Marijuana Policy Project

Random Drug Tests Violate Fourth Amendment

Chief Judge Joseph Goodwin, of the U.S. District Court for the Southern District of West Virginia, entered a Memorandum Opinion substantiating the granting of a preliminary injunction blocking Kanawha County Board of Education random drug testing of employees.
 
Judge Goodwin noted at the start “neither the U.S. Supreme Court nor the [United States Circuit Court of Appeals for] the Fourth Circuit has ruled upon the constitutionality of a suspicionless random drug testing program for public school teachers or other public school personnel.”
 
That observation allows ample legal opportunity for the Kanawha Board to test the finding in the Richmond, Va. Appeals court.
 
The jest of Judge Goodwin’s ruling analyzed that teachers are “public employees” (i.e. government employees) which separates them from “searches by private [nongovernmental] parties.” He reasoned that the potential risk to students was hypothetical, rather than “concrete,” and that a urine drug test is highly invasive on the privacy interests of a person.
 
However, the chief judge analyzed that since school employees come into contact with other employees, are subject to in hall camera monitoring, and other manner of observation (such as a supervisor visiting the classroom), teaching does not fit the definition for safety sensitive positions. For example, he cited a train engineer, operator of a nuclear reactor, chemical plant employee or a law enforcement officer carrying a gun as meeting the definition where “a single mistake by such employee can create an immediate threat of serious harm to students, to him or herself or to fellow employees.”
 
Although the Kanawha County School System had found six to eight employees who tested positive — including a principal accused of possessing cocaine and later acquitted and reinstated to his position — the court concluded that the Board must have “concrete” reasons for implementing the random drug testing procedures, not simply to use it as, in the court’s words, “an insurance policy.”
 
The judge relied on U.S. Supreme Court precedent which allowed limited random testing of employees in sensitive positions where the danger to the public outweighed the individual’s own right to privacy.
 
“The Supreme Court has found thus far sufficiently important special needs to outweigh an individual’s privacy interests when faced with major safety concerns such as the great harm to people and property that could result from a railroad accident, the threat to national security posed by the failed interdiction of illegal drugs smuggled across our borders, and the risk to safety created by the potential use of deadly force by a drug-addled Customs employee equipped with a firearm.”
 
Although the board did not propose a urine test in which an individual observed as the sample was collected, Goodwin emphasized that “drug testing qualifies as a search, but it is particularly invasive by urinalysis [which] intimately involves an individual’s privacy and body integrity. There are few activities in our society more person or private than passing urine,” Judge Goodwin wrote. “Most people describe it by euphemisms if they talk about it at all.”
 
He found that such suspicionless searches were “a speculative exercise to find remote risks of horrible disasters,” as opposed to a danger “characterized by immediate experience of realities [which must be] an actual, threatened danger and not some perceived potential danger.” Relying on testimony by Dr. Ronald Duerring, Superintendent of Kanawha County Schools, testified that the Board feared “teachers could present a danger to students and that employees who were around students or who made decisions could jeopardize student safety. The judge’s written memorandum quoted Dr. Duerring’s testimony that the Board feared “harm that could come to [children] from [employees] either being on alcohol or being on drugs.”
 
But Goodwin could not analogize “a teacher wielding a history textbook” to such safety sensitive positions such as operating trains or nuclear reactors or having “firearm in the hands of someone on drugs.”
 
“The current state of the evidence is such that the safety interests at stake are hypothetical and they cannot be extrapolated to outweigh the employees’ privacy interests, which are not diminished in any way by virtue of their employment in a public school,” the judge wrote. “I therefore FIND that there is no evidence on the record to justify the classification of any of these positions as safety sensitive. There is no evidence that these employees hold positions permeated with great and concrete safety risks that are comparable to 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.” Hatley v. Dep’t of Navy, 164 F.3d 602, 604 (Fed. Cir. 1998). The record reveals no real need for random drug testing because “the need revealed, in short, is symbolic, not ‘special’...”
 
In granting the preliminary injunction, he found that the school board would save an estimated $36,608 annually by not violating constitutional rights of their employees. “They [the board] will save money that they planned to spend on the additional drug testing,” which he called “an unconstitutional excess that threatens the fundamental freedom from unreasonable searches.”
 
The full opinion (37 pages) can be found by clicking here:
 
http://www.wvsd.uscourts.gov/district/opinions/pdf/PUBLISH%20MEM%20OPINION-%20grant%20prelim%20injunction.pdf