The Fifth Circuit Court of Appeals recently decided two cases regarding random and suspicionless drug testing of school employees. While the Fifth Circuit rulings are binding only in the states of Louisiana, Mississippi, and Texas, the rulings are considered persuasive authority for other Courts of Appeals, such as the Seventh Circuit, which encompasses Illinois. The two cases, decided in May and August 1998, addressed the constitutionality of three school districts' employee drug testing policies. The Fifth Circuit upheld the random drug testing of custodians of one district but rejected the other district's policy that required all employees to submit to a drug test when injured in the course of employment. This Bulletin Board will explore the Fourth Amendment issues involved in both cases and provide practical guidance for school districts in Illinois regarding employee drug testing.
I. Facts of the Cases
A. United Teachers of New Orleans v. Orleans Parish School Board
This case involves two teachers' unions which challenged the drug testing policies of the Jefferson Parish and Orleans Parish school boards.
The Jefferson Parish School Board policy read as follows:
The Jefferson Parish School System will require, as a condition of employment, all employees to submit to a drug abuse screening panel and a blood alcohol test by the Jefferson Parish School Board's designated agent for worker's compensation cases following an accident during the course and scope of employment. Laboratory work will be performed by the Board's designated drug testing laboratory. Failure to comply with this mandatory requirement may result in disciplinary action, including but not limited to, suspension without pay.
The Orleans Parish School Board read as follows:
In addition to pre-employment substance abuse screening, employment actions that shall require such testing may include the following: Reasonable suspicion that there has been a violation of the rules and regulations pertaining to substance abuse, OPSB-required annual physical examinations, Post Accident/Post Incident screening, and during the six month random testing period following disciplinary action and reinstatement.
The teachers' unions asserted that the above policies were violative of the Fourth Amendment to the United States Constitution on their face. The unions sought preliminary injunctions against the school districts to stop them from requiring testing of teachers, teachers' aides, and clerical workers. The district court denied the injunctive relief and the unions appealed.
B. Aubrey v. School Board of Lafayette Parish
This case involved the random drug testing of a school district custodial staff-member. In 1992 the Lafayette Parish School Board adopted an Employee Drug Testing Policy which stated that employees in safety-sensitive positions would be subjected to random drug testing. The school district gave notice to those employees so classified, and provided in-service training regarding the drug policy. Each employee received and reviewed the policy.
It is unclear how the district determined which positions would be classified as safety-sensitive. However, the facts reveal that Plaintiff Aubrey's custodian position included mowing the grounds immediately adjacent to the building, securing the building at the end of the school day, making minor repairs to buildings, furniture and equipment, lighting pilot lights, maintaining heating and air conditioning equipment, cleaning and replacing light fixtures, and trimming trees. The court also noted his daily interaction and contact with students while operating potentially dangerous machinery.
Each year, the school district, according to its policy, submitted a list of safety-sensitive positions within the district to a drug testing company. In 1994, the district randomly selected Aubrey and fourteen other employees for testing. Aubrey tested positive for marijuana. The district did not request Aubrey's termination but directed him to attend a substance abuse program. Aubrey filed suit to enjoin the school district from sending him to a treatment center or from terminating him. The district court granted the injunction but later granted the school district's motion for summary judgment and dismissed the complaint. Aubrey appealed this decision to the Fifth Circuit Court of Appeals.
II. Fourth Amendment Protection
Both cases required the Court of Appeals to analyze school district employees' rights under the Fourth Amendment to the United States Constitution. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized.
One of the primary purposes of the Fourth Amendment is preventing unreasonable intrusion by governmental entities into the private rights of citizens. School districts are clearly defined as governmental entities and as such are bound by the Fourth Amendment.
