Posted by Eugene Volokh:
Court Strikes Down Random Drug Test Policy for All Public School Employees:
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245344072
From [1]Jones v. Graham County Bd. of Educ. (N.C. Ct. App. June 2)
(some paragraph breaks added), an interesting discussion of the issue:
([2]Show the case excerpt.)
We first address Plaintiffs' contention that the policy violates
Article I, Section 20 of the North Carolina Constitution, which
provides as follows:
General warrants, whereby any officer or other person may be
commanded to search suspected places without evidence of the act
committed, or to seize any person or persons not named, whose
offense is not particularly described and supported by evidence,
are dangerous to liberty and shall not be granted.
Plaintiffs assert that �[o]n its face, the ... policy violates the
prohibition against general warrants[,]� and that the policy
violates Article I, Section 20's guarantee against unreasonable
searches conducted by the government.
We are inclined to agree that the policy violates the prohibition
against general warrants. See In re Stumbo, 582 S.E.2d 255, 266
(2003) (Martin, J., concurring) (�[P]ermitting government actors
�to search suspected places without evidence of the act committed�
... is tantamount to issuing a general warrant expressly prohibited
by the North Carolina Constitution.�). However, because we hold,
for the reasons set forth below, that the Board's policy violates
Article I, Section 20's guarantee against unreasonable searches, we
do not reach the question of whether the policy violates the
prohibition against general warrants.
The language of Article I, Section 20 ��differs markedly from the
language of the Fourth Amendment to the Constitution of the United
States.�� Nevertheless, Article I, Section 20 provides protection
�similar� to the protection provided by the Fourth Amendment, and
it is well-settled that both Article I, Section 20 and the Fourth
Amendment prohibit the government from conducting �unreasonable�
searches.... [W]e first determine whether the policy violates the
Fourth Amendment .... If we determine that the policy does not
violate the Fourth Amendment, we may then proceed to determine
whether Article I, Section 20 provides ��basic rights in addition
to those guaranteed by the [Fourth Amendment].��
The reasonableness of a governmental search is generally determined
�by balancing the nature of the intrusion on the individual's
privacy against the promotion of legitimate governmental
interests.� But ��some quantum of individualized suspicion is
usually a prerequisite to a constitutional search or seizure.�� The
Fourth Amendment, however, ��imposes no irreducible requirement of
[individualized] suspicion.�� ��[I]n certain limited circumstances,
the Government's need to discover ... latent or hidden conditions,
or to prevent their development, is sufficiently compelling to
justify the intrusion on privacy entailed by conducting ...
searches without any measure of individualized suspicion.�� Thus, a
suspicionless search may be reasonable under the Fourth Amendment
where ��special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable.��
Where the government alleges �special needs� in justification of a
suspicionless search, �courts must undertake a context-specific
inquiry, examining closely the competing private and public
interests advanced by the parties.� An important consideration in
conducting the inquiry is whether there is �any indication of a
concrete danger demanding departure from the Fourth Amendment's�
usual requirement of individualized suspicion. The purpose of the
inquiry is �to determine whether it is impractical to require a
warrant or some level of individualized suspicion in the particular
context.� Conducting the inquiry, the United States Supreme Court
has upheld suspicionless searches in the following instances: (1)
drug testing of students seeking to participate in competitive
extracurricular activities; (2) searches of probationers; (3) drug
testing of railroad employees involved in train accidents; (4) drug
testing of United States customs officials seeking promotion to
certain sensitive positions; and (5) searches of government
employees' offices by the employer.
We begin our inquiry by attempting to examine the intrusiveness of
the proposed testing procedure.... [Even] assuming the Board only
tests employees' urine, we emphasize that the policy provides that
�[a]ny employee who is found through drug or alcohol testing to
have in his or her body a detectable amount of an illegal drug or
of alcohol� will be suspended. Although a litany of other
provisions in the policy bear directly on the intrusiveness of the
testing procedure, we find it unnecessary to venture beyond this
provision to state that the policy is remarkably intrusive.
We next consider whether Board employees have a reduced expectation
of privacy by virtue of their employment in a public school system.
