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DRUG TESTING IN THE SCHOOLS Presented by Patrice M. Horstman HUFFORD, HORSTMAN, MONGINI, PARNELL & TUCKER, P.C. INTRODUCTION Both state and the federal governments have enacted numerous legislation in an effort to keep our schools drug free. Local, State and federal laws prohibit the unlawful possession, use or distribution of illicit drugs and alcohol. Penalties for illegal drug-related activities are often increased when these activities occur in a drug-free school zone. Additionally, the Drug Free Workplace Act of 1988 (41 U.S.C. §701 et seq.) imposes strict requirements on recipients of federal grant monies. Further, the Safe and Drug Free Schools and Communities Act was amended and reauthorized as part of the No Child Left Behind Act’s reauthorization of the Elementary and Secondary Education Act of 1965. The Act’s purpose is to support programs that: (1) prevent violence in and around schools; (2) prevent the illegal use of alcohol, tobacco and drugs; (3) involve parents and communities; and (4) are coordinated with related Federal, State, school and community efforts and resources to foster a safe and drug-free learning environment that promotes student academic achievement. Although there is evidence that drug use has declined over the past few years, drug and alcohol use and abuse in the schools is still sufficiently high to present a serious problem. Therefore, school districts continue to search for effective methods that will act as a deterrent the use of drugs and alcohol, such as drug and alcohol testing.

I.

DRUG TESTING OF SCHOOL DISTRICT EMPLOYEES

It is well-settled that drug testing of public employees is considered a “search” and is therefore subject to the Fourth Amendment of the United States Constitution. Public employers must also abide by similar state constitutional guarantees which may provide even greater protection to individuals than that provided by the Fourth Amendment. The Fourth Amendment safeguards the privacy of individuals against arbitrary and unwarranted governmental intrusions by providing that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.” However, the Fourth Amendment does not proscribe all searches and seizures, only those that are “unreasonable.”

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The reasonableness of a search depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself. See United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (citing New Jersey v. T.L.O., 469 U.S. 325 (1985). Testing based on “reasonable suspicion” As a general rule, in order to be “reasonable”, a search must be undertaken pursuant to a warrant issued upon a showing of probable cause. In other words, a valid search must ordinarily be based on an individualized suspicion of wrongdoing. For example, where a supervisor, who has received the appropriate training, has identified a pattern of changes in behavior, physical appearance and/or job performance that lead a prudent person to conclude that a particular employee is unable to satisfactorily perform his or her job duties due to drug or alcohol impairment. Such inability to perform may include, but not be limited to, decreases in the quality or quantity of the employee’s productivity, judgment, reasoning, concentration and psychomotor control, and marked changes in behavior such as slurred speech or difficulty in maintaining balance. Accidents, deviations from safe working practices and erratic conduct indicative of impairment are also examples of “reasonable suspicion” situations. A reasonable suspicion may also be based on a report of drug or alcohol use by an employee while at work, provided by a reliable source. In those cases, a directive for drug testing of the employee would likely be upheld as “reasonable.” “Suspicionless” Testing Courts have recognized an exception to the general rule of testing based on “reasonable suspicion” in certain limited circumstances. The “special needs” exception permits drug testing without individualized suspicion, where there is a showing of a special need, beyond the normal need for law enforcement, that make the warrant and probable cause requirement impracticable. Where a public employer alleges “special needs” to justify a suspicionless search, courts must undertake a context-specific inquiry, examining closely the competing private and public interests involved. At what point or in which circumstances does a purported governmental need become a “special need”? The current framework for special needs testing was established by the U.S. Supreme Court in Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989) and National Treasury Employees v. Von Raab, 489 U.S. 656 (1989). In these cases, the Supreme Court held: 1. The government can conduct drug testing absent individualized suspicion when it involves a matter of public safety; 2 226204.1 8/23/2013


