Boston Police Must Discontinue Hair Drug Test

Statement of Community Organizations Urging Boston Police to Discontinue Hair Drug Test

It’s time for the City of Boston to take a stand against Psychemedics’ hair drug test.

The under-signed organizations have long been extremely concerned about the critical lack of racial diversity in the Boston Police Department (BPD) and the structural employment practices that stagnate progress. One of the key barriers to BPD diversity is the hair drug test, which disproportionately results in false positives for Black officers. In the wake of the recent Supreme Judicial Court (SJC) ruling that once again highlights the scientific unreliability of this test, we urge BPD to discontinue its use immediately.

As the Boston Globe recently stated in its editorial calling upon BPD to stop using this discredited test:

“Making sure that Boston police officers aren’t using drugs—that makes sense. But testing officers and applicants in a way that costs the city millions in lawsuits and may produce inaccurate results—well, that’s a lot less defensible. With yet another judgment going against the city, it’s clear that the police need a better way to conduct tests.”

See Problematic Drug Hair Tests for Boston Police Officers Should Be Retired, Boston Globe (Nov. 10, 2019), available at: https://www.bostonglobe.com/2019/11/10/opinion/problematic-drug-hair-test-boston-police-officers-should-be-retired/

Black representation in BPD falls far below the representative community demographics. Nearly 30% of Boston identifies as Black, yet only 22% of BPD employees so identify. When focused on managerial or supervisory sworn officers, that figure drops to 19%. In the next few years, with the anticipated retirement of a significant number of Black officers, BPD will become even less diverse. We urge the City to take a meaningful stand to improve racial diversity by ending the use of the discriminatory hair test.

The test’s many flaws have now been thoroughly established in numerous courts and recognized by the City itself:

• As the SJC held in last month’s decision, the test “is prone to produce false positives.” Boston Police Department v. Civil Service Commission, SJC-12653, slip op. at 10 (Oct. 30, 2019). Although the test can identify the presence of a drug in a hair sample, it “cannot determine the way the drug became incorporated into the hair follicle,” meaning that it cannot reliably distinguish between internal ingestion and external contamination. Id. at 12.

• As the SJC also noted, this “uncertainty surrounding environmental contamination is further confounded” by evidence that incorporation rates vary by hair color and ethnicity.  Id. at 12 n.14 (citing studies of differential contamination rates on “hair of different color (e.g., light, dark) and ethnic origin (e.g., Caucasian, African-American)”).

• Indeed, as the First Circuit Court of Appeals held in 2014, the test falls most heavily on Black officers: “the differential between positive test results for black and white employees was statistically significant.” Jones v. City of Boston, 752 F.3d 38, 47 (1^st Cir. 2014).

• And in an unsuccessful indemnification action against Psychemedics last year, the City itself described the hair testing performed by Psychemedics as “negligent and wrongful conduct….”  Psychemedics Corp. v. City of Boston, Suffolk Sup. Ct 17-2494-BLS1, Counterclaim of the City of Boston ¶49 (excerpts attached). The City faulted Psychemedics for its testing regime, correctly pointing out that “[t]here are no universal industry standards controlling the performance of hair testing” and that “[t]here are no uniform benchmarks for interpreting hair test results.”  Id. ¶17.

The financial costs to the City of continuing to use this highly flawed test are enormous – and growing.  In response to a recent public records request, BPD admitted that the City had spent over $2.1 million on outside counsel bills for hair test litigation through March 2019 (see attached).  And due to losses in court, the City was liable to wrongfully terminated officers “in amounts that have yet to be fully determined.”  Psychemedics v. City of Boston, supra, Counterclaim of the City of Boston ¶48.

Just considering partial payments for back pay and benefits that the City had already made to those officers by February 2018, the amounts exceeded $1.7 million.  Id.

At a time when the community is calling on the City to recommit to improving diversity, expending millions of scarce taxpayer dollars to continue defending this discriminatory test is unconscionable. That is not even to mention other costs that are harder to quantify but equally disturbing: the harm to dedicated public servants when their careers are derailed and they are falsely branded as drug users, and the cost to public safety when highly qualified officers of color are unfairly removed from the force.

The recent SJC decision makes it imperative for the City to address this problem now.  For all of the above reasons, we strongly urge the City to discontinue use of this scientifically unreliable and discriminatory test at BPD immediately.

Lawyers for Civil Rights

Massachusetts Association Minority Law Enforcement Officers (MAMLEO)

Boston Society of Vulcans

Massachusetts Employment Lawyers Association

ACLU of Massachusetts

Massachusetts Law Reform Institute

Hair Test Statement With Signatories