NC: Drug testing of teachers violates state constitution

N.C. school district’s random drug and alcohol testing of teachers was unconstitutional. Jones v. Graham County Bd. of Educ., 197 N.C. App. 279, 677 S.E.2d 171 (2009).

The opinion starts with Brandeis

“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”fn1

fn1. Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 687, 109 S. Ct. 1384, 103 L. Ed. 2d 685, 716 (1989) (Scalia, J., dissenting) (quoting Olmstead v. United States, 277 U.S. 438, 479, 48 S. Ct. 564, 72 L. Ed. 944, 957 (1928) (Brandeis, J., dissenting)).

and goes downhill from there that the policy is a general search in violation of the state constitution:

We next consider whether Board employees have a reduced expectation of privacy by virtue of their employment in a public school system. Public employees may have reduced expectations of privacy if their employment carries with it safety concerns for which the employees are heavily regulated. Skinner, 489 U.S. at 627, 103 L. Ed. 2d at 666. By way of illustration, chemical weapons plant employees are heavily regulated for safety. Thomson v. Marsh, 884 F.2d 113 (4th Cir. 1989) (per curiam). There is no evidence in the record before us, however, that any of the Board’s employees are regulated for safety. We question whether the Board could produce such evidence. The Board errantly relies on the premise that “Fourth Amendment rights … are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.” Vernonia, 515 U.S. at 656, 132 L. Ed. 2d at 576. The Board, however, fails to account for the explicit teaching of the Supreme Court that because “the nature of [the schools’ power over schoolchildren] is custodial and tutelary, [the schools’ power] permit[s] a degree of supervision and control [over schoolchildren] that could not be exercised over free adults.” Id. at 655, 132 L. Ed. 2d at 576. We are unable to conclude from this record that any of the Board’s employees have a reduced expectation of privacy by virtue of their employment in a public school system.

Finally, the record in the case at bar is wholly devoid of any evidence that the Board’s prior policy was in any way insufficient to satisfy the Board’s stated needs. The Board acknowledges that there is no evidence in the record of any drug problem among its employees. There is also a complete want of evidence that any student or employee has ever been harmed because of the presence of “a detectable amount of an illegal drug or of alcohol” in an employee’s body. We agree that the Board need not wait for a student or employee to be harmed before implementing a preventative policy. However, the evidence completely fails to establish the existence of a “concrete” problem which the policy is designed to prevent. The need to promote an anti-drug message is “symbolic, not ‘special,’ as that term draws meaning from [the decisions of the United States Supreme Court].” Chandler, 520 U.S. at 322, 137 L. Ed. 2d at 528.

Considering and balancing all the circumstances, we conclude that the employees’ acknowledged privacy interests outweigh the Board’s interest in conducting random, suspicionless testing. See T.L.O., 469 U.S. at 337, 83 L. Ed. 2d at 732 (“[E]ven a limited search of the person is a substantial invasion of privacy.”) (citing Terry v. Ohio, 392 U.S. 1, 24-25, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Accordingly, we hold that the policy violates Article I, Section 20’s guarantee against unreasonable searches.