2. Public employees may have a reduced expectation of privacy if their employment carries with it safety concerns for which the employees are heavily regulated. Jobs have historically been considered “safety-sensitive” if they involve work that may pose a great danger to the public, such as the operation of railway cars, Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602 (1989); the armed interdiction of illegal drugs, Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989); work in a nuclear power facility, IBEW, Local 1245 v. United States NRC, 966 F.2d 521 (9th Cir. 1992); work involving matters of national security, AFGE Local 1533 v. Cheney, 944 F.2d 503 (9th Cir. 1991); work involving the operation of natural gas and liquified natural gas pipelines, IBEW, Local 1245 v. Skinner, 913 F.2d 1454 (9th Cir. 1990) and work in the aviation industry, Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990). “Safety-sensitive” positions in the public school context It is well established that employees who transport students hold safety-sensitive positions and therefore may be subject to drug testing without individualized suspicion. Department of Transportation rules and regulations allow for pre-employment drug testing, random testing, reasonable suspicion testing, post-accident testing and follow-up testing. Arizona Revised Statutes §15-513 allow drug testing of transportation employees as well as other employees who transport students even if this is not their primary job. See also Op. Atty. Gen. I01-021. In Aubrey v. School Board of Lafayette Parish, 148 F.3d 559, 564 (5th Cir. 1998), the 5th Circuit upheld urinalysis testing of a custodian without suspicion, finding that a custodian was a “safety-sensitive” employee. The job description for the custodian included cleaning, routine maintenance and lawn mowing duties but did not include driving a bus. The court found that the school’s interest in protecting students supported testing of employees who “interact regularly with students, use hazardous substances, operate potentially dangerous equipment, or otherwise pose any threat or danger to students.” What about other employees? Some school districts have attempted to include teachers in the “safety-sensitive” classification, with mixed results. One of the earliest cases is Knox County Education Association v. Knox County Board of Education, 158 F.3d 361 (6th Cir. 1998). The Knox County Board had adopted a policy that established, in addition to the “reasonable suspicion” drug and alcohol testing for all school employees, a suspicionless drug testing for all individuals who apply for, transfer to or are promoted to a “safety-sensitive” position within the district. Safety sensitive positions were defined to include teachers, administrators, teacher aides, substitute teachers, school secretaries and the bus driver. The 6th Circuit upheld the policy, stating that teaching was a heavily regulated industry and the school district had a strong and abiding interest in requiring that teachers and 3 226204.1 8/23/2013


other school officials be drug-free so they can satisfy their statutory obligation to insure the safety and welfare of the children: “We can imagine few governmental interests more important to a community than that of insuring the safety and security of its children while they are entrusted to the care of teachers and administrators. Concomitant with this governmental interest is the community's interest in reasonably insuring that those who are entrusted with the care of our children will not be inclined to influence children -either directly or by example -- in the direction of illegal and dangerous activities which undermine values which parents attempt to instill in children in the home. Indeed, teachers occupy a singularly critical and unique role in our society in that for a great portion of a child's life, they occupy a position of immense direct influence on a child, with the potential for both good and bad. Teachers and administrators are not simply role models for children (although we would certainly hope they would be that). Through their own conduct and daily direct interaction with children, they influence and mold the perceptions, and thoughts and values of children. Teachers and administrators are not some distant societal role models, as in the case of the Georgia political candidates in Chandler; rather, on a daily basis, there is a direct nexus between the jobs of teachers and administrators and the influence they exert upon the children who are in their charge. Indeed, directly influencing children is their job.” The Court referred to the statutory obligation imposed by Tennessee law, which states that teachers shall serve in an in loco parentis capacity and are charged with the responsibility “to secure order and to protect students from harm while in their custody.” The Court further noted: Thus, by operation of law, during school hours and at school related events, teachers stand in the place of students' natural parents and are responsible for their safekeeping. The existence of this duty is itself “unique” to school teachers and administrators, and, we believe, is, by itself, great enough to overcome the presumption against suspicionless testing. While serving in their in loco parentis capacity, teachers are on the "frontline" of school security, including drug interdiction.” Although the record evidence did not reflect that the Knox County District school teachers and other such officials had a track record of a pronounced drug problem, the Court held that the suspicionless testing was nevertheless justified by the unique role the teachers play in the lives of school children and the in loco parentis obligations imposed upon them.

