Joan E. Friedenberg v. School Board of Palm Beach County
Opinion
A suspicionless search by the government is presumptively unconstitutional. So goes the basic hornbook law of the Fourth Amendment. The details are a bit more complex. Suspicionless searches are permissible in a narrow band of cases where they serve sufficiently powerful and unique public needs. The force of these needs depends heavily on the context in which the search takes place.
At issue today is a matter of first impression-whether a county school board may require all applicants for substitute teacher positions to submit to and pass a drug test as a condition of employment. That is, to put it more directly, whether the Palm Beach County School Board (the "School Board") may, without any suspicion of wrongdoing, collect and search-by testing-the urine of all prospective substitute teachers. We think that the School Board has a sufficiently compelling interest in screening its prospective teachers to justify this invasion of the privacy rights of job applicants, and thus conclude that the School Board has not violated the constitutional mandate barring unreasonable searches and seizures. As we see it, ensuring the safety of millions of schoolchildren in the mandatory supervision and care of the state, and ensuring and impressing a drug-free environment in our classrooms, are compelling concerns. Because we recognize today a special need to conduct such testing, and because the balance of interests weighs heavily in its favor, we hold that the suspicionless testing of substitute teacher applicants in Palm Beach County is permissible and affirm the district court's denial of a preliminary injunction.
I.
A.
Joan Friedenberg applied for several advertised positions-tutor, substitute teacher, and early childhood aide-in the Palm Beach County School District. Among other things, the online application required Friedenberg to agree to be tested *1088 for drugs. In February 2017, Friedenberg received a conditional offer to become a substitute teacher. She was told, however, that she would need to be fingerprinted-for a full background check-and would need to pass a drug test before she could be officially hired. Friedenberg was fingerprinted but refused to submit to drug testing.
Since our constitutional analysis depends in substantial measure on the specific facts and the unique circumstances found in our public schools, we are obliged to examine closely the testing protocol adopted by the School District, the efficacy of the testing regime, and the duties and responsibilities of substitute public school teachers. The drug testing was required under the School District's "Drug and Alcohol-Free Workplace" policy, which provides for drug testing to be performed in conformity with Florida's Administrative Code. See Fla. Admin Code. R. 59A-24.005(3). The policy required, among other things, pre-employment drug testing of all job applicants. The relevant provision read this way:
Pre-employment screening will be required of all applicants before employment with the District. Any applicant who tests positive in the pre-employment screening for a drug as defined in this Policy will not be hired and is not eligible to re-apply for employment with the District for one year following the confirmed positive test.
The School District has a separate policy requiring suspicionless drug testing of those employees and volunteers who perform "safety-sensitive functions," mostly involving the operation of commercial vehicles. 1
Under the pre-employment drug-testing policy, the applicant typically provides a urine sample in the privacy of a bathroom stall. Fla. Admin Code. R. 59A-24.005(3). While the applicant provides the sample, collection site staff remain in the room, but outside the stall. Fla. Admin Code. R. 59A-24.005(3)(c)(7). Before collection, applicants are asked to wash their hands, empty their pockets, remove outer clothing, and place all personal belongings aside. Fla. Admin Code. R. 59A-24.005(3)(c)(5)-(6). A wallet may be kept, but staff may search it for contaminants. Fla. Admin Code. R. 59A-24.005(3)(c)(5). After collection, the testing staff observe the urine sample for evidence of tampering. Fla. Admin Code. R. 59A-24.005(3)(c)(12). If tampering is suspected, a supervisor may approve collection of a second sample under direct observation by a person of the same gender as the applicant. Fla. Admin Code. R. 59A-24.005(3)(c)(13). Drug-tested applicants are also required to disclose all medications they are taking before being tested.
