DRUG TESTING TENANTS: DOES IT VIOLATE RIGHTS OF PRIVACY?

Detecting drug use in tenants, on the other hand, would be the only focus of the drug test and therefore is, by its nature and motivation, more intrusive. The drug test is not designed to help the tenant and his health needs in any way, but rather, it is meant to oust the tenant from his home if the test results indicate drug usage. So, while annual drug testing of workers is accepted generally under state laws (assuming the procedures are carried out correctly), annual testing of a tenant will not necessarily be treated the same by courts and legislatures in the future. Thus, in the absence of current, positive law governing tenant drug testing, these considerations may give rise to a successful lawsuit for invasion of privacy under the common law.55

D. Drug Testing the Family: Can Minor Children be Tested?

Another important distinction between employee and tenant drug testing is the issue of whether the tenant's minor children can also be tested. To fulfill the policy goal of eradicating drug activity from a housing complex, the drug testing of minor children may be crucial. For example, the Housing and Urban Development Agency (HUD) has promulgated regulations regarding drug activities on properties administered by PHAs. Quite understandably, HUD recognized the importance of regulations requiring that all family members, including minors, refrain from drug activity on or near the premises. If any of these parties are involved in drug activity, their actions could result in the eviction of the entire family.56 To illustrate this point, in the case of Rucker v. Davis, a well-known case regarding government efforts to eliminate drug activity in public housing, four families were evicted for drug activity. The families subsequently sued to regain their homes.57 In three of the four families, minor children were the parties apparently involved with drug use.58

In private housing, which is the focus of this Article, the circumstances are quite different because the drug test is administered to prevent drug activity. Parents or guardians of the minor children would thus be required by the landlord to consent to have their children tested as a condition for obtaining or renewing a lease. Parents are presumed to act in their child's best interest.59 One commentator, Jane Rutherford, has noted that parents are empowered to consent on their child's behalf to many kinds of acts that can greatly affect the child, including committing a child to a mental health facility without a hearing, consenting to a kidney transplant from one child to another,60 setting aside a minor child's marriage, prohibiting a minor child's application for marriage,61 maintaining a legal action on behalf of the child, including tort actions,62 asserting a child's constitutional right to religion and life,63 and even waiving at least some of a child's constitutional rights.64

Still, as Rutherford correctly points out, the presumption that the parent is acting in the child's best interest is troubling.65 For instance, courts may misjudge the parent's motivations, allowing the child to suffer as a result.66 Thus, there may be instances in which the state should intervene and overrule a parent's actions when, for example, "the health or safety of the children requires it."67