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The Court declined to read the definition of "safety-sensitive" so narrowly as to preclude application to a group of professionals to whom we entrust young children for a prolonged period of time on a daily basis: “Simple common sense and experience with life tells us ‘that even a momentary lapse of attention can have disastrous consequences,’ (Skinner, 489 U.S. at 628), particularly if that inattention or lapse were to come at an inopportune moment. For example, young children could cause harm to themselves or others while playing at recess, eating lunch in the cafeteria (if for example, they began choking), or simply while horsing around with each other. Children, especially younger children, are active, unpredictable, and in need of constant attention and supervision. Even momentary inattention or delay in dealing with a potentially dangerous or emergency situation could have grievous consequences. The Court also noted that teachers’ legitimate expectation of privacy is diminished by their voluntary participation in a heavily regulated industry and by the nature of their job. The Court concluded that the public interest in suspicionless testing outweighed the teachers’ private interest. The Knox decision was written in broad strokes. Subsequent court cases define the term “safety sensitive” much more narrowly. Further, the Court in Knox upheld one-time suspicionless drug testing upon hire, transfer or promotion of teachers already within the system. The issue of random ongoing testing was not an issue as it was in the following cases. In Crager v. Board of Education of Knott County, 313 F.Supp. 2d 690 (D. Kentucky, 2004) the Plaintiff school teacher sought to enjoin the county school board's random, suspicion less drug testing policy arguing that the policy and its implementation violated her Fourth Amendment rights prohibiting unreasonable searches and seizures as well as her right to be free from medical testing under the Americans with Disabilities Act, 42 U.S.C.S. § 12112(d)(4). Using the analysis of the Knox court, the Court in Knott found that Kentucky courts have widely recognized that the teachers stand in loco parentis. Additionally, Kentucky law requires teachers and administrators to supervise student conduct at school, on the way to and from school, and on school-sponsored trips. Therefore, the Court concluded, teachers in Kentucky are “heavily regulated,” thus lessening their expectation of privacy. While recognizing that, under Knox, the school district need not demonstrate a pronounced drug problem, the Court found that there was evidence of a serious drug problem in the Knott County area and, to a more limited extent, in the school system and even took judicial notice of the fact that Knott County had been designated as part of the federal government's “High-Intensity Drug Trafficking Area” program, established “in areas where major drug production, manufacturing, importation, or distribution flourish.” The 5 226204.1 8/23/2013


Court held that random testing would significantly enhance the ability of the Board to ensure that its teachers, involved in an extremely important and “safety-sensitive” position, were drug-free. Unlike in Knox, a one-time test, administered at the start of employment or upon the passage of a drug-testing policy, would not be sufficiently effective to reduce the likelihood of drug use among teachers. It would not stop teachers from abusing drugs after their initial drug test and it would be easy for a current user to beat by temporarily suspending their drug use in order to pass the test. The only people a one-time test would likely catch are those who are presently using and so addicted that they cannot stop, even temporarily, to pass a drug test. The decision in Knott was likely determined in large part by the fact that there was evidence of a substantial drug problem. Other courts have made clear that teachers may not automatically be categorized as holding safety sensitive positions. Rather, some “concrete” problem or danger must be shown in order to establish a “special need” sufficient to justify a random, suspicionless search. In Jones v. Graham County Board of Education, 677 S.E. 2d 171 (N.C. Ct. App. 2009), the Graham County Board enacted a policy mandating random, suspicionless drug testing of all employees even though there was no evidence of a drug problem in the schools. After the teachers filed suit, the Board revised the policy. The new policy specifically designated as “safety sensitive” positions “all positions of employment within the Graham County School system, including but not limited to administrative, classified, non-classified, part time, full time, temporary and permanent”, due to the fact that these positions require work “where an inattention to duty or error in judgment will have the potential for significant risk or harm to those entrusted in their care, and the possibility or probability of contact with students and the influence employees have could cause irreparable damage to the health and wellbeing of the students.” The Court determined that there was no evidence in the record that the employees in this case were heavily regulated for safety. Consequently, the employees did not have a reduced expectation of privacy by virtue of their employment in a public school system. The Court then examined the “reasonableness” of the search, i.e., whether or not there was a “special need” that justified a departure from the individualized suspicion requirement. Citing the U.S. Supreme Court decision in Von Raab, supra, the Court held that an important element of that determination was whether there is evidence of “any concrete danger”. Since the Board had admitted that there was no evidence in the record of any drug problem among employees nor was there any evidence that any student or employee was ever harmed because of the presence of drugs or alcohol in an employee’s body, the Board failed to establish the existence of a “concrete” problem which the policy 6 226204.1 8/23/2013


