The War on Drugs at School vs. Teachers’ Expectation of Privacy
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair
Over the last two months sixteen Houston Independent School District employees, including 11 teachers, have been arrested on drug charges—mostly involving marijuana or prescription drugs found in parked vehicles on school campuses. Two of the employees were arrested twice. Most of the arrests came after anonymous tips, prompting HISD police to use drug-sniffing dogs to hit on narcotics in the vehicles.
“This is a matter of great concern to us and we wanted to make sure that our community understood that we will take whatever action is necessary to make sure our schools are safe,” HISD Superintendent Abelardo Saavedra said in response to the sudden rash of arrests.
Besides pressing for the immediate termination of the arrested employees, Saavedra informed the Houston Chronicle that the school district is contemplating a plan to use drug sniffing dogs to search for narcotics in employee parking lots in every HISD school.
Current HISD policy, according to the Chronicle, only permits random drug tests for bus drivers, police officers, and other security personnel. While the executive director of the Congress of Houston Teachers said he was a little concerned that the drug-dog searches might violate civil liberties, Chuck Robinson minimized his concern by adding that “we have to maintain public confidence and trust in our employees.”
The Chronicle reported that Kevin Quinn, a regional director for the National Association of School Resource Officers, did not see a legal problem with randomly searching employee parking lots. “Basically, all they’re doing is sniffing the public air around the car, so there is no warrant needed,” Quinn said.
Will the searches by drug-sniffing dogs create a constitutional problem?
Ten years ago the Fifth Circuit Court of Appeals entered the constitutional arena of teacher drug testing involving two Louisiana school districts. See: United Teachers v. Orleans Parish Sch. Bd., 142 F.3d 853 (5th Cir. 1998). In that case teachers and other employees challenged drug testing rules of two Louisiana school boards that required employees injured in the course of employment to submit a urine specimen. The teachers/employees said the rules violated the Fourth Amendment of the United States Constitution and provisions of the state constitution. Id., at 854.
The Fifth Circuit began its analysis of this Fourth Amendment issue by pointing out that the challenged drug testing rules were part of a larger regulatory scheme under Louisiana law that permitted state employee drug testing as a condition of continued employment. Id. Further, since Louisiana law prohibited workers’ compensation for any job-related injury caused by substance abuse intoxication, an employer enjoyed the right to secure drug/alcohol testing immediately after a job-related accident/injury. Id., at 855.
Pursuant to these statutory authorities, the Jefferson Parish School System and the Orleans Parish School Board enacted rules that, as a condition of continued employment, all school employees would not only be subject to pre-employment drug screening but post-job-related-accident drug testing involving workers’ compensation benefits. Id.
Finding the drug-testing rules constitutionally intrusive, the Fifth Circuit held:
”Several relevant principles are settled. When a state orders the collection and testing of urine, it conducts a search. Ordinarily there must be ‘individualized suspicion of wrongdoing’ to meet the Fourth Amendment’s prohibition of unreasonable searches. There are exceptions based on ‘special needs, beyond the normal need for law enforcement.’
”The two school boards require testing of all employees injured in the course of employment without regard to the circumstances, even without any suggestion that a triggering injury was caused by any misstep of the employee to be tested. Our question is whether the school boards can fit their testing rules within a special needs exception.
“The Supreme Court recently instructed that ‘when such special needs — concerns other than crime detection — are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.’ Directly to the point, ‘in limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.’
”The interest of the state asserted here to justify its drug testing is as well defined by what it is not as well as what it is. We agree that evidence of drug use on the job by teachers could identify a strong state interest. Teachers are entrusted with this nation’s most precious asset — its children. We need not lower the privacy expectations of teachers to that of students to observe that the role model function of teachers, coaches, and others to whom we give this responsibility adds heavy weight to the state interest side of the ledger in justifying random testing without individualized suspicion. How that balance on a given record might be struck is not before us. Despite hints of the school boards, the testing here does not respond to any identified problem of drug use by teachers or their teachers’ aids or clerical workers. The school district offered evidence that during the seven months these tests were in place, four teachers or substitute teachers tested positive for drugs. This datum, while troubling, is in this undeveloped form an uncertain base for extrapolating drug use. If any of these three classes of workers were the object of concern, workers chosen for testing are simultaneously underinclusive and overinclusive, remarkably so. The bite is underinclusive because only persons injured in the course of employment are to be tested. It is overinclusive because all persons injured are tested, not just persons injured under circumstances suggesting their fault. Stated another way, there is an insufficient nexus between suffering an injury at work and drug impairment. The school boards have not shown that their rules are responsive to an identified problem in drug use by teachers, teachers’ aids, or clerical workers. Regardless, their general interest in a drug-free school environment is not served by these rules.
