DRUG TESTING TENANTS: DOES IT VIOLATE RIGHTS OF PRIVACY?

Real Property, Probate and Trust Journal, Fall 2003 by Aalberts, Robert J

Drug testing tenants and members of their families may present public policy issues. Contracts, including leases, can be vitiated or modified because of a paramount public interest.68 Yet, despite the states' authority to override certain contracts, parents are allowed, for example, to bind their child to a contract to be a child actress, to subrogation in an insurance contract, and to have a dispute involving the child submitted to arbitration.69 all of these decisions are presumably in the child's best interest. These examples of parental authority beg the question of whether requiring one's child to submit to a drug test as a condition for getting the family a lease is in the best interest of a child.

One case that may be instructive concerning the issue of drug testing children is Veronia School District 47Jv. Acton,10 In Acton, the Supreme Court ruled student athletes could be randomly drug tested.71 The Court found the testing reasonable and therefore not a violation of the Fourth Amendment's prohibition against illegal searches and seizures.72 The Court stated that athletes' privacy expectations are lower because athletes routinely subject themselves, among other things, to changing and showering in front of others.73 These diminished expectations must be weighed against the government's important interest in deterring school children from using drugs.74

The Court, however, did warn that all such random tests might not be constitutional.75 The Court emphasized that the government has entrusted to the public school system a significant responsibility as a guardian of the children.76 In such a critical position, the school system must adhere to what a reasonable guardian or tutor would do under the circumstances.77

The foregoing standard could be analogized with drug testing a tenant's minor child: is the parent acting as a reasonable guardian in allowing the child to be drug tested? One question is whether the minor actually has, in fact, a reasonable expectation of privacy when the child and the child's family are seeking a place to live. As with the parent, the child may have little, if any, expectation of privacy as a family member of a prospective tenant because prospective tenants have few privacy rights. In such a case, the parent would not be unreasonable in allowing the child to be tested.

On the other hand, the child has, as does the parent, an expectation of privacy once in a home. Therefore, the child, as the parent, would expect not to have his private activities in the home, even drug use, to be detected by unusual means. The parent might be ignoring the child's rights as well as coercing the child to waive any privacy rights. Even so, this strong expectation must be weighed against the landlord's important reasons for eradicating drug activity.78

III. Is TENANT DRUG TESTING AN ILLEGAL INVASION OF PRIVACY?

Because of the foregoing distinctions, as well as other reasons, periodically drug testing tenants, say to renew their leases, may violate tenants' common law rights to privacy. On the other hand, drug testing prospective tenants, those who have not yet occupied the premises, may not be as intrusive and is therefore more likely to be legal. In the latter situation, few, if any, expectations of privacy are created, in contrast to an existing tenant who is seeking a lease renewal. Thus, this Article now focuses on the privacy rights of existing tenants.