Mass. High Court Will Hear Arguments On Controversial Hair Drug Tests. Here's What To Know

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John Adams Courthouse. (Joe Difazio/WBUR)
John Adams Courthouse. (Joe Difazio/WBUR)

Massachusetts' highest court will hear arguments Monday on whether the Boston Police Department should have hired a police cadet who failed a drug test almost a decade ago.

The case centers around the controversial drug test that involves examining a person's hair follicles for illicit substances. Hair follicle drug tests have caused at least 10 other Boston officers of color to lose their jobs, sparking several lawsuits that claim the tests are racially discriminatory.

Here’s a rundown of things to know ahead of the arguments:

How Did We Get Here?

In 2010, then-30-year-old Michael Gannon gave a hair sample for a drug test when he was applying to be a Boston police officer. The results came back positive for cocaine, and the department decided to not hire him.

Gannon said he never did cocaine and previously had passed two other drug tests while in the cadet program. The day after he learned he failed the test, he voluntarily took another and passed. Still, the police department did not hire him.

Gannon appealed the decision to the state's Civil Service Commission in 2012 and won. A crucial part of his defense relied on the testimony of a clinical pharmacologist who explained that the possibility of contaminated drug results was a reasonable concern. The commission also cited earlier decisions involving other Boston police officers where hair follicle test results varied too greatly to be considered reliable.

However, a Massachusetts Superior Court overturned that decision in 2017, saying the Civil Service Commission overstepped its bounds. Gannon's appeal before the Supreme Judicial Court begins Monday.

Is The Test Reliable?

That’s a complicated question. Hair testing has only been around since the 1990s and scientists are still exploring if and how the test should be used, said Marta Concheiro-Guisan, a professor of forensic science at John Jay College of Criminal Justice in New York.

She explained hair follicle tests are widely used in Europe in criminal investigations and pre-employment checks. People in the U.S. are more skeptical, she said, with many American law enforcement agencies and employers instead relying on blood or urine tests.

A federal Court of Appeals upheld a decision that found hair testing is biased against people of color. The decision referenced studies that found cocaine will bind in higher concentrations to the melanin in dark hair.

That case involved several other officers who were terminated by the Boston Police Department (BPD) over hair samples that tested positive for illegal substances. Court documents show the city has paid out almost $2 million in back pay to four of those officers.

What Are Both Parties Saying?

Neither BPD nor Gannon’s lawyer would comment on the upcoming case. However, the briefs they submitted to the court both focus on whether the department had a legitimate cause to not hire Gannon.

The department maintains Gannon faced a higher burden of proof as a job applicant than an officer already on the force. Lawyers for the BPD have argued in court that hired officers are given more benefit of the doubt than new hires because they have previously passed vetting processes. A lawyer for the department said new hires present unknown burdens, and the BPD has a responsibility to not hire people who could put the public at risk.

The BPD also has stood by hair follicle testing throughout the appeals process in Gannon's case. It still administers the tests today. The department said it hopes state justices will uphold the Superior Court decision.

But they've also raised their own suspicions about hair follicle testing within recent years. Two years ago, BPD and the city of Boston sued the lab that conducted hair tests for them, claiming negligence.

Gannon's lawyers are pushing for the court to reinstate the decision by the Civil Service Commission. This would put Gannon's name at the top of BPD's list for new hires.

This segment aired on April 1, 2019.

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Jerome Campbell Reporter
Jerome Campbell was a WBUR Poverty and Justice Fellow whose reporting was supported by the Economic Hardship Reporting Project.



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