S.D.W.Va.: Random drug testing of teachers violates Fourth Amendment

School board policy of drug testing school teachers could not be justified under the special needs exception, and teachers do not have a reduced expectation of privacy. American Federation of Teachers—West Virginia AFL-CIO v. Kanawha County Bd. of Educ., 592 F. Supp. 2d 883 (S.D. W.Va. January 8, 2009) (on court’s website):

The Kanawha County School Board adopted a revised drug testing policy mandating the random testing of teachers and other categories of public school employees. The teachers’ unions have joined forces in this lawsuit seeking to enjoin the implementation of that policy on constitutional and privacy grounds. The questions before the court are whether the random drug testing policy adopted by the Board as a state actor violates the Fourth Amendment to the United States Constitution, Article III, § 6 of the West Virginia Constitution, and the right to privacy as it is recognized in this state. The evidence does not demonstrate either that these employees have a reduced expectation of privacy by virtue of their employment in a public school or that there is a special governmental need to guard against a concrete risk of great harm. I therefore find that because the safety justification offered by the Board does not outweigh the privacy interests of the school employees, the Board may not abandon the Fourth Amendment’s protection against suspicionless searches. Consequently, the plaintiffs are likely to succeed on the merits of their claims and I preliminarily enjoin the enforcement of the random drug testing policy.

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To determine whether a special need exists that justifies a suspicionless search, a court must ask whether there is a safety concern that is substantial enough to override the individual’s privacy interest and to suppress the Fourth Amendment’s requirement of individualized suspicion. See Chandler, 520 U.S. at 318, 323; Von Raab, 489 U.S. at 668-671, 674; Skinner, 489 U.S. at 608-34. The requisite weight of the safety interest is apparent from an examination of the Supreme Court precedents on point: Skinner v. Railway Labor Executives’ Association, National Treasury Employees Union v. Von Raab, Chandler v. Miller, Vernonia School District 47J v. Acton, and Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls.

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Suspicionless drug testing in all of those cases was justified by varying types of special needs, but the requirement that there be a safety concern of sufficient magnitude to outweigh the particular privacy interests involved is a common thread that ties them together and which guides my determination in this case. The Supreme Court has found thus far sufficiently important special needs to outweigh an individual’s privacy interests when faced with major safety concerns such as the great harm to people and property that could result from a railroad accident, the threat to national security posed by the failed interdiction of illegal drugs smuggled across our borders, and the risk to safety created by the potential use of deadly force by a drug-addled Customs employee equipped with a firearm. The Supreme Court has also found that a lesser safety concern can qualify as a special need, but only when the persons to be tested possess a greatly diminished privacy interest. See Earls, 536 U.S. at 830-32, 836-37; Vernonia, 515 U.S. at 654-56, 661-62. Viewed as a whole, these precedents plainly reveal that the special needs exception to a suspicion-based search was intended to be a very narrow one and to apply only when the government is faced with a safety concern of sufficiently great magnitude to outweigh the privacy interests of the group to be searched.

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On the record before me, I FIND that the proposed drug testing collection process is not an overly intrusive drug testing procedure. See Chandler, 520 U.S. at 326 (Rehnquist, J., dissenting); Von Raab, 489 U.S. at 672 n.2. The vast majority of the collections will not be monitored; only approximately ten out of every 5000 or 6000 collection attempts will be monitored. The Medical Review Officer is charged with keeping any medical information disclosed to him or her private from all third parties, including the employer. Testing is only performed for the presence of amphetamines, methadone, phencyclidine, cocaine, opiates, marijuana (THC), barbiturates, and benzodiazepines.

Secondly, I must consider whether any of these employees have a reduced privacy interest. Public employees may have a reduced expectation of privacy by virtue of their employment if that employment carries with it safety concerns for which the employees are heavily regulated. See Skinner, 489 U.S. 626-27; …

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Finally, I FIND no evidence that the teachers or other school employees have a reduced privacy interest by virtue of their employment in the public school system that is comparable to the students in Vernonia and Earls. Teachers, administrative assistants, cabinetmakers, coaches, handymen, plumbers and the like are professional adults over whom the school as employer (and not as parent) does not maintain a comparable degree of control. See Schmidt, supra, 34 Colum. J. L. & Soc. Probs. at 267-68. The state simply cannot exercise a similar degree of control over adult employees as it does over students. See Earls, 536 U.S. at 831 (“Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults.”).