Public employees may have reduced expectations of privacy if their
employment carries with it safety concerns for which the employees
are heavily regulated. By way of illustration, chemical weapons
plant employees are heavily regulated for safety. There is no
evidence in the record before us, however, that any of the Board's
employees are regulated for safety. We question whether the Board
could produce such evidence. The Board errantly relies on the
premise that �Fourth Amendment rights ... are different in public
schools than elsewhere; the �reasonableness' inquiry cannot
disregard the schools' custodial and tutelary responsibility for
children.� The Board, however, fails to account for the explicit
teaching of the Supreme Court that because �the nature of [the
schools' power over schoolchildren] is custodial and tutelary, [the
schools' power] permit[s] a degree of supervision and control [over
schoolchildren] that could not be exercised over free adults.� We
are unable to conclude from this record that any of the Board's
employees have a reduced expectation of privacy by virtue of their
employment in a public school system.
Finally, the record in the case at bar is wholly devoid of any
evidence that the Board's prior policy was in any way insufficient
to satisfy the Board's stated needs. [The prior policy "required
all job applicants to pass �an alcohol or drug test� as a condition
of employment; required all employees to submit to �an alcohol or
other drug test� upon a supervisor's �reasonable cause� to believe
that the employee was using alcohol or illegal drugs, or abusing
prescription drugs, in the workplace; and required �[a]ny employee
placed on the approved list to drive school system vehicles� to
submit to �random drug tests.� Additionally, the policy mandated
the suspension of any employee who, in a supervisor's opinion, was
impaired by alcohol or drugs in the workplace." -EV]
The Board acknowledges that there is no evidence in the record of
any drug problem among its employees. There is also a complete want
of evidence that any student or employee has ever been harmed
because of the presence of �a detectable amount of an illegal drug
or of alcohol� in an employee's body. We agree that the Board need
not wait for a student or employee to be harmed before implementing
a preventative policy. However, the evidence completely fails to
establish the existence of a �concrete� problem which the policy is
designed to prevent. The need to promote an anti-drug message is
�symbolic, not �special,� as that term draws meaning from [the
decisions of the United States Supreme Court].�
Considering and balancing all the circumstances, we conclude that
the employees' acknowledged privacy interests outweigh the Board's
interest in conducting random, suspicionless testing. Accordingly,
we hold that the policy violates Article I, Section 20's guarantee
against unreasonable searches.
We reject the Board's assertion that �ample guidance to uphold the
Board's drug testing policy� can be found in Boesche v.
Raleigh-Durham Airport Authority, 432 S.E.2d 137 (N.C. Ct. App.
1993). The plaintiff in Boesche was an airport maintenance mechanic
whose job duties generally consisted of �performing preventative
maintenance and repairs on airport terminal [HVAC] systems, but
plaintiff also had security clearance to drive a motor vehicle 10
M.P.H. in a designated area on the apron of the flight area in
order to get access to the systems located on the outside of the
building.� Without expressing that the plaintiff was suspected of
any individualized wrongdoing, the defendants asked the plaintiff
to submit to a urine drug test. The defendants told the plaintiff
that the test was required �pursuant to a Federal Aviation
Administration directive requiring that all employees who drive a
motor vehicle in the airside of the airport must be tested.� The
plaintiff refused to submit to the test, was fired, and
subsequently [sued] .....
In stating that the Boesche plaintiff was in a position �in which
public safety or the safety of others was an overriding concern,�
this Court merely held that the defendants had made the showing ...
that the plaintiff had �duties fraught with such risks of injury to
others that even a momentary lapse of attention can have disastrous
consequences.� This Court did not hold that any public employee
who, �if drug impaired ..., could increase the risk of harm to
others� was subject to urine drug testing. Rather, the Court held
that the plaintiff, �if drug impaired while operating a motor
vehicle on the apron of the flight area, could increase the risk of
harm to others.� ...
In the case before us, there is absolutely no evidence in the
record which in any way equates the safety concerns inherent in the
driving of a motor vehicle on the apron of an airport's flight area
with the safety concerns inherent in the job duties of any Board
employee. In fact, there is absolutely no evidence in the record
that any Board employee whose body contains �a detectable amount of
an illegal drug or of alcohol� increases the risk of harm to
anyone.
([3]Hide.)
References
1. http://www.aoc.state.nc.us/www/public/coa/opinions/2009/080477-1.htm
2. file://localhost/var/www/powerblogs/volokh/posts/1245344072.html
3. file://localhost/var/www/powerblogs/volokh/posts/1245344072.html
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