Select information from the drug testing is reported to the School Board. Among other things, positive test results, including the substance or substances for which the specimen tested positive, are reported. The reports also indicate whether an individual refused testing or left the testing site. Five individuals within the School Board's Department of Risk and Benefits Management receive this information. The results are held in a "confidential electronic medical folder" and are not reported to any law enforcement official. The hiring school site or department is informed only *1089 that the applicant did not pass a medical examination. Moreover, self-disclosed information about medications is seen only by the collection staff and a review officer-a position the District outsources.
Testing under this policy has revealed relatively few positive results. In 2016, 4,965 job applicants were subject to the District's pre-employment screening. Of that total, forty individuals were disqualified by testing positive or failing to submit to the drug test. The disqualifications included thirty-three positive tests and seven individuals who refused to take the test or left the testing site. That is, of 4,958 job applicants who submitted to drug testing, 0.67 percent tested positive. Twenty-seven of the thirty-three positive tests were positive for marijuana; three more were positive for benzodiazepines (antianxiety drugs), two for cocaine, and one for opiates.
Among the forty job applicants disqualified by the drug testing regime were twenty-five applicants for noninstructional roles and fifteen applicants for instructional roles, including six substitute teacher applicants. Of the six disqualified substitute teacher applicants, four tested positive for marijuana, one tested positive for cocaine, and one refused to take the test. Eleven of the forty disqualified applicants began work with the District and worked for some time before the results of the drug test disqualified them, including three teachers and a coach. Notably, the record does not reflect how many applicants for substitute teachers-or how many applicants for instructional positions-were tested of the total number of job applicants tested during the 2016 year. Nor is there any empirical data addressing how many would-be applicants for instructional positions were deterred by the County's drug-testing regime.
The typical workday of a substitute teacher in the School District includes five to six hours of classroom time, generally alone with students. Before the school day, substitute teachers check in and are seen by others, such as a school principal, in the school office; they also check out at the office at the end of the day. During the day, substitutes may be monitored by supervisors or by other teachers through classroom visits or perhaps when taking students to lunch, recess, or other locations. Substitute teachers also have a variety of safety-related responsibilities which include monitoring students for safety purposes, such as preventing or stopping fights; reporting and addressing hazards or other unsafe circumstances; detecting and promptly responding to student health issues; detecting and reporting student drug use or possession; and reporting suspected child abuse. As the Chief of the County's school district police explained, school personnel, including substitute teachers, are "on the frontlines of securing the campus and are often the first responders to any given incident."
According to the School District's Substitute Teacher Handbook, a substitute teacher's specific responsibilities include addressing student behavior and emergencies. Thus, for example, any complaint about student illness "should receive immediate attention." Student accidents must be reported immediately as well. And control of the classroom is characterized as "a primary concern." The Handbook further provides: "It is [the substitute teacher's] responsibility to discuss any limitation or restriction with the substitute contact before [the substitute teacher] begin[s] the assignment so that [the substitute teacher] will be prepared to provide safety and accountability for students in any situation and at all times." And the Handbook says that substitutes are "as legally responsible *1090 for students, equipment, and materials as is the regular teacher."
B.
In February 2017, Friedenberg sued the School Board in the United States District Court for the Southern District of Florida, claiming that the requirement of suspicionless drug testing of School District employment applicants violated the Fourth Amendment. She sought class action relief, describing the putative class as including "[a]ll job applicants for non-safety-sensitive positions with the Palm Beach County School District." Friedenberg sought declaratory and injunctive relief.
Friedenberg moved the district court for preliminary injunctive relief, arguing, among other things, that she could establish a substantial likelihood of success on the merits. After conducting a hearing, the district court denied preliminary injunctive relief. As an initial matter, the district court determined that Friedenberg had established standing to challenge only the application of the drug-testing policy to substitute teachers, not as to all School District employment applicants. Therefore, the court addressed only suspicionless drug testing of substitute teacher applicants. The district court also concluded that the School Board had established a special need to conduct suspicionless drug testing of substitute teacher applicants. It explained that even "a momentary lapse of attention ... could be the difference between life and death," and that while "the magnitude of the public safety risk presented by an impaired teacher is not comparable to that presented by an impaired railway operator or armed customs official," the special responsibility of substitute teachers for "the care of society's most vulnerable members" was distinct and notable.
