High court allows wide drug testing All those seeking public jobs affected

WASHINGTON — WASHINGTON -- The Supreme Court, continuing its refusal for more than two years to put limits on the expanding demand for testing government workers for drug use, voted yesterday to leave intact the most sweeping decision yet in favor of tests.

Without comment and with no dissent, the court bypassed a federal appeals court ruling that appears to mean governments at all levels may, if they wish, demand a drug test from every applicant for a government job.


The justices' order was one of a series of actions on a busy day before they begin a four-week holiday recess. They also agreed to rule on the formula for dividing up seats in the House of Representatives and upheld broad powers of arrest for Secret Service agents as they seek to protect the president.

Under the lower court ruling in the drug-testing case, a government agency is free to order mandatory tests for those seeking public jobs, even if the applicants are seeking positions that have nothing to do with public safety, police work or government secrets. As long as the agency believes drug use is incompatible with an "efficient work force," it may require new job applicants to be tested, the lower court indicated.


With the Supreme Court's action yesterday and its repeated refusal to be drawn back into the testing controversy since its limited rulings on the issue in March 1989, it appears that those who have or seek jobs in government at any level have few, if any, remaining constitutional challenges to mandatory drug testing.

That leaves federal workers with the option of asking Congress for protection from tests, and leaves state and local government workers with the option of going to their legislatures or attempting challenges -- one state at a time -- under state constitutions. One such challenge, by the Boston police, succeeded recently in Massachusetts' highest state court.

The Supreme Court's apparently unanimous action on the case was the latest in a series of similar refusals to get involved as the scope of drug testing rules for public employees and job applicants has expanded.

In the latest case, Washington lawyer Carl Willner, who sought a job as an antitrust lawyer at Justice Department headquarters, was told he would have to take a drug test, even though the job did not involve any matter of public safety or any access to secret documents.

He refused to take the test and challenged the requirement that has been imposed on a wide array of positions at the Justice Department. A federal judge ruled in his favor and he got the job without a test, but the U.S. Circuit Court of Appeals ruled against him in March. Mr. Willner now must be tested if he wants to keep the job.

Mr. Willner's lawyer, former Maryland Attorney General Stephen H. Sachs, told the court in the appeal that the appeals court ruling will allow "the suspicionless urinalysis drug testing of all applicants for public employment." The case was Willner vs. Barr (No. 91-448).

In one of its other orders, the court promised a ruling before summer on the constitutionality of the 50-year-old law that governs which states win and lose seats in the House of Representatives after each national census.

A lower federal court, ruling in a case in which Montana is seeking to avoid losing one of its two seats in the House, struck down the 1941 law governing the reapportionment of the House every decade.


If Montana's challenge succeeds in the Supreme Court, new formulas might have to be used. One of the alternatives available could reshuffle as many as 18 states' House delegations, the court was told.

In their third significant action yesterday, the justices ruled 6-2 that the Secret Service is to be allowed wide discretion to make an arrest if agents fear that someone is a potential presidential assassin.

The court, without holding a hearing, overturned a lower court ruling that two Secret Service agents could be sued for damages for arresting a man they thought might be a threat to the life of former President Ronald Reagan.

A Los Angeles man, James V. Bryant, was arrested by the agents in May 1985 after preparing a rambling 13-page letter that spoke of an alleged plot to kill Mr. Reagan on a trip to Germany that the president was planning to take.

Criminal charges against Mr. Bryant ultimately were dismissed.

In an unsigned opinion, the Supreme Court majority said a lower court was wrong in concluding that the agents had insufficient basis for making the arrest.


Other actions


Aliens' jobs. The Supreme Court upheld unanimously yesterday a government rule that forbids illegal aliens in this country to get a job while they await a decision on whether they are to be deported. Under the rule, the government sometimes gives permission for an alien to work. A lower court had nullified the rule. Immigration and Naturalization Service vs. National Center for Immigrants' Rights (No. 90-1090).

Haitians. In another unanimous decision, the court ruled that the State Department had no legal duty to make public the identities of Haitians it interviewed to determine whether they were persecuted by their government after being sent back to Haiti. A lower court had ordered disclosure of those identities. State Department vs. Ray (No. 90-747).


Worker safety. The court agreed to decide before summer whether states are barred by federal law from taking action to protect public health and the environment by controlling the use of workers at hazardous-waste sites. A lower federal court ruled that worker safety at those sites is the federal government's responsibility. Gade vs. National Solid Wastes Management Association (No. 90-1676).



Lawyers' fees. Without comment, the justices refused to disturb a California judge's award of more than $3 million in legal fees to the attorneys who represented a wealthy Los Angeles couple who had fought over every issue, major and minor, in a court battle over their divorce that lasted three years and 10 months. Diller vs. Selvin & Weiner (Nos. 91-616 and 91-635).