was designed to prevent. The Court concluded that the need in this case was not a “special need” but, rather, was merely a “symbolic need” that was not sufficient to justify a suspicionless search. The Court further held that, considering and balancing all the circumstances, the employees’ privacy interests outweighed the Board’s interest in conducting random, suspicionless testing. The inclusion of teachers as “safety sensitive” positions was also rejected in AFT - W. Va. v. Kanawha County Bd. of Educ., 592 F. Supp. 2d 883 (S.D. W. Va. 2009) where the Kanawha County School Board also had adopted a policy mandating the random testing of teachers and other categories of public school employees. The Court in Kanawha clearly disagreed with the Knox court’s definition of what constitutes a “special need”, finding it overly expansive in a manner not supported by Supreme Court precedent. The Court stated that the question is not whether teachers have anything to do with safety, but is rather whether the magnitude of that role qualifies as a concrete special need that so outweighs the teachers' privacy interests that Fourth Amendment's protections may be abandoned. The Court found no evidence on the record to justify the classification of any of these positions as safety sensitive. The evidence did not support a conclusion that the employees held positions that posed great and concrete safety risks such as those faced by pipeline operators, airline industry personnel, correctional officers, various transportation workers, Army civilian guards, civilian workers in a military weapons plant, Justice Department employees with clearance for top-secret information, police officers carrying firearms or engaged in drug interdiction efforts, and nuclear power plant engineers. For an employee to occupy a truly safety sensitive position, it is not enough to show that the employee has some interest or role in safety. Rather, the government must demonstrate that the employee's position is one that in the ordinary course of its job performance carries a concrete risk of massive property damage, personal injury or death. The Court did not find that the existence of a special governmental need to guard against a concrete risk of great harm in this case. Additionally, the Court found that there was no evidence to establish that these employees had a reduced expectation of privacy by virtue of their employment in a public school and, therefore, the safety justification offered by the Board did not outweigh the privacy interests of the school employees. The above cases make clear that the need for suspicionless testing must be far more specific and substantial than the generalized existence of a societal problem or a symbolic need.

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Suspicionless drug testing was also the issue in a number of cases where school boards adopted a policy requiring drug testing of employees who were involved in accidents or other job injuries. Suspicionless drug testing of employees who were injured on the job. In United Teachers of New Orleans v. Orleans Parish School Board, 142 F.3d 853 (5th Cir. 1998), the policies at issue in United Teachers, mandated suspicionless testing of school board employees who were injured on the job even if their positions were not safety sensitive and even if they were not at fault. The Fifth Circuit Court of Appeals found that school board policies that required drug testing of employees injured in the course of their employment violated the Fourth Amendment. The court stated that no special needs exception to the requirement of individualized suspicion applied; the testing did not respond to any identified problem of drug use by employees. Additionally, the court found that an insufficient nexus existed between injury and drug use. In addressing whether the testing of employees who were injured in the course of employment furthered an important government interest, the court stated: "[W]orkers chosen for testing are simultaneously under inclusive 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.” A similar situation was presented in Reno v. E. Baton Rouge Parish Sch. Bd., 2010 U.S. Dist. LEXIS 28724 (M.D. La. Mar. 23, 2010). As in United, the plaintiff's drug test was administered simply because the plaintiff was injured on the job when she was attacked by a student. Following the incident, a school board official ordered her to undergo drug and alcohol testing pursuant to the board’s policy. The teacher filed a complaint claiming a violation of her rights under the fourth, fifth and fourteenth Amendments of the U.S. Constitution. The court held in favor of the plaintiff, stating that, of all the cases cited by the parties, “only United Teachers addresses that specific criteria for suspicionless testing of teachers, and, as the court in United Teachers makes clear, there is an insufficient nexus between merely suffering an injury at work and drug impairment.” Rather than furthering any important governmental interest, rules that require drug and alcohol testing of every employee injured at work appear to do precisely what they were intended to do; support the state's generalized interest in not paying compensation claims of employees 8 226204.1 8/23/2013