The Supreme Court defines the standard for searches, absent individual suspicion, to be: A balancing test of the individual's right to privacy against the government's need for the search. The Court foresaw two situations where the traditional probable cause and warrant requirements were not flexible enough: (1) Where the search requires a lesser individualized suspicion, and (2) those requiring no suspicion but only random or non-arbitrary selection procedures. See, Terry v. Ohio, 392 U.S. 1 (1968). As a general rule, drug testing of public employees absent individual suspicion was unlawful. However, the Supreme Court carved out certain exceptions involving "safety sensitive positions," i.e., safety in regulated industries involving possibility of extreme injury or harm (Skinner v. Railway Labor Executives' Association, 489 U.S. 602 [1989]) and the interdiction of illegal drugs into the country and carrying of weapons (National Treasury Employees v. Von Raab, 489 U.S. 656 [1989]). The Supreme Court decisions provide that where the legitimate governmental interest is significant, intrusion into a person's Fourth Amendment right to be free from searches may be reasonable.
III. Application of the Fourth Amendment Standards to the Cases.
In light of the above constitutional parameters, the Fifth Circuit analyzed both appeals. With regard to the district's policy of testing all school employees injured on the job, the Court stated that any collection and testing of urine is a search and must be based upon an individualized suspicion of wrongdoing or fall within a limited category of "special needs" which outweigh the individual's privacy interest. While the Court agreed that "evidence of drug use on the job by teachers could identify a strong state interest [because] teachers are entrusted with the nation's most precious asset--its children," the Court ruled that the requirement that an employee submit to a drug test when an injury occurred to district staff did not respond to any identified drug problem by teachers, aides, or clerks. (emphasis added.) According to the Court, "there is an insufficient nexus between suffering an injury at work and drug impairment." The Court concluded that the school districts failed to show that the school employees' jobs fell into a "special needs" category which would allow for such random drug testing.
In Aubrey, the Court found that the school district's random drug testing policy with regard to its custodial staff did not violate the Fourth Amendment. The school district argued that the drug testing policy furthered its interests in "maintain[ing] the safe and efficient operation of its schools, ensur[ing] the physical safety of the children . . . and decreas[ing] the potential spread of drug use among its students." The policy was 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. The school district did not produce any evidence of a drug problem among its custodial staff, but the Court stated that "although such a showing would be of persuasive value, it is not mandatory." The Court found the school district's interests substantial because the custodial staff's safety-sensitive designation was based upon handling potentially dangerous equipment and substances, and daily interaction with a large number of children.
The Court held that the school district's employees should reasonably expect effective inquiry into their fitness and probity to operate and use such material in a school setting. The Court squared this decision with its earlier decision in United Teachers, by stating that the Lafayette School Board "demonstrated that it was motivated by a special incentive to protect our most important resource--children" and that the Orleans and Jefferson Parish School Boards "relied solely upon [a] general interest" in drug-free schools.
One of the Court Justices disagreed with the decision, stating that the employee at issue was just an ordinary janitor who was under daily supervision of school officials. He also noted that "Aubrey's job involved [no] more hazardous cleaning materials or equipment than that used by innumerable other ordinary janitorial workers."
IV. Practical Guidance For Employee Drug Testing
As stated earlier, these cases were decided in the Fifth Circuit Court of Appeals and are, therefore, not binding in Illinois. We believe, however, that these cases offer helpful guidance to Illinois school districts and may evidence a willingness of the courts to allow random drug testing of public employees when certain conditions are met.
While a random drug testing policy of all public school employees will likely still be found to violate the Fourth Amendment, school employees who are properly classified as safety-sensitive employees may be subjected to random testing. Safety-sensitive, based upon prior Supreme Court decisions, and the Aubrey case involve, at a minimum, the use of dangerous equipment, and/or use of hazardous substances. It would also appear to require that such equipment or materials be used around students of the district. Districts should conduct a thorough analysis of the specific duties, requirements, and materials involved with regard to each position as a starting point in determining whether a position could be classified as "safety-sensitive." Additionally, while the Aubrey court upheld such random testing as constitutional, it is important to note that the policy at issue did not mandate the immediate dismissal of any employee testing positive but only required that the employee submit to a substance abuse program. As such, districts are advised to consider having substance abuse counseling as a first offense for violation of its random drug testing policy. Along with such counseling, regular random drug tests may also be required of any employee testing positive for drugs. Finally, districts should note that neither case prohibits school districts from requiring employees to submit to drug testing if there is reasonable suspicion of drug use.