The district court then determined that the balance of interests strongly favored the policy of suspicionless testing of substitute teacher applicants. And though Friedenberg's privacy interests were implicated in the testing regime, the district court concluded that the urinalysis was a "relatively noninvasive" process and the testing regime was "not unduly intrusive." The court found that "although the efficacy of the scheme is not beyond question, the need asserted by [the School Board]-the protection of the children under a substitute teacher's charge-is compelling indeed." Accordingly, Friedenberg had not established a substantial likelihood of success on the merits.
Friedenberg then filed this interlocutory appeal.
II.
We review the denial of a preliminary injunction for abuse of discretion.
See, e.g.
,
Siegel v. LePore
,
*1091
The Fourth Amendment protects the "right of the people to be secure in their persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. Undeniably the school district's urinalysis drug tests are searches that implicate the Fourth Amendment.
See, e.g.
,
Nat'l Treasury Emps. Union v. Von Raab
,
"The default rule in this context ... is that 'to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.' "
AFSCME v. Scott
,
When a special need is claimed, we are obliged to "undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties."
Our consideration of the merits then is twofold. Once a plaintiff has shown that the government conducted a search without individualized suspicion-which the School Board concedes-the burden shifts to the government to establish that it has a "special need" sufficient to warrant departure from the Fourth Amendment's baseline requirement of individualized suspicion.
See
III.
Neither the Supreme Court nor this Court has ever faced the question whether there is a sufficiently compelling need to justify the invasion of privacy entailed in suspicionless drug testing of public school teachers. But we are not writing on a blank slate. The Supreme Court has considered the constitutionality of suspicionless drug-testing regimes five times in the past thirty years. It has found special needs compelling enough to permit suspicionless drug testing of public school students participating in extracurricular activities and also of government employees whose work implicates public safety.
A.
For our purposes, the relevant precedent begins with the Supreme Court's declaration that, for Fourth Amendment purposes, public schools are unique. In
New Jersey v. T.L.O.
,
The Court weighed the student's privacy interests against "the school's equally legitimate need to maintain an environment in which learning can take place."
Balancing these competing values, the Court determined that the need for school administrators to preserve order tipped the scales against the student's interest in privacy. See
Going forward, the Court has taken to describing contexts, like schools, where the warrant requirement has been relaxed, as presenting "special needs." This terminology was coined by Justice Blackmun, concurring in the judgment in
T.L.O.
, who described the school setting as among "those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable...."
The "special needs" that justified warrantless searches in schools returned in two drug-testing cases that are highly instructive for our analysis today. In the first of these,
Vernonia School District 47J v. Acton
,
Vernonia
's reasoning differed from
T.L.O.
's, though, in that
Vernonia
also focused on the status of students, who it identified as "(1) children, who (2) have been committed to the temporary custody of the State as schoolmaster."
While "reasonableness" remained the touchstone for measuring the lawfulness of a Fourth Amendment search, the school setting and the status of students informed what would be reasonable: "the 'reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children."
Seven years later, in
Board of Education v. Earls
,
The Court elaborated on the unique nature of the school setting. Students have reduced privacy interests "in a public school environment where the State is responsible for maintaining discipline, health, and safety."
*1095 B.
In two cases that arose outside the school context, the Court identified still other versions of "special needs," and made it abundantly clear that adult government employees in some safety-sensitive positions could be required to pass suspicionless drug tests as a condition of their employment.
The first of these cases was
Skinner v. Railway Labor Executives Ass'n
,
Though the Court did not speak in comparative terms, the "special needs" presented in
Skinner
carried, in some ways, higher stakes than those the Court had identified in the school cases. The railroad employees were "engaged in safety-sensitive tasks" and the testing regime served not just to maintain order or promote a particular type of environment, but to "prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs."