whose injuries were caused by drug use. Further, the school board’s general interest in a drug-free school environment was not served by these rules. Suspicionless Testing of Applicants The privacy interest of applicants is generally considered not to be as great as those of current employees. For one, applicants have control over whether or not they will be subject to drug testing in that nothing compels them to apply for a position in the public sector. In contrast, current employees must submit to a drug test or lose their jobs. Additionally, applicants undergo back ground checks before they can be considered for a position. This also reduces their expectation of privacy. Applicants can also be required to undergo a medical examination prior to being offered a position. Drug testing is often a part of that medical examination. However, these conclusions are not universally shared and cases often depend on the nature of the position applied for. Drug-testing of applicants may be more likely upheld if the application is for a safety-sensitive position. A case in point is Chandler v. Miller, 520 U.S. 305 (1997), which involved a Georgia state law requiring candidates for designated state offices to pass a drug test. When challenged, the state cited as its compelling interest its general desire to maintain a drug-free workplace. This interest, the court held, was not sufficient to override the applicants’ privacy interest and to tip the balance in favor of drug testing. A different conclusion was reached in Loder v. City of Glendale, 14 Cal. 4th 846 (Cal. 1997) where the city had created a drug and alcohol testing program for job applicants and employees who were promoted to a different position. The court held that, insofar as the city’s program imposed a drug testing requirement on every current employee who applied for and was offered a promotion without regard to the nature of the position sought, the program was overbroad and unconstitutional. However, as to the job applicants, because the program was administered in a reasonable fashion as part of a lawful pre-employment medical examination required of every job applicant, it was constitutionally permissible. The city was found to have a significantly greater interest in testing job applicants than current employees seeking a promotion. Can the applicant contractually agree to undergo drug-testing as a condition of employment? We are not aware of any case law on this particular issue. However, under basic contract law, parties to a contract may not agree to a provision that is otherwise illegal. If such provision were challenged, the court would likely examine the legality of the drug testing by determining whether the search was “reasonable” under the circumstances and by weighing the interests of the government against the individual’s privacy interests.

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Where do Arizona courts and the 9th Circuit stand on the issue of suspicionless drug testing? To date, there have been no decisions from either Arizona courts or the 9th Circuit involving suspicionless drug testing of school employees. However, the Arizona Supreme Court has addressed the issue in the context of another group of public employees, namely, fire fighters. In Petersen v. City of Mesa, 207 Ariz. 35, 41 (2004), the Supreme Court struck down a policy which required random testing for firefighters. Noting the firefighters’ privacy interests, the Court found that the City of Mesa had failed to show any real and substantial risk of any drug use that random testing was designed to address. Importantly, the Court stated that the 4th Amendment to the United States Constitution required more than a recognition that the city had a general interest in deterring drug use among employees in safety sensitive positions. Instead, the city had to look to the nature and immediacy of the city’s concern, and determine whether the drug testing program would be effective in meeting this concern. Finding that the record showed “little information about the city’s reasons for adopting random testing” and “no evidence to explain the city’s perceived need” for the testing, the court found no real or substantial risk of public safety and held that the testing furthered “only a generalized, unsubstantiated interest in deterring and detecting a hypothetical drug abuse problem. . . .” The Petersen court also cited the privacy interests protected by the Arizona Constitution in Article II, Section 8, which expressly provides that, “No person shall be disturbed in his private affairs. . . without authority of law.” The court raised the possibility that the Arizona Constitution’s protection against drug testing may be greater than the protection afforded by the 4th Amendment. However, because the court found that Mesa’s testing program violated the 4th Amendment, it did not need to proceed to the question of whether Arizona’s Constitution provided a stricter protection against such testing. This possibility should be kept in mind when reviewing cases around the nation that have upheld testing under the 4th Amendment. It is possible that such cases may not have survived a review under the Arizona Constitution.

