spot.

The court of appeals and the U.S. Supreme Court agreed, and now State Sen.
Chris Ullo, D-Marrero, has filed a bill to repeal the statute. But here
comes state Sen. Butch Gautreaux, D-Morgan City, to force drug tests on
TOPS recipients, who would also be required, on pain of losing their
scholarships, to sign a pledge.

The bill calls for "random testing for the presences (sic) of drugs under
any circumstances which result in a reasonable suspicion that drugs are
being used." Well, if there were a reasonable suspicion, the tests would
hardly be random, but the bill goes on to say that they may be administered
"as part of a monitoring program."

So the idea really is to test students in the absence of the
"individualized suspicion" that the federal courts say is generally
required for a constitutional search.

It was the absence of such a suspicion that caused the U.S. Supreme Court
to throw out a Georgia law requiring candidates for public office to be
drug-tested. That ruling came down the same year that Foster rammed through
the bill to test elected officials in Louisiana.

State attorneys, however, sought to draw a distinction between candidates
and elected officials to demonstrate that the ruling on the Georgia statute
had no bearing on Louisiana's.

Running for an office, they argued, is a right, whereas holding one is a
privilege. You have a right to run, but you have no right to win. Kinda
like the Crescent City Classic.

The courts brushed that aside. No evidence was offered of drug addiction
among Louisiana public officials, who are mostly too busy with other vices
anyway, and thus the proposed tests would constitute an unreasonable search.

There are occasions when an "individualized suspicion" is not required, as,
for instance, when public safety is concerned. Drug tests for railroad
employees, the U.S. Supreme Court has ruled, are constitutional. The court
also approved drug tests for Oregon high school athletes on grounds that
they were role models and, as minors, did not enjoy the same rights to
privacy as the public at large.

It would be quite a leap from that to declare random drug tests for college
kids constitutional. Under Gautreaux's bill, TOPS grants would be awarded
only to applicants who had paid for a drug test and been found clean. Once
enrolled, students would be subject to random tests at state expense.

Gautreaux says that students accepting scholarships "should be willing to
abide by the laws of Louisiana." Certainly they should, but if there are no
grounds for suspecting students are breaking the law, the state should be
prepared to recognize their constitutional rights.

Drug tests are the great nostrum of the age, but they are expensive to
administer and expensive to defend in court. With the state hundreds of
millions in the hole, this bill makes no sense whatsoever. Presumably,
therefore, it will pass.