Skinner v Railway Labor Executives' Association

In the mid-1980s, the United States Federal Railroad Administration promulgated regulations to address the pervasive issue of employees operating trains within the United States while under the influence of drugs and alcohol. This case considered whether the requirement that railroad employees submit to blood, urine, and breath testing constituted an invasion of their right to privacy.

Drug and Alcohol Abuse on the Railroads: A Global Pandemic

On a hot summer’s day in July 1911, a train derailed in the town of Müllheim, Germany. The driver had taken to consuming large quantities of beer and wine to keep cool in the hot weather. Shortly after the train’s departure from Basel station, the driver collapsed at the controls, and the train, travelling at more than 5 times the speed limit, came off the tracks, killing 14 passengers. The driver was arrested after he was seen staggering around the crash site, visibly intoxicated.¹ The subsequent civil trial was significant for being perhaps the first civil case in history to include the testimony of a psychologist, with German Professor Karl Marbe offering expert opinion on the probable effects of alcohol on the mental status and reaction times of the employees involved in the Müllheim train derailment.²

In January 1987 in Baltimore County, Maryland, two trains collided in the dead of winter, killing 16 people and injuring 174 others. One of the trains had failed to stop at multiple warning signals. As the driver of the other train activated the emergency break, Harold Bergin, a New York chef travelling home after the Christmas holidays, looked up from the magazine article he was reading on how to make the perfect risotto.³ As the two trains collided, Harold witnessed a bright orange light fill his win­dow, before he was thrown more than ten feet into the aisle. It was later revealed that both the engineer (who was at the controls of the train that ran through the warning signals), and his brakeman, were under the influence of marijuana at the time. In the aftermath of the crash, emergency personnel worked in freezing temperatures to free trapped passengers, the last of whom was rescued 10 hours after the collision.⁴ The engineer later explained to a Senate committee that drug use was rife on the railroads, and he felt he would not be accepted by his co-workers unless he indulged with them, including during working hours.⁵

In March 2021, 20 people were killed and almost 200 more were injured⁶ when a speeding train crashed into a stationary train that had made an unscheduled stop in Sohag, a city on the banks of the Nile in Egypt. The impact caused four carriages to overturn, with some passengers thrown into an adjacent canal.⁷ The crash was initially blamed on unidentified passengers who had allegedly activated the emergency brakes in one of the trains.⁸ It was soon revealed, however, that the true cause of the disaster was rampant drug use by the railroad workers, with the signalman stoned on cannabis and the driver’s assistant (who was responsible for the stationary train’s unscheduled stop) high on opioids.⁹

Unfortunately, these rail disasters are not unique. There is a long tradition of drug and alcohol abuse on the railroads, where intoxication has been a major cause or contributing factor in train collisions and derailments around the world. In the United States, a 1979 study found that an estimated one in eight railroad workers drank at least once while on duty the previous year, with 5% of workers either reporting to work ‘very drunk’ or becoming ‘very drunk’ while on duty. It was further reported that between 1972 and 1983, at least 21 significant train accidents in the United States were attributable to drug or alcohol use by railroad employees.¹⁰

Rail Safety Regulations for Blood, Urine and Breath Testing

The alarming findings of the 1979 study led to the Federal Railroad Administration (FRA)­—the agency tasked with promulgating and enforcing rail safety regulations in the United States—issuing regulations in the mid-1980s¹¹ which mandated the taking of blood and urine samples from all railroad employees involved in a ‘major train accident’ or ‘impact accident’.¹² The regulations did not require any individualised suspicion that a particular employee was intoxicated at the time of the accident. Employees who refused to submit to testing were to be suspended for nine months. The regulations also gave the railroads a discretionary power to administer breath or urine tests to employees who violated certain safety rules, leading to a reportable incident.¹³

The Railway Labor Executives’ Association—an umbrella group of rail transport trade unions—filed suit, attempting to prohibit the new regulations. The Association argued that requiring railroad employees to submit to testing without probable cause constituted a violation of the Fourth Amendment which protects the right of citizens to be secure in their persons against unreasonable searches, and requires the Government to obtain a search warrant based on probable cause prior to conducting any such search.

Judgment of the Supreme Court of the United States

The Supreme Court of the United States accepted that blood, urine, and breath testing constituted a ‘search’ to which the Fourth Amendment applied. However, the majority held that the FRA’s drug testing program did not violate the Fourth Amendment prohibition against unreasonable searches, despite the fact the regulations did not require a warrant, probable cause, or even a reasonable suspicion that an employee was impaired by the use of drugs or alcohol prior to the collection of bodily fluids.

Whilst the majority recognised the desirability of conducting searches pursuant to a judicial warrant issued upon probable cause, it was nevertheless held that exceptions could be forged to this general rule, including when ‘special needs’ rendered the warrant and probable cause requirements impracticable. The FRA’s drug testing program was held to fall within this category, given the risk that delay caused by the procurement of a warrant could lead to the destruction of valuable evidence, namely the presence of drugs or alcohol.

Justice Kennedy, writing for the majority, balanced the railroad employees’ rights to a reasonable expectation of privacy with the societal need for safe railroad practices, and found that the privacy expectations of railroad employees were diminished because of their participation in a heavily regulated industry. Further, the majority considered that the processes for taking blood, breath or urine samples were routine, or did not otherwise constitute infringements on significant privacy interests. As such, the privacy interests of the railroad employees were held to be minimal. By contrast, the majority held that the Government’s interest in the testing was compelling, given the catastrophic risks associated with drug use on the railroads, and the need to deter railroad employees from using such substances:

’the Government interest in testing without a showing of individualized suspicion is compelling. Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences based on the interest of the general public … While no procedure can identify all impaired employees with ease and perfect accuracy, the FRA regulations supply an effective means of deterring employees engaged in safety-sensitive tasks from using controlled substances or alcohol in the first place.’

The Dissent

Justice Marshall, joined by Justice Brennan, dissented, referring to the compulsory collection and testing of railroad employees’ blood and urine as ‘a particularly Draconian weapon’ and a ‘grave threat’ to fundamental freedoms:

‘Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. … when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.’

Justice Marshall’s primary criticism of the majority’s judgment was its ‘unprincipled and dangerous’ widening of the ‘special needs’ exception to authorise searches of the human body without any evidence of wrongdoing. Marshall noted that the majority’s special needs exception differed from previous uses of the exception in two important ways: i) past uses of the exception applied only to searches of a person’s possessions, not to searches of the human body; and ii) past cases all contained an element of individualised suspicion, in contrast to the present case where all railroad employees involved in a major train accident were to be subjected to drug and alcohol testing.

Justice Marshall was also critical of the majority’s view that the intrusion of employees’ bodies was routine and minimal. For Marshall, the intrusiveness of the searches, combined with the interests in human dignity and privacy which the Fourth Amendment protects, demanded that any such searches be justified by probable cause. Here, Marshall was particularly concerned with technological advancements which made it possible for the State to discover not only what drugs or alcohol the employee consumed, but also whether they were an epileptic, diabetic, or clinically depressed.

Finally, Justice Marshall was critical of the majority’s ‘blind acceptance’ that the regulations were necessary to deter employees from using alcohol or drugs. Under the majority’s deterrence rationale, students who skip school to spend a sunny day at the zoo will refrain from taunting the lions because their truancy might be discovered in the event they are mauled. For Marshall, this type of reasoning was nonsensical, with the fear of the accident itself (whether being mauled by a lion, or being killed in a train accident) having the deterrent effect, rather than the post-accident revelation that the student had skipped school or the railroad employee was high on drugs.¹⁴

Justice Marshall concluded his powerful dissent with the following oft-cited passage from former Supreme Court Justice Oliver Wendell Holmes:

‘Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgement.’

Safety on the Railroads v Employee Privacy: Striking the Right Balance

In 2016, 27 years after the Supreme Court handed down its decision on the FRA’s drug testing regulations, the number of post-accident drug-positives among railroad employees was the highest it had ever been.¹⁵ Statistics of this nature lend credence to Justice Marshall’s observations that there are strong reasons to doubt whether post-accident drug testing has the deterrent effect proclaimed by the majority of the Supreme Court. Academic consideration of the Supreme Court’s decision has also seen the majority’s judgment criticised for its failure to give proper weight to employees’ privacy interests,¹⁶ and its dangerous extension of the ‘special needs’ exception to the testing of blood or urine samples. While the exception may be necessary when it comes to the collection of such samples, the impracticability of obtaining a warrant and establishing probable cause arguably disappears once the samples are collected and there is no longer a risk that evidence will be lost.¹⁷ In recent years, the broad special needs exception carved out by the Supreme Court has allowed the United States Foreign Intelligence Surveillance Court to justify privacy intrusions—in the form of the collection and examination of Americans’ communication data—by reference to the Government’s overriding need to combat the public danger of terrorism.¹⁸

For the passengers trapped in the freezing wreckage of the Baltimore County train crash, or those violently thrown from their carriages and into a nearby canal in Egypt, the importance of eradicating the use of drugs and alcohol by employees in safety sensitive positions is crystal clear. The extent to which fundamental freedoms should be sacrificed in pursuit of this goal remains a controversial question.