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II. DRUG TESTING OF STUDENTS. As is the case with school employees, drug tests of students are also considered “searches” governed by the Fourth Amendment. The U.S. Supreme Court has twice decided cases involving student drug testing in schools. The first case is Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). The Vernonia school district required student athletes to submit to drug testing, for which the student's parents had to sign consent forms. One of the seventh grade students and his parents refused to sign the testing consent forms and filed suit seeking declaratory and injunctive relief from enforcement of the policy on the grounds that it violated the Fourth and Fourteenth Amendments, U.S. Const. amends. IV and XIV, and Or. Const. Art. I, § 9. The trial court denied the claims and dismissed the action. The appeals court reversed and held that the policy violated the asserted constitutional provisions. However, on appeal, the United States Supreme Court found that students were not entitled to full Fourth Amendment protections where the state's interest in preventing drug addiction among students was compelling and student athletes had a decreased expectation of privacy. Also, the urinalysis and accompanying disclosure requirements were not significant invasions of privacy. The Special Needs Exception The Supreme Court, in starting its analysis, relied on its holding in Skinner v. Railway Labor Executives Association, which established the framework for a “special needs” exception to the general rule that that the ultimate measure of the constitutionality of a governmental search is “reasonableness”, meaning that, generally, a judicial warrant based on probable cause is required to conduct a search. The Court reiterated its holding that a search unsupported by probable cause can be constitutional, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Such “special needs” were found to exist in the public school context. There, the warrant requirement “would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed,” and “strict adherence to the requirement that searches be based on probable cause” would undercut “the substantial need of teachers and administrators for freedom to maintain order in the schools.” Because the policy in this case was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care, the drug testing policy in this case was justified under the “special needs” exception. Reduced Expectation of Privacy Due to the schools’ custodial and tutelary responsibility for children, students within the school environment have a lesser expectation of privacy than members of the population generally. For 11 226204.1 8/23/2013


example, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases. Most public schools provide vision and hearing screening and dental and dermatological checks. Others also mandate scoliosis screening at appropriate grade levels. Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require “suiting up” before each practice or event, and showering and changing afterwards. Public school locker rooms are not notable for the privacy they afford. The locker rooms in Vernonia did not provide individual dressing rooms; shower heads were lined up along a wall, unseparated by any sort of partition or curtain. Not all the toilet stalls had doors. Citing an opinion by the United States Court of Appeals for the Seventh Circuit, the Vernonia court noted that there is an element of “communal undress” inherent in athletic participation. Participation is Voluntary An additional factor in the court’s decision was that school athletes have a reduced expectation of privacy. By choosing to “go out for the team,” they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally. Similar to adults who choose to participate in a “closely regulated industry,” students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy. See Skinner, 489 U.S. at 627; United States v. Biswell, 406 U.S. 311, 316, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972). The Degree of Intrusion is Limited The court next considered the character of the intrusion that is complained of, namely, the collection of a specimen. The court acknowledged that collecting the samples for urinalysis intrudes upon “an excretory function traditionally shielded by great privacy.” However, the degree of intrusion depends upon the manner in which production of the urine sample is monitored. In this case, the court found that the nature of the intrusion was minimal, especially since the results were not turned over to law enforcement officials. Compelling Government Interest Finally, the court noted that, in the absence of individualized suspicion, the District must demonstrate a “compelling need” for the program. The phrase “compelling state interest,” in the Fourth Amendment context, does not describe a fixed, minimum quantum of governmental concern, which would be difficult to establish at best. Rather, the phrase describes an interest that appears important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy. In this case, the court found that the District’s interest was sufficiently important to meet the definition of “compelling interest.” 12 226204.1 8/23/2013


The second U.S. Supreme Court case is Board of Education of Independent School District 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002). The Board of Education in Earls had instituted a policy that required all students who participated in any of the district's competitive extracurricular activities (such as band members, choir members, academic team members, and athletic team members) to submit to urinalysis drug testing. The samples were collected by a teacher who listened for the sounds of normal urination while the student was in a bathroom stall. Students were required to give a list of any prescription medications they were taking, and the urine was only tested for controlled substances. Positive results were to be kept confidential, except that such results were to lead to parent notification and drugcounseling recommendation. Students were not subject to arrest or to dismissal from school if they tested positive for drugs. Students would have to repeatedly test positive or to refuse counseling before being dismissed from their extracurricular activities. A student, who was a member of the marching band and the academic team, filed a lawsuit in the United States District Court for the Western District of Oklahoma alleging that the drug testing policy violated the student’s rights under the Fourth Amendment to the U.S. Constitution. Using the same factors identified in Vernonia, the court determined that the school’s drug-testing policy reasonably served the school district’s important interest in detecting and preventing drug use, and the policy did not violate the Fourth Amendment's prohibition against unreasonable searches and seizures: (1) The students affected by the policy had a limited expectation of privacy, for students who participated in nonathletic competitive extracurricular activities voluntarily subjected themselves to many of the same intrusions on their privacy--occasional offcampus travel and communal undress, as well as rules and requirements that did not apply to the student body as a whole--as did athletes. (2) The sample-collection procedure in the instant case was virtually identical to--and to the extent of difference, even less intrusive than--a collection method that had been determined by the court not to violate the Fourth Amendment in an earlier case that involved high school athletes. (3) The invasion of the students' privacy was not significant, as the results neither (a) were turned over to any law enforcement authority, (b) lead to the imposition of discipline, nor (c) had any academic consequences. (4) The district had provided sufficient evidence of the need for its policy, which was 13 226204.1 8/23/2013


