The Eighth Circuit en banc holds that (formerly) Linn State Technical College (now State Technical College of Missouri) could only drug test students in safety sensitive areas. Its broad testing program violates the Fourth Amendment. The college’s case is controlled by Chandler v. Miller and is weaker than the student drug testing case of Vernonia. Fostering a drug free environment can’t be a valid special need as defined by SCOTUS under the Fourth Amendment. Kittle-Aikeley v. Strong, 2016 U.S. App. LEXIS 23030 (8th Cir. Dec. 22, 2016) (en banc), panel at Kittle-Aikeley v. Claycomb, 807 F.3d 913 (8th Cir. 2015), prior opinion, Barrett v. Claycomb, 705 F.3d 315 (8th Cir. 2013):
2. Fostering a Drug-Free Environment as a Special Need
As set forth above, the stated purpose of Linn State’s drug-testing policy is “to provide a safe, healthy[,] and productive environment for everyone who learns and works at Linn State Technical College by detecting, preventing[,] and deterring drug use and abuse among students.” Linn State argues that fostering a drug-free environment constitutes an additional special need that justifies departure from the usual warrant and probable-cause requirements.We find the Supreme Court’s decision in Chandler v. Miller instructive in deciding whether Linn State has established the existence of this alleged special need. Chandler involved a Georgia statute that required candidates for designated state offices to certify that they had taken a drug test and that the test results were negative. 520 U.S. at 308. Georgia had defended the statute on grounds that “the use of illegal drugs draws into question an official’s judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials.” Id. at 318. According to Georgia, the statute served “to deter unlawful drug users from becoming candidates and thus stop[ped] them from attaining high state office.” Id. After conducting a “close review” of Georgia’s reasons for the certification requirement and considering the efficacy of the drug tests to “ferret out lawbreakers,” the Court held that the certification requirement was not warranted by a special need. Id. at 321, 320.
Georgia asserts no evidence of a drug problem among the State’s elected officials, those officials typically do not perform high-risk, safety-sensitive tasks, and the required certification immediately aids no interdiction effort. The need revealed, in short, is symbolic, not “special,” as that term draws meaning from our case law.
Id. at 321-22.
Similarly, Linn State has not shown that fostering a drug-free environment on its campus constitutes a “special need,” as defined by the Supreme Court. We note that no crisis sparked the Board of Regents’ decision to adopt the drug-testing policy and that Linn State does not believe it has a student drug-use problem greater than that experienced by other colleges. See Chandler, 520 U.S. at 318-19 (“Notably lacking … is any indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.”). The record indicates instead that Linn State began pursuing a drug-testing policy after Dean Pemberton reviewed responses to a survey of advisory council members that indicated support of such a policy. “A demonstrated problem of drug use, while not in all cases necessary to the validity of a testing regime, would shore up an assertion of special need for a suspicionless general search program.” Id. at 319. Evidence of a problem, the Supreme Court has said, “may help to clarify—and to substantiate—the precise hazards posed by such use.” Id.
Linn State argues that its drug-testing program helps “prepare the students for the realities of the workplace,” where “[t]here is a high likelihood graduates will be tested before they can land and keep good jobs.” Appellants’ Br. 33. Linn State asks, “Why bother to give people degrees if they can never get jobs in the real world, only because they cannot pass a drug test?” Id. This question presupposes that student-age drug use constitutes an irrevocable decision to continue in such use after one enters the adult workforce. Indeed, while Linn State presented evidence that some professions for which it trains its students require drug testing as a condition of employment, it presented only weak, anecdotal evidence that any of its students were not hired because they could not pass a potential employer’s drug test. Even assuming that Linn State had made such a showing, we nonetheless conclude that its interest in protecting adults from disadvantaging themselves in future employment contexts does not constitute a special need sufficient to justify its drug-testing policy.