On the same day
Skinner
was handed down, the Supreme Court also upheld the suspicionless urine testing of two distinct groups of safety-sensitive Customs Service employees: those applying for positions directly involved in drug interdiction and those applying for positions that would require carrying a firearm.
Von Raab
,
Von Raab
relied heavily on the unique functions performed by these Customs employees.
The Court concluded that, when balancing the interests involved, "the Government's need to conduct the suspicionless searches ... outweigh[ed] the privacy interests of employees engaged directly in drug interdiction, and of those who otherwise are required to carry firearms."
In this Court, we've said that "the principle we draw from
Skinner
is that government employees engaged in safety-sensitive tasks ... may be subject to suspicionless drug testing."
AFSCME
,
Only one time has the Supreme Court struck down a suspicionless drug-testing regime as being unreasonable. In
Chandler v. Miller
,
C.
In short, Supreme Court precedent boils down to this: searches must be reasonable; to determine whether a warrantless search is reasonable, we consider whether the government has demonstrated a "special need" to circumvent the warrant requirement, and, if so, we weigh this against the public and private interests at stake.
See
Lebron
,
IV.
To determine whether the government has demonstrated a "special need" justifying a departure from probable cause and warrant requirements, we first evaluate
*1098
the danger against which the testing regime is intended to guard; that is, the danger posed by drug-addicted teachers in the classroom. We conclude that a special need is evident. The danger posed by intoxicated teachers is significant and it is "readily apparent" that the School Board "has a compelling interest in ensuring" that teachers-including substitutes-are not habitual drug users.
Von Raab
, 489 U.S. at 670,
The School Board asks us to hold that substitute teachers occupy uniquely safety-sensitive positions or, alternatively, that that the public school context gives rise to a powerful need to protect students. We agree with the bottom line that a "special need" is present in this case, but would formulate it somewhat differently, as an intersection of the two possibilities, rather than as a direct outgrowth of one or the other. Teachers do not sacrifice as many rights upon entering a school as students do; and instructing schoolchildren is not as safety-sensitive as operating a railroad. Nonetheless, we find that, in the unique Fourth Amendment context of a public school, teachers are in a sufficiently safety-sensitive position so that guaranteeing a safe and effective learning environment presents a compelling need to justify suspicionless drug testing.
In order to evaluate the danger posed by substitute teacher drug use, we begin with the long-accepted notion that danger is measured by how likely it is that harm will occur
and
how serious that harm will be if it does occur. Here, the first variable, the probability of harm, is itself a function of the likelihood that a teacher will be intoxicated and the likelihood that a dangerous situation will arise. In most instances, one or the other would not, alone, cause the type of harm we see as relevant here. Our calculation does not end with this figure, though. As Judge Learned Hand famously put it, negligence is determined not just by the probability of harm but also by "the gravity of the resulting injury."
United States v. Carroll Towing Co.
,
To state the obvious, our schools have a singular custodial and tutelary responsibility for our nation's most precious resource-our children. Parents are compelled, under force of law, to place their children in the care of the schools. Our teachers-substitute or otherwise-are directly given the responsibility to ensure the safety and protection of our children. Each family sending a child into the care and custody of the schools is counting on these teachers not only to educate them, but to keep them safe. It is to them that we look to safeguard the classroom and protect our students. Like teachers, substitute teachers are on the front lines. After all, students are at school all day long. Teachers have close interaction with students as young as five and as old as eighteen for the better part of every school day for many years of their lives.
While we cannot predict when or where a substitute teacher will face a situation in
*1099
which a child's health or safety is at stake, we know with confidence that these situations will occur. There are many, many students in our nation's public schools: some 50.7 million of them this fall.