a reasonably effective means of addressing the district's legitimate concerns in preventing, deterring, and detecting drug use. (5) The court had never required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing. State courts both prior to and after Earls have generally upheld random student drug testing policies provided that they do not go beyond testing of students involved in voluntary extracurricular activities and, further, provided that they meet the criteria set forth in both Vernonia and Earls. Randomly testing entire student populations does not appear to meet the reasonableness requirement of the Fourth Amendment. In Theodore v. Delaware Valley School District, 575 Pa. 321 (Penn. 2003), the Pennsylvania Supreme Court held that random testing of all students who sought to participate in extra-curricular activities or obtain a school parking permit was unreasonable where the district had not suggested that it had a “special need� to test students for drugs and alcohol based on an existing problem in the schools and there was no showing that the group targeted for testing presented a drug problem. In Joye v. Hunterdan Cent. Regional High School, 826 A.2d 624 (NJ 2003), the New Jersey Supreme Court upheld a policy for random drug and alcohol testing for interscholastic athletes. Test results were confidential, and positive tests did not result in school penalties other than exclusion from sports. Results were not referred for criminal prosecution. The policy was later expanded to all participants in extra-curricular activities and school parking permit holders. Relying on the United States Supreme Court decision, the New Jersey Supreme Court upheld the testing program, finding that the program was minimally intrusive, and was justified by the special need to maintain school order and safety. Participants in extracurricular activities and those seeking parking privileges voluntarily subjected themselves to additional regulations that did not apply to the general student body. Similarly, in Linke v. Northwestern School Corp., 763 N.E.2d 972 (Ind. 2002), the Indiana Supreme Court upheld a drug testing policy applied to extra-curricular activities in grades seven through twelve where positive test results affected only extra-curricular participation and had no other implications for student discipline or criminal prosecution. The court concluded that the school district had articulated a legitimate concern in preventing drug use and had demonstrated that random testing was a reasonable means for achieving prevention.

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III.

A WORD ABOUT DRUG TESTING POLICIES

Assuming that a need for random drug testing can be established, any policy enacted by a school district must be able to pass constitutional muster. For example, in Smith County Education Association v. Smith County Board of Education, 781 F. Supp. 2d 604 (D. Ct. Tennessee 2011), the school board had enacted a random drug testing policy for its employees, including the approximately 300 teachers employed by the Board. The teachers brought an action in the United States District Court for the Middle District of Tennessee, challenging the policy. The court found that while the Board had established a special need for adopting a random drug testing policy, its policy was constitutionally flawed by its lack of proper notice of what drugs were the subject of the testing and how the policy was to be implemented. The policy in that case provided for testing under the following circumstances: (1) job applicant drug testing; (2) reasonable suspicion drug and alcohol testing; (3) routine fitness-for-duty drug or alcohol testing; (4) follow-up drug or alcohol testing and (5) post-accident testing. Job applicants and employees were subject to testing for “alcohol, amphetamines, cannabinoids, cocaine, phencyclidine and opiates and any other substance prohibited by statute.” Notably, the policy did not contain a provision for random testing although the Board had intended that the policy contain a randomness component. Therefore, following enactment of the policy, the Board began to randomly test 10% of its employees, including the teachers. Three years later, the Board added random testing as part of its drug testing policy. The company hired by the Board to perform the testing added four new categories of drugs for which employees would be tested. No cut-off level was established in the policy for these drugs which meant that employees would fail if there was any detectable amount of drugs. No change was made to the policies to add the four new categories of drugs. The in-service training provided to the employees on the drug testing procedures included a power point which did not specify the brand names of the drugs to be tested. Additionally the presentation stated repeatedly that no random testing would occur even though this was clearly the case. The court found, based on the Sixth Circuit Court’s decision in Knox, that the teachers stand in loco parentis to their students and occupy “safety sensitive” positions. Recognizing that that the drug testing regime in Knox was found not to be “overly intrusive” because it involved a onetime suspicionless testing and did not involve ongoing random testing, the court in this case nevertheless concluded that “random testing of governmental employees is not per se unconstitutional under prevailing Sixth Circuit law…” (citation omitted) However, the court noted that “a policy enacted to address unlawful drug use, whether illegal or prescription drugs, must give constitutionally adequate notice and must be implemented 15 226204.1 8/23/2013