Linn State argues that drug testing “helps instructors focus their time on instructing, instead of having only themselves to rely on in trying to discern whether or not students have issues with drugs.” Appellants’ Br. 33. Without any evidence that such a concern distracted its instructors, however, we cannot say that it is a “concrete danger demanding departure from the Fourth Amendment’s main rule.” See Chandler, 520 U.S. at 319. Linn State also argues that when students choose to attend Linn State, they accept “a package deal” that includes drug testing. Appellants’ Br. 34. Stated differently, Linn State argues the students who enroll in its educational programs consent to the drug-testing program. If a search is unreasonable under the Fourth Amendment, however, Linn State, as a state actor, cannot require its students to consent to that search as a condition of enrollment. See McDonnell, 809 F.2d at 1310 (“If a search is unreasonable, a government employer cannot require that its employees consent to that search as a condition of employment.”); see also Am. Fed’n of State, Cty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 873 (11th Cir. 2013) (“[W]e do not agree that employees’ submission to drug testing, on pain of termination, constitutes consent under governing Supreme Court case law.”).
The facts in this case are substantially different from those in Vernonia School District v. Acton, 515 U.S. 646 (1995), and Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002). In Vernonia, the Court upheld a school board policy that required public high school students to consent to suspicionless drug testing in order to participate in the school district’s athletics programs. 515 U.S. at 664-65. “An ‘immediate crisis’ caused by ‘a sharp increase in drug use’ in the school district sparked installation of the program.” Chandler, 520 U.S. at 316 (quoting Vernonia, 515 U.S. at 663, 648) (citations omitted). Central to the Court’s decision to uphold the policy in Vernonia was the fact that its subjects were “(1) children, who (2) ha[d] been committed to the temporary custody of the State as schoolmaster.” Vernonia, 515 U.S. at 654. Similarly, the Supreme Court upheld in Earls a policy requiring drug tests for all public middle and high school students who participated in competitive extracurricular activities, including athletics, band, choir, and Future Farmers of America. 536 U.S. at 825-26. The Court noted that “[t]he drug abuse problem among our Nation’s youth has hardly abated since Vernonia was decided in 1995.” Id. at 834. It then recounted specific evidence of drug use that the school had presented and ultimately “declin[ed] to second-guess the finding of the District Court that … the School District was faced with a drug problem when it adopted the Policy.” Id. at 834 (internal quotation marks and citation omitted). Moreover, “[a]s in Vernonia, ‘the necessity for the State to act [wa]s magnified by the fact that this evil is being visited … upon children for whom it ha[d] undertaken a special responsibility of care and direction.'” Id. at 835 (quoting Vernonia, 515 U.S. at 662). In contrast to Vernonia and Earls, Linn State’s drug-testing policy was not developed in response to any crisis and, most significantly, Linn State’s students are not children committed to the temporary custody of the state. See Vernonia 515 U.S. at 665 (“caution[ing] against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts” and reiterating that “the most significant element” in Vernonia was “that the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care”).
Linn State desires that its student body be drug free or be taking steps to become drug free. Linn State believes that its drug-testing policy would have the effect of increasing campus safety, that the drug-testing policy would both encourage students to avoid using drugs and help identify those students who are using drugs and are in need of assistance, and that the policy would boost the college’s recruitment, retention, and graduation rates.
Fostering a drug-free environment is surely a laudable goal, but our review of Linn State’s drug-testing program and its asserted justification for conducting suspicionless searches leads us to conclude that Linn State has not demonstrated that fostering a drug-free environment is a special need, as that term has been defined by the Supreme Court in Skinner, Von Raab, and Chandler. See Ferguson v. City of Charleston, 532 U.S. 67, 81(2001) (explaining that the Supreme Court in Chandler “did not simply accept the State’s invocation of a ‘special need,'” but rather “carried out a ‘close review’ of the scheme at issue before concluding that the need was not ‘special,’ as that term ha[d] been defined in [Supreme Court] cases” (quoting Chandler, 520 U.S. at 322)).
3. Program-by-Program Analysis
Linn State argues that the district court erred in considering its educational programs individually and instead should have applied a presumption that “all students … will be involved in safety-sensitive programs, classes, and activities.” Appellants’ Br. 37. It contends that the district court overlooked the unique nature of the college, where “[t]he majority of programs offered … require students to work with extraordinarily dangerous components” and to “perform tasks fraught with risk.” Id. at 6, 22. Linn State maintains that its relatively small student body should have been considered as a whole because the “entire school is peppered with dangerous instrumentalities” and because “the general purpose of the school is to prepare students for jobs which, for the most part, will involve some physical danger.” Id. at 28.
