CA11: Drug testing of substitute teacher applicants was reasonable

Drug testing of substitute teacher applicants was reasonable. School employment is different and protection of the environment of children is paramount. Friedenberg v. School Board of Palm Beach County, 2018 U.S. App. LEXIS 35905 (11th Cir. Dec. 20, 2018):

In making this calculus we are satisfied that the intrusion on privacy has been reasonably minimized by the School District and that the reasons offered for the search are compelling. Again, it comes down to the fact that schools are different. Reasonable expectations of privacy depend on circumstance, and the government is justified in demanding more from those to whom our country’s children are entrusted.


The first factor we consider is the nature of the privacy interest at issue. Vernonia, 515 U.S. at 654. “In the case of searches conducted by a public employer, we must balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.” Ortega, 480 U.S. at 719-20. The expectation of privacy is real and not insubstantial, but expectations will differ as context changes, and the public schools are unique. Individuals who choose careers working with children, particularly teachers in our public schools, enter a heavily regulated field with diminished privacy expectations. In fact, the Supreme Court has expressly recognized that “in an industry that is regulated pervasively to ensure safety” there are lessened expectations of privacy. Skinner, 489 U.S. at 627.

As the Court first explained in T.L.O. and reiterated in Vernonia and Earls, expectations of and interests in privacy are diminished by the unique context of schools. T.L.O., 469 U.S. at 340 (“[T]he school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.”); Vernonia, 515 U.S. at 656 (“Fourth Amendment rights … are different in public schools than elsewhere ….”); see also Earls, 536 U.S. at 830-32. These cases all addressed searches of students, not teachers, but the school environment is the same. Just as “the preservation of order and a proper educational environment requires close supervision of schoolchildren,” T.L.O., 469 U.S. at 339, the same needs require closer supervision of some adults than might be permitted in other areas of government employment not presenting the same safety concerns.

The field of public education is pervasively regulated in order to protect the students and to promote learning. … And substitute teachers, in particular, precisely on account of their temporary role, may expect that they will be subject to closer scrutiny.

Bodily privacy is a different matter, but, where employees have safety-related reasons to inquire into their employees’ physical wellbeing, the Court has upheld intrusions on even this. The Court has “not suggest[ed] … that the interest in bodily security enjoyed by those employed in a regulated industry must always be considered minimal.” Skinner, 489 U.S. at 628. In Skinner, privacy interests were diminished because railroad regulation had in part focused on employee bodily fitness – for example by requiring physical examinations for certain employees. Id. The Customs employees in Von Raab also had to “expect effective inquiry into their fitness and probity.” 489 U.S. at 672; see also Vernonia, 515 U.S. at 657 (finding diminished expectations of bodily privacy for student athletes because they had to submit to physical exams). Here the School Board has provided a similarly safety-related reason for invading teachers’ bodily privacy — it needs to know whether they use drugs before placing them in front of a classroom.

Teachers plainly step into a unique setting heavily regulated by the state on account of its profound social importance to the well-being of the nation. Given the unique role that teachers, including substitutes, play in this environment, we cannot say that they have the same privacy interests as adults in more typical contexts or even other government employees in similar contexts (i.e. janitors or some administrators). See AFSCME, 717 F.3d at 882 (suggesting that the balancing test must be conducted in a position-specific way). Thus, it does not go too far to say that teachers have a diminished privacy interest in this unique setting.


“Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of.” Vernonia, 515 U.S. at 658. Again, a urine drug test implicates privacy interests. See, e.g., Skinner, 489 U.S. at 617. The privacy interests are different in character than the interests implicated by a search of one’s home, one’s person, or one’s personal belongings. Though urine drug testing requires those tested “to perform an excretory function traditionally shielded by great privacy,” the invasiveness of the test is reduced measurably when the procedures employed “endeavor to reduce the intrusiveness of the collection process.” Id. at 626. The privacy invasion presented by urine collection may be minimal where, for example, the testing site emulates situations generally encountered in a public restroom. See Vernonia, 515 U.S. at 658.

The testing regime employed by the Palm Beach School District is similar to those the Supreme Court has deemed “minimally intrusive.” Earls, 536 U.S. at 834. …

. . .

Only two minor components of the School District’s testing regime implicate intrusions beyond what the Supreme Court has deemed to be minimally intrusive. First, the School District’s policy allows for searches of a drug-tested individual’s wallet for evidence of tampering supplies, if the applicant chooses to keep the wallet on his person during the collection. Fla. Admin Code. R. 59A-24.005(3)(c)(5). This additional step appears to us to be narrowly pointed at preventing the use of tampering supplies, and a search of the wallet may be avoided by placing the wallet with the rest of one’s belongings outside the stall. Second, the disclosure of medications before [*56] testing, as is required by the testing regime, was a consideration that raised “some cause for concern.” Vernonia, 515 U.S. at 659. Still, where there was every indication that the information about the lawful use of medication would be kept confidential, as there is in this case, the pre-test disclosure was “not view[ed] … was a significant invasion of privacy.” Skinner, 489 U.S. at 626 n.7.

Overall, the drug-testing program employed by the School District is the type of intrusion the Supreme Court has found minimally invasive. The procedures for collection are fully consonant with those that have been approved in the past. In the face of these procedures, “the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.” Vernonia, 515 U.S. at 658. We are, therefore, satisfied that the privacy invasion caused by the School District’s testing regime is a minimal one.

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