See
Fast Facts, National Center for Education Statistics, https://nces.ed.gov/FastFacts/. It takes no complex statistical formulation to recognize that serious emergencies arise all the time in the classroom and in the school yard: kids get sick, injured, or into fights. The public schools take prophylactic steps to ensure, as best they can, the safety of their charges. By law, each district school board in Florida must establish policies and procedures for safety, including safety training and risk assessment.
If schools are going to be able to handle emergencies that threaten children's safety, teachers will need to be able to identify and respond to emergencies quickly, decisively, and with sound judgment. To take one example among the many dangers that will arise, we know for sure that kids get sick. A child's illness may be benign or can be anything but benign. A child's fever may quickly develop and spike-it could be nonexistent in the morning and yet require medical attention before the end of the school day. A student may develop a life-or-death allergic reaction even more rapidly. The Centers for Disease Control and Prevention reports that four to six percent of children in this country have food allergies, often to foods as ubiquitous as peanuts, and their reactions may be life-threatening if not addressed quickly. Food Allergies in Schools, Centers for Disease Control and Prevention, https://www.cdc.gov/healthyschools/foodallergies/index.htm ("Early and quick recognition and treatment can prevent serious health problems or death."). There may be no time to waste in seeking help. Nor is there time to waste when a child falls into diabetic shock or suffers a seizure, fainting spell, or asthma attack.
Teachers must also expeditiously recognize and respond to violent situations. The hard fact of life is that during school hours, bad things can happen to kids, and those front-line responders most directly supervising students-our teachers and substitute teachers-must be able to respond properly. It is not remote, idle, or fanciful to posit with some confidence that students, particularly teenagers, will engage in conflict at school. When students get into fights, a teacher will likely be in the best position to stop it, to diffuse it before it turns serious, or to seek help if the situation intensifies. Sadly, we need only look to recent events to know that teachers may, at a moment's notice, become those most readily able to protect our students from deadly and immediate harm from outside the school as well. School shootings are a real and palpable possibility. They are not so remote as to be only a hypothetical: in the first half of this year alone, school shooting incidents resulted in nearly three dozen deaths and numerous injuries. Denisa R. Superville & Evie Blad, A Deadly School Year: 35 People Killed in School Shootings , Education Week, May 28, 2018, https://www.edweek.org/ew/articles/2018/05/30/a-deadly-school-year-35-people-killed.html.
As acute situations arise, and we know they will, the danger posed by leaving *1100 children, especially young children, in the care of an intoxicated teacher is profound. A teacher under the influence of drugs is significantly less likely to respond promptly, efficiently, and with sound judgment than a sober and clearheaded teacher. As we have said, it is not particularly likely that intoxicated teachers will regularly find themselves in front of a classroom. In some instances, if a teacher arrived at work high or drunk, a coworker might notice that something was wrong and would intervene-but we will not require the School Board to count on this, just at the Supreme Court did not rely on railroad workers to report one another. Since the School Board considers this a danger to be guarded against, we will consider their proposed solution, rather than waving away the problem.
The probability of harm is significant because it is a function not only of the relatively small chance of an intoxicated teacher in the classroom but also of the much larger chance that an emergency will occur. If a teacher who is responsible for the wellbeing and safety of a classroom of students is intoxicated on the job, there is a very realistic probability that a serious situation requiring a swift and effective adult response would emerge. Thus, we consider the gravity of the harm that could befall a child-not to mention that child's family-if the theoretically responsible adult fails to respond properly.
See
Knox Cty. Educ. Ass'n v. Knox Cty. Bd. of Educ.
,
Friedenberg acknowledges the gravity of the risk, but she argues that the risk is purely hypothetical and speculative. We think she's wrong about the probabilities of harm, but, in any event, profoundly mistaken when we also consider-as we must-the gravity of harm. We know with a high degree of confidence that serious problems will arise, that substitute teachers just like permanent teachers are the first and primary line of protection for minor students in the care of the public schools, and that an intoxicated guardian may well be unable to respond properly and promptly.