”That the triggering event for testing is any injury-producing incident is no quirk or inept rulemaking. To the contrary, the rules appear to do precisely what they were intended to do: support the state’s generalized interest in not paying compensation claims of employees whose injury was caused by drug use. Under the Louisiana workers’ compensation scheme intoxication is a defense to a claim. A claimant refusing ‘drug and alcohol testing’ faces a presumption that must be overcome to be awarded benefits. The statute does not insist upon the testing of urine. Rather, the parish boards do so and reinforce the shifting of burdens by suspending any teacher who does not submit to testing.” Id., at 856-57 [internal citations omitted].
In siding with the teachers and employees, the Fifth Circuit found it decisive that the school boards had failed to offer any “legal justification” for demanding drug testing absent individualized suspicion of wrongdoing. The court stressed that “special needs” are just that, special – and it “cannot be the case that a state’s preference for means of detection is enough to waive off the protections of privacy afforded by insisting upon individualized suspicion. It is true that the principles we apply are not absolute in their restraint of government, but it is equally true that they do not kneel to the convenience of government, or allow their teaching to be so lightly slipped past. Surely then it is self-evident that we cannot rest upon the rhetoric of the drug wars. As destructive as drugs are and as precious are the charges of our teachers, special needs must rest on demonstrated realities. Failure to do so leaves the effort to justify this testing as responsive to drugs in public schools as a ‘kind of immolation of privacy and human dignity in symbolic opposition to drug use’.” Id., at 858 [internal citations omitted].
Shortly after the Fifth Circuit rendered United Teachers it once again entered into the constitutional fray of employee drug testing in yet another Louisiana school district case. See: Aubrey v. School Board of Lafayette Parish, 148 F.3d 559 (5th Cir. 1998).
That case involved a custodian employed by the Lafayette Parish School Board in an elementary school. Id., at 560. The custodian challenged provisions of the Louisiana Drug Testing Act that subjected him to urinalysis as a condition of employment. Id., at 561. The job duties of the custodian included cleaning the fourth and fifth grade bathrooms; mowing the grounds adjacent to the school building; making minor repairs to buildings, furniture, equipment, and light pilot lights; and maintaining HVAC equipment, cleaning and replacing light fixtures, and trimming trees. These duties kept him in the constant presence of young students. Id.
Under the authority of the Louisiana Drug Testing Act, the Lafayette school board in December 1992 adopted an Employee Drug Testing Policy that authorized drug testing for “safety sensitive” employees. The custodian was notified that he was a “safety sensitive” employee; and in September 1994 he was informed that he had been randomly selected for drug testing, along with fourteen other employees. The custodian tested positive for marijuana. He filed an application for preliminary injunction in federal court to keep the school board from firing him. His application was denied and he appealed to the Fifth Circuit. Id.
The Fifth Circuit made the following preliminary observation:
“A program which compels government employees to submit to urinalysis is a search within the meaning of the fourth amendment because such tests invade reasonable expectations of privacy. Such a drug test therefore must meet the reasonableness requirement. The amendment does not proscribe all searches and seizures, but reasonableness depends on the nature of the search and seizure. In a situation in which the fourth amendment intrusion serves a special government need beyond that of law enforcement, a balancing test is required. The interest of the government must be weighed against the privacy interest of the employee. The analysis of the privacy interest should include not only the desire to be free from mandatory testing, but also the intrusiveness of the particular program at issue.” Id., at 562 [internal citations omitted].
The Fifth Circuit then made it clear that its findings in Aubrey were controlled by two Supreme Court precedents which articulated the constitutional premise that “special needs” may outweigh the privacy interests of individuals. Id. See also: Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989); National Treasury Employees v. Von Raab, 489 U.S. 685 (1989).