When assessing whether a suspicionless drug-testing policy is reasonable under the Fourth Amendment in the employment context, the Supreme Court has differentiated between job categories designated for testing. In Von Raab, for example, the Court considered separately the three categories of Customs Service positions that required drug tests as a condition of placement or employment and, as set forth above, upheld the drug testing of employees who sought transfer or promotion to positions that directly involved drug interdiction or that required the incumbent to carry firearms. 489 U.S. at 677. The third category of employees were required to handle classified material and included the following positions: accountants, accounting technicians, animal caretakers, attorneys, baggage clerks, co-op students, electric equipment repairers, mail clerks/assistants, and messengers. Id. at 677-78. Because it was “not evident that those occupying these positions [were] likely to gain access to sensitive information, and this apparent discrepancy raise[d] … the question whether the Service ha[d] defined this category of employees more broadly than [wa]s necessary to meet the purposes of the Commissioner’s directive,” the Court remanded the case for further proceedings. Id. at 678. Von Raab thus teaches that the special-needs analysis is not conducted at a high order of generality, but in a more specific and categorical manner. Id.; see also Scott, 717 F.3d at 873 (“[Skinner and its progeny] conducted the special-needs balancing test not at a high order of generality but in a fact-intensive manner that paid due consideration to the characteristics of a particular job category (e.g., the degree of risk that mistakes on the job pose to public safety), the important privacy interests at stake, and other context-specific concerns (e.g. evidence of a preexisting drug problem).”); Nat’l Fed’n of Fed. Emps. v. Vilsack, 681 F.3d 483, 498 (D.C. Cir. 2012) (“For [certain] categories of employees …, the chain of causation between misconduct and injury is considerably more attenuated.” (internal quotation marks and citation omitted)).
We conclude that the district court properly applied Von Raab when it conducted a program-by-program analysis. The category of students who may be drug tested as a condition of attending Linn State is composed only of those students who enroll in safety-sensitive educational programs. By requiring all incoming students to be drug tested, Linn State defined the category of students to be tested more broadly than was necessary to meet the valid special need of deterring drug use among students enrolled in safety-sensitive programs. Take, for example, students such as those enrolled in Linn State’s Design Drafting program. It was not evident that the program’s course work would require them to perform tasks fraught with risk, and the district court found that, based on Linn State’s evidence, the greatest danger the program presented was “that a student might accidentally trip and fall while navigating uneven ground during a site visit.” D. Ct. Order of Sept. 13, 2013, at 47. In the absence of evidence that the Design Drafting program involved a substantial safety concern, Linn State failed to justify drug testing all students enrolled in that program.
By applying a program-by-program approach, the district court also properly followed the panel decision that vacated the preliminary injunction. The panel indicated that “Linn State’s drug-testing policy may have some unconstitutional applications” and suggested that if the Students “wanted to challenge the drug-testing policy on the specific facts, focusing only on those current students whose studies did not involve a safety-sensitive program, they could have lodged an as-applied challenge.” Barrett, 705 F.3d at 324-25.
We find unpersuasive Linn State’s argument that the possibility of cross-enrollment renders its drug-testing policy reasonable under the Fourth Amendment. According to Linn State, students enrolled in non-safety-sensitive programs “can and do enroll in classes outside their own programs.” Appellant’s Br. 25. In response to the district court’s finding that the possibility of cross-enrollment was “abstract and unsubstantiated,” D. Ct. Order of Sept. 13, 2013, at 50, Linn State argues that it was not required to present evidence of cross-enrollment, stating that “surely the school is in a position to know whether cross-enrollment actually happens, without having to present student-specific occasions of it.” Appellants’ Br. 25. What the college is in a position to know, and what it can establish by way of evidence, are not one and the same. Linn State’s unsupported assertions regarding cross-enrollment are insufficient to justify the mandatory drug testing of all incoming students.
Finally, although Linn State argues that the district court erred in declining to consider whether students enrolled in the Heavy Equipment Operations program could be tested under the mandatory drug-testing policy, we find no clear error in the court’s factual determination that students enrolled in that program were not tested under the policy and were instead tested under a separate drug-testing policy that the Students have not challenged. In light of this finding, the district court did not err in declining to decide whether the policy could be applied constitutionally to those students.
III. Conclusion
We affirm the district court’s order permanently enjoining Linn State from drug testing students “who were not, are not, or will not be enrolled” in safety-sensitive programs. See D. Ct. Order of Sept. 13, 2013, at 61. …