See
Chandler
,
The danger that would be posed by drug-using individuals overseeing our classrooms is, we think, concrete and substantial. The government, therefore, has a significant safety-based interest in regulating the conduct of teachers to ensure safety in the public schools.
See
Skinner
,
Common sense yields this conclusion. Running through relevant Supreme Court precedent is the idea that "special needs" may be observed because of an innate understanding of the problem presented. There was no evidence, empirical or otherwise, about an existing drug problem cited in
Von Raab
, yet the Supreme Court still said it was reasonable to test Customs Officials, whether they were involved in interdiction or carried firearms.
See
Von Raab
,
Although we rely heavily on the safety-sensitive Supreme Court precedents-
Von Raab
and
Skinner
-we also draw support for our conclusions from the cases addressing the drug-testing of students. These cases also establish that the government possesses far-reaching power in the unique setting of a school. The Fourth Amendment does not have equal force in the context of a school, owing to the strong government interest in maintaining order and creating an environment conducive to learning.
See
Vernonia
,
Teachers are not students, over whom the state acts
in loco parentis
,
see
Vernonia
,
Reasoning along similar lines, the Sixth Circuit has addressed and upheld the suspicionless drug-testing of public school
*1102
teachers.
Knox Cty. Educ. Ass'n v. Knox Cty. Bd. of Educ.
,
As we see it, then, the suspicionless testing of substitute teacher applicants addresses many of the risks that we have outlined. For one, routine testing of provisionally hired substitute teachers provides a layer of protection to ensure that the guardians, the front line responders in direct control of the classrooms, are alert and capable. If applicants are using drugs during the job application process, we think it altogether reasonable for a school district to be suspicious of what could happen once they assume the job-indeed, the school district would be seriously remiss in placing children in the care of such individuals without at least being informed of the nature of their drug use. What's more, it also seems to us that the school district may reasonably seek to impress upon its substitute teachers the importance of protecting the classroom environment and the school. We recognize that the policy only allows for testing once, on the front end of the job hiring process and before the substitute teacher may take up her place in front of a classroom. But this still has a salutary effect and is prophylactic, telling all prospective substitute teachers that drugs are not tolerated in the schools. Through this regime, the school district undeniably sends a powerful message and builds in an additional layer of deterrence.
Moreover, the state has an independent interest in keeping drug users out of schools stemming from its "custodial and tutelary responsibility for children."
Vernonia
,
Concurring in
Earls
, Justice Breyer explained that, in this role, schools "shoulder the burden of feeding students ... offering before and after school child care services, and providing medical and psychological services."
Earls
,
We recognize that there is a difference between a substitute teacher and a full-time classroom teacher. And, we note, the sufficiently compelling special need we recognize today is limited to the question before us: drug testing of provisionally hired substitute teachers. Substitute teachers, compared to full-time classroom teachers, may receive more regular supervision, which increases the potential that some school official may recognize when something is wrong with the substitute teacher. But at the end of the day, there is no real distinction between the responsibilities assumed by substitute teachers and full-time classroom teachers except for the amount of time they spend in the classroom. Substitute teachers, just like regular teachers, are the first responders in the classroom, and serve as the primary (and frequently only) caretakers for young children under the government's guardianship during the time they are at work. Their basic obligations are the same: to safeguard and teach those in their care.
Today we are asked to consider only the testing of substitute teachers, but we do not think that by recognizing a special need in this unique setting we have opened the floodgates to indiscriminate suspicionless searches. We have always required, as we do today, an exceptional showing of a special need to allow a suspicionless search, and not all government jobs present the same needs. We have repeatedly observed that the "special needs" calculus requires a careful, case-by-case examination of whether the duties and responsibilities surrounding the job are compelling enough to justify the invasion of privacy. In every case, the court must weigh privacy interests against the government's need. In some cases, depending on the job, a government employer might only have justification sufficient to support searching a workspace, as in Ortega . In other cases, as here, a more invasive search will be justified, possibly for similar safety reasons.