Having established the constitutional authority for its conclusions, the appeals court turned its attention to the Lafayette Parish school board’s drug testing policy:
”We first turn to the interests articulated by the Board. The Board contends that the urinalysis was obtained to maintain the safe and efficient operation of its schools, ensure the physical safety of the children of Lafayette Parish, and decrease the potential spread of drug use among its students. In pursuit of its objectives, the Board created a list of employees who were considered safety sensitive, including custodial employees such as Aubrey. Aubrey’s duties, outlined above, obviously are important to the efficient operation of the school. The tasks assigned to him are important. Despite Aubrey’s efforts to minimize the importance of his duties, we are persuaded that the failure of the Board to use significant caution in the selection and supervision of personnel performing such duties in a school that serves nearly 900 students, ranging in age from three to eleven, could place the children at significant risk.
”The Board also asserts that it ‘has a compelling interest and commitment to eliminate illegal and unauthorized drug use (including the unauthorized use of alcohol), drug users, drug activities, and drug effects from all of its workplaces.’ The Board has not produced any summary judgment evidence to demonstrate a problem of drug abuse or use in its schools, and although such a showing would be of persuasive value, it is not mandatory and such a requirement would present ‘an unduly narrow view of the context in which the [Board’s] testing program was implemented.’ As in Von Raab, ‘petitioners do not dispute, nor can there be doubt, that drug abuse is one of the most serious problems confronting our society today.’
Unfortunately, neither our workplaces nor our elementary schools are immune from the drug scourge causing such problems in our land. The Board’s program is designed to prevent drug users from obtaining a safety sensitive position and to aid in detecting those employees in such positions who use drugs so that they may undergo treatment as a prerequisite to keeping their jobs. We find the Board’s interests to be substantial indeed.” Id., at 563-64 [internal citations omitted].
The Fifth Circuit then weighed the school board’s valid and compelling interests in the drug testing policy against the custodian’s right to be free of governmental intrusion and his expectation of privacy in the work place. The court overwhelming found in favor of the school board by citing the following why the custodian’s privacy expectations gave way to the school board’s compelling interests:
- Operational realities of the workplace may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed unreasonable in other contexts.
- The custodian had been provided notice that he was a safety-sensitive employee subject to random drug testing.
- The custodian’s position was safety sensitive “because of the handling of potentially dangerous machinery and hazardous substances in an environment including a large number of children ranging in age from three to eleven.”
- The custodian should have reasonably expected the board’s right to inquire into his fitness to operate and use these dangerous equipments and material in a school setting.
- The custodian’s position has a possible impact on the physical safety of students in their educational environment
- The presence of someone using drugs increases the likelihood that children will have an open avenue to obtain drugs.
- The intrusiveness of the search (drug testing) was minimal.
- There was no evidence that anyone else observed, listened or otherwise monitored the collection of the urine sample.
- The custodian was not required to disclose any personal medical information, nor was the urine sample used for any other purpose than detecting the presence of drugs.
- Finally, despite testing positive for marijuana use, the school board did not fire the custodian but rather required that he submit to a substance abuse program. Id., at 564.
The Fifth Circuit concluded its holding by distinguishing Aubrey from United Teachers by pointing out that the school boards in United Teachers had failed to articulate a special need for the testing in that case while the school board in Aubrey had stated a special need—the need to protect the children. Id.
The constitutional issue, therefore, depends upon the ability of a school board to demonstrate a “special need” for any given search. For example, the Lockney Independent School District in Lubbock, Texas implemented a ‘suspicionless” mandatory drug testing program for student athletes. A federal district court threw out the program because the school district failed to demonstrate any “special need” for it. See: Tannahill v. Lockney Independent School District, 133 F.Supp.2d 919 (U.S.-Lubbock 2001).
But in another school case the Sixth Circuit Court of Appeals found that the Knoxville, Tennessee school system had articulated a special need under its “Drug-Free Work Place Substance Abuse Policy” to justify “suspicionless” drug testing of its school teachers and employees. See: Knox County Educ. Ass’n v. Knox County Bd. Of Educ., 158 F.3d 361 (6th Cir. 1998).
As long as the Houston Independent School District follows the principles set out by the courts above, it will not have a constitutional problem establishing its school children as a special resource and its compelling interest to protect them from either potential exposure or access to drugs brought on campus by teachers or other employees. While it may be questionable under United Teachers and Aubrey whether HISD could demonstrate a “special need” for a policy that would permit suspicionless searches of teachers and employees, or investigative drug testing, the school district could easily demonstrate a “special need” to search school parking lots with drug-sniffing dogs, a far less intrusive search. A teacher or employee’s expectation of privacy in their vehicle on a school campus parking lot would not be sufficient to outweigh the compelling interest of HISD has in protecting students from drugs, either through exposure or access.
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair