Supreme Court: NASA Can Ask Employees About Drug Use

Non-government contractors had argued question was unconstitutional

Jan. 19, 2011 -- The Supreme Court today upheld the government's right to ask federal contract employees about past drug use.

Twenty-eight employees of the California Institute of Technology, who work at a multi-billion dollar research and development facility owned by NASA, filed suit against the government arguing that its background checks violate their constitutional right to privacy.

In an 8-0 decision written by Justice Samuel Alito the Court said that in this case the background check was constitutional because of the government's interest as an "employer and proprietor" to manage its internal operations.

"The Government has good reason to ask employees about their recent illegal-drug use." Justice Alito wrote, " Like any employer, the Government is entitled to have its projects staffed by reliable, law-abiding persons who will efficiently and effectively discharge their duties."

It was only in 2007 that NASA changed its policy and required the contractors -- many of whom had worked for years in the facility -- to undergo the same background checks as federal employees.

In court papers Dan Stormer, a lawyer for the contractors, objected to the questions, writing, "When the government compels individuals to relinquish control of sensitive personal information, the harm to personal dignity can be profound, regardless of how widely and to whom the information is later disseminated."

The question on the form asks whether in the past year the applicant has "used, possessed, supplied, or manufactured illegal drugs." And if so the applicant is asked to "provide information relating to the types of substance(s), the nature of the activity" and other details relating to treatment and counseling received.

At oral arguments, Neal Katyal, the acting solicitor general, said that the background checks came with accompanying safeguards to protect against unauthorized release. "These checks have been going on for millions of employees for dozens of years. They are part of the employment process. They are manifestly not roving checks on random individuals."

In his opinion, Justice Alito said that the contractor's information was protected by the Privacy Act, which covers all information collected during the background check process. "The Act requires written consent before the Government may disclose records pertaining to any individual."

Alito's opinion was tailored to the case at hand and he sidestepped the more controversial issue of deciding whether the Constitution protects any right to informational privacy.

"We assume, without deciding" he writes, that the Constitution protects a privacy right. He said that the background check does not violate "this right in the present case."

Although Justices Scalia and Thomas agreed with the Court's final decision, they wrote separate concurring opinions saying that no such privacy right exists in the Constitution.

"A federal constitutional right to "informational privacy" does not exist, they said.

Justice Elena Kagan recused herself from the case because she dealt with it in her previous job as solicitor general.