D.D.C.: Random drug testing of day care employees unreasonable

Random suspicionless government mandated drug testing of day care employees unreasonable because there is no compelling governmental interest. Ass’n of Indep. Sch. of Greater Wash. v. District of Columbia, 2018 U.S. Dist. LEXIS 70146 (D.D.C. April 20, 2018), reconsideration denied, 2018 U.S. Dist. LEXIS 115066 (D.D.C. July 11, 2018):

Turning to the Fourth Amendment count, the Court next considers whether Plaintiffs are entitled to judgment as a matter of law on this constitutional claim. As Defendants do not dispute, the District’s random, suspicionless testing constitutes a “search” and thus implicates the Fourth Amendment, which protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This is so even when, as here, the “search” is conducted by a private employer at the government’s behest. See Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 614-15, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989); Bluestein v. Skinner, 908 F.2d 451, 455 (9th Cir. 1990) (“[d]rug testing performed by private employers under compulsion of government regulations constitutes governmental action subject to constitutional restrictions”).

As this Court recently noted, random, suspicionless drug tests are “inherently suspect.” Lewis v. Gov’t of D.C., 282 F. Supp. 3d 169, 184 (D.D.C. 2017) (citing Knox Cty. Educ. Ass’n v. Knox Cty. Bd. of Educ., 158 F.3d 361, 373 (6th Cir. 1998)). When such searches “serve[ ] special government needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine” whether they are reasonable. See Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989); Lewis, 282 F. Supp. 3d at 184 (court must balance government need for search against individuals’ privacy interests). That analysis requires courts to “undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.” Chandler, 520 U.S. at 314. Here, as both sides agree that the policy falls outside the “normal need for law enforcement,” the Court must assess the private and government interests at stake and then determine the balance.

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Having assessed the competing privacy interests and government interests at stake, the Court must now determine which way the scale tips. As to the former, it concludes that employees of child-development facilities have a significant expectation of privacy. As to the latter, it finds that the District’s interest does not rise to the level of immediacy or concreteness needed to justify the random, suspicionless testing of nursery-school teachers. While it does not doubt that Defendants’ policy is a sincere attempt to protect infants and toddlers cared for in the District, the Court’s holding reflects the principle that preventing the invasion of personal-privacy rights is “among the highest responsibilities of the federal judiciary.” Bangert v. Hodel, 705 F. Supp. 643, 655 (D.D.C. 1989). Charged with this duty, the Court determines that nursery-school teachers such as Plaintiffs cannot be subjected to random, suspicionless searches as a condition of their employment. The Court therefore holds as a matter of law that OSSE’s testing requirement “does not fit within the closely guarded category of constitutionally permissible suspicionless searches,” and it will thus grant Plaintiffs’ Motion. Chandler, 520 U.S. at 309.

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