Despite a presumption of unconstitutionality, suspicionless searches are permissible in cases where they serve powerful and unique public needs, like here, where a school board required all applicants for substitute teacher positions to pass a drug test, ruled the Eleventh Circuit, in an issue of first impression. Finding that teachers have diminished privacy interests in the school setting, that the urine test was minimally invasive, and that the government has a compelling interest to protect students by ensuring teachers are not impaired and by keeping drug users out of schools, the court held that the plaintiff had not shown a substantial likelihood of success on her Fourth Amendment claim and affirmed the denial of a preliminary injunction (Friedenberg v. School Board of Palm Beach County, December 20, 2018, Marcus, S.).
The plaintiff applied for several positions—tutor, substitute teacher, and early childhood aide—in the Palm Beach County School District. Among other things, the application required that she agree to be tested for drugs. In February 2017, she received a conditional offer to be a substitute teacher but was told she would need to be fingerprinted for a background check and would need to pass a drug test to be hired. She was fingerprinted but refused to submit to drug testing.
Drug testing policy. The school district’s “Drug and Alcohol-Free Workplace” policy requires drug testing of all job applicants, performed in conformity with Florida’s Administrative Code, 59A-24.005(3). The relevant provision states: “Pre-employment screening will be required of all applicants before employment with the District. Any applicant who tests positive in the pre-employment screening for a drug as defined in this Policy will not be hired and is not eligible to re-apply for employment with the District for one year following the confirmed positive test.”
Testing procedure and reports. For a drug test, the applicant provides a urine sample in the privacy of a bathroom stall while staff stay in the room, but outside the stall. Before collection, applicants must disclose all medications they take. They are asked to wash their hands, empty pockets, remove outer clothing, and put personal belongings aside. If staff suspect tampering, a supervisor may approve a second sample under direct observation by a person of the same gender. Select information from the test is reported to the school board, including positive results and the identified substances, with only five individuals in the risk management department receiving the information. Results are held in a “confidential electronic medical folder.” The hiring school or department is only informed that an applicant didn’t pass a medical exam.
2016 Tests. Testing under the policy revealed relatively few results. In 2016, only 40 individuals were disqualified of 4,965 screenings (33 had positive tests and 7 refused to take it). Of these, 27 were positive for marijuana, three for anti-anxiety drugs, two for cocaine, and one for opiates. Of the six disqualified substitute teacher applicants, one refused to be tested, four were positive for marijuana, and one for cocaine. The record didn’t show how many substitute teacher applicants (or how many for instructional jobs) were tested in 2016, nor was there data on how many would-be applicants for instructional jobs were deterred by the policy.
Motion for injunction. Filing a putative class action, the plaintiff claimed the suspicionless drug testing requirement violated the Fourth Amendment. She moved for preliminary injunctive relief, arguing she could establish a substantial likelihood of success on the merits. Denying the motion, the court held that the school board had a special need to test substitute teacher applicants. It explained even “a momentary lapse of attention . . . could be the difference between life and death,” and the special responsibility for “the care of society’s most vulnerable members” was distinct and notable.
The district court then found that the balance of interests strongly favored the drug testing policy. The plaintiff’s privacy interests were implicated but urinalysis was “relatively noninvasive” and the testing regime “not unduly intrusive,” so she had not established a substantial likelihood of success. This interlocutory appeal followed.
Exception to individualized suspicion. Affirming, the Eleventh Circuit reviewed applicable law, noting the default rule is that, to be reasonable, a search must be based on “individualized suspicion of wrongdoing,” but there is a narrow class of exceptions, including where a search “serves special governmental needs.” When a special need is claimed, as here, the court must perform a context-specific inquiry into competing private and public interests.
Though neither the Supreme Court nor the Eleventh Circuit has faced the question of whether there was a sufficiently compelling need to justify the invasion of privacy in suspicionless drug testing of public school teachers, the appeals court reviewed other contexts where the High Court considered the constitutionality of suspicionless drug-testing regimes, finding special needs compelling enough to permit such testing of public school students in extracurricular activities and testing of government employees whose work implicates public safety. In those cases, noted the appeals court the Supreme Court has stressed that, for Fourth Amendment purposes, public schools are unique, given the responsibility for the health and safety of children.
Unique context justified testing regime. Against that backdrop, and on the record and unique context here, the Eleventh Circuit was satisfied that the School Board’s testing regime as applied to substitute teacher applicants is a reasonable one, and the district court committed no abuse of discretion in denying a preliminary injunction. In so ruling, the appeals court found that a special need for departing from probable cause requirements was evident given the danger that would be posed by drug-addicted teachers in the classroom. “[S]chools have a singular custodial and tutelary responsibility for our nation’s most precious resource – our children,” stated the court, so teachers are in a sufficiently safety-sensitive position so that guaranteeing a safe and effective learning environment presents a compelling need justifying suspicionless drug testing.
Ensuring first responders are unimpaired. While the court could not predict when or where a substitute teacher would face a situation in which a child’s health or safety is at stake, it stated with confidence that such situations will occur. To the court, it was an obvious precaution to ensure safety by requiring that the guardian in the closest contact with student be able to respond promptly and without any impairment. And the suspicionless testing of substitute teacher applicants addressed the risks involved, providing a layer of protection to ensure that the front line of responders in classrooms are alert and capable.
Keeping drug users out of schools. The court further concluded that the state has an independent interest in keeping drug users, including teachers, out of schools, given that it stands “in loco parentis,” acting as the temporary guardian of the students. And while there were differences between substitutes and permanent teachers, their basic obligations are the same.
Special need outweighs plaintiff’s privacy. Having found that a special need for suspicionless searches was established, the court had to weigh the competing private and government interests, considering: the strength of the plaintiff’s expectation of privacy measured in the light of her profession or status; the nature and extent of the intrusion on her privacy; the nature of the government’s special need; and the testing regime’s efficacy at achieving the government’s aims.
Given the unique setting here, teachers have a diminished privacy interest, and though a urine drug test requires an individual “to perform an excretory function traditionally shielded by great privacy,” the invasion was minimal here because the collection took place in a stall with a monitor listening for abnormal sounds to detect tampering. Basically, it “emulates situations generally encountered in a public restroom.”
Against this was weighed the government’s interest in students’ health and safety discussed above, which the court found to be reasonably and effectively addressed through the drug tests. The court noted that once hired, substitute teachers are largely unobserved, so a drug tests on the front end had far more deterrent value. In the end, the appeals court agreed with the lower court that the plaintiff had not established a substantial likelihood of success on her Fourth Amendment claim.
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