with due regard for the privacy rights of teachers to be ‘reasonable’ for purposes of the Fourth Amendment.” In this case, the court held that the policy adopted by the Board was not clear, either in its wording or its implementation. Therefore, the searches were “unreasonable” and in violation of the employees’ constitutional rights. We are not aware of any school districts in Arizona that may have enacted random drug testing policies. Several school districts have adopted drug-testing policies based on reasonable suspicion and post-accident. Both the Phoenix Union High School District and the Amphitheater School District have extensive drug and alcohol testing policies for professional and support staff. For example, the Amphitheater policies include a definition of what constitutes “reasonable suspicion”; a definition of a “controlled substance”; when drug-testing is required and that disciplinary action will be taken not only for being under the influence but also for refusing to supply a testing sample; a description of the procedure and what happens if the employee has a positive test result. If a district were to adopt a random drug testing policy for its employees in safety-sensitive positions (other than transportation employees) we believe that such a policy should, at a minimum meet the drug testing requirements for private employers under Arizona law. A.R.S. §23-493 et seq. permits private employers to test their employees for the presence of drugs and alcohol, especially for any job-related purposes consistent with business necessity, including for safety reasons. However, the law requires that before an employer can test employees for the presence of drugs or alcohol, the employer must implement a written policy that is distributed to all employees. The written policy must include, at a minimum, the following: 1. A statement of the employer's policy respecting drug and alcohol use by employees. 2. A description of those employees or prospective employees who are subject to testing. 3. The circumstances under which testing may be required. 4. The substances as to which testing may be required. 5. A description of the testing methods and collection procedures to be used. 6. The consequences of a refusal to participate in the testing. 7. Any adverse personnel action that may be taken based on the testing procedure or results. 8. The right of an employee, on request, to obtain the written test results. 9. The right of an employee, on request, to explain in a confidential setting, a positive test result. 10. A statement of the employer's policy regarding the confidentiality of the test results. See A.R.S. §23-493.04.

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The statute also sets forth the requirements for testing procedures, scheduling of tests and collecting samples. Additionally, only a facility approved and verified by the United States Department of Health and Human Services, the College of American Pathologists or the Arizona department of Health Services may conduct tests. CONCLUSION Drugs are one of the most serious problems facing the American public schools today. Traditional methods of anti-drug education do not appear to be effective in stopping the proliferation of drugs in the schools. It is therefore not surprising that many school districts have expressed the intent or desire to enact programs of random, suspicionless drug testing of students. However, caution is advised in drafting/adopting an effective student drug testing policy. Note that, to date, court approval of drug testing policies has been strictly limited to high school or students in grades seven through twelve who participate in voluntary, extracurricular activities. Test results in these cases have not been used as a basis for discipline or exclusion from academic activities, through suspension or otherwise, and results have not been referred to law enforcement. Additionally, Governing Boards would need to make a specific finding of a “special need� for such a drug testing program. Defense of a policy which differs from those approved by the courts could be problematic. Adding penalties in addition to exclusion from extracurricular activities may require, at a minimum, reasonable suspicion or other cause, and consequences for a positive test result may not be upheld on legal review, especially in light of the very conservative approach to privacy issues of the 9th Circuit Court of Appeals, as evidenced by the 2004 Arizona case Petersen v. City of Mesa.

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http://www.azsba.org/wp-content/uploads/2013/08/FRBR3-Drug-Testing-in-Schools-Horstman.pdf

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