CA11: Florida state employee drug testing case: injunction overbroad, but state can’t win outright; remanded

In the Florida state employees drug testing case, both sides lose on appeal. The case is remanded for more factfinding to narrow the injunction which included firearms-carrying employees, too. The state sought summary judgment that the testing was constitutional, and it loses because suspicionless drug testing of the rest is unconstitutional. The problem is the lack of a good record. American Federation of State, County and Municipal Employees Council 79 v. Scott, 717 F.3d 851 (11th Cir. 2013):

The State does not ask us merely to vacate and remand; boldly, it urges us to reverse the denial of its summary judgment motion and to direct the district court to grant judgment in its favor. The State argues that there is no need for the district court to conduct the very job-category-by-category balancing that the Supreme Court’s case law commands. Instead, the State offers several reasons that, it claims, can justify suspicionless drug testing of all 85,000 government employees regardless of the nature of their specific job functions. Based on these generic reasons, the State asks us to approve a testing policy of unprecedented scope. We are unpersuaded.

The State’s arguments, which are stated so abstractly, cannot satisfy the special-needs balancing test laid out in Skinner and its progeny. Those cases 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). The State’s arguments have not convinced us that Skinner and its progeny are inapplicable, nor can they obviate the need for job-category-by-category scrutiny. Just as we know that some subset of state employees almost certainly can be tested due to specific, important safety concerns, we know that there are some employees who almost certainly cannot be tested without individualized suspicion. Again, the problem is that the factual record is almost barren, and the balancing calculus required by Supreme Court case law cannot be exercised in a vacuum.