Courts are well-positioned to make these determinations and draw these distinctions on a case-by-case, job-by-job, search-by-search basis. Indeed, in
AFSCME v. Scott
,
Our courts are quite capable of distinguishing between the needs presented in different factual settings. We think a court can reasonably draw the line between a substitute teacher and another employee, say a janitor who simply cleans a school building in the evening, whose responsibilities do not involve safety and security, relate far less directly to students, involve profoundly different risks, or implicate more persuasive countervailing concerns. But when we examine the responsibilities of substitute teachers, we see the compelling interests the Supreme Court has identified in the public schools-the protection of children, the maintenance of a proper educational environment, and proactive efforts against student drug use including through good role modeling. These responsibilities are all uniquely vested in teachers, both substitute and permanent. And this is far from the broad testing regime rejected in
Chandler
. Here, the setting is unique, and the Supreme Court has recognized the uniqueness of the public school context. The state's concern is not the general enforcement of its penal laws but a proactive, protective, and tutelary concern for students.
See
Chandler
,
Friedenberg objects, however, that the causal relationship is not direct enough between an intoxicated substitute teacher's delayed reaction time in the case of an emergency and the possibility of harm to a child in the care of the state. But this wouldn't be the first time that causation is multiple and complex. Front-line responders in this unique setting likely will be called on to solve the problem, navigate around a dangerous and unfolding event, break up a fight before it escalates, seek out emergency medical treatment, or provide direction and as much protection as possible if an unthinkable emergency occurs. Thus, we conclude that there is a powerful special need in this unique setting justifying the imposition of a suspicionless drug testing regime for substitute teacher applicants.
V.
Once a special need has been established, controlling precedent requires that we weigh the competing private and government interests implicated by the search. We must evaluate the reasonableness of the search by "balanc[ing] the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context."
Von Raab
, 489 U.S. at 665-66,
In making this calculus we are satisfied that the intrusion on privacy has been reasonably minimized by the School District and that the reasons offered for the search are compelling. Again, it comes down to the fact that schools are different. Reasonable expectations of privacy depend on circumstance, and the government is justified in demanding more from those to whom our country's children are entrusted.
A.
The first factor we consider is the nature of the privacy interest at issue.
Vernonia
,
As the Court first explained in
T.L.O.
and reiterated in
Vernonia
and
Earls
, expectations of and interests in privacy are diminished by the unique context of schools.
T.L.O.
,
The field of public education is pervasively regulated in order to protect the students and to promote learning. Thus, for example, teachers and substitutes may be required to undergo criminal background checks (as they are required to do in Palm Beach County), or to obtain professional certifications of their fitness to oversee a classroom.
See, e.g.
,
Knox Cty.
,
*1106
Bodily
privacy is a different matter, but, where employees have safety-related reasons to inquire into their employees' physical wellbeing, the Court has upheld intrusions on even this. The Court has "not suggest[ed] ... that the interest in bodily security enjoyed by those employed in a regulated industry must always be considered minimal."
Skinner
, 489 U.S. at 628,
Teachers plainly step into a unique setting heavily regulated by the state on account of its profound social importance to the well-being of the nation. Given the unique role that teachers, including substitutes, play in this environment, we cannot say that they have the same privacy interests as adults in more typical contexts or even other government employees in similar contexts (i.e. janitors or some administrators).
See
AFSCME
,
B.
"Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of."
Vernonia
,
The testing regime employed by the Palm Beach School District is similar to those the Supreme Court has deemed "minimally intrusive."
Earls
,
Only two minor components of the School District's testing regime implicate intrusions beyond what the Supreme Court has deemed to be minimally intrusive. First, the School District's policy allows for searches of a drug-tested individual's wallet for evidence of tampering supplies,
if
the applicant chooses to keep the wallet on his person during the collection. Fla. Admin Code. R. 59A-24.005(3)(c)(5). This additional step appears to us to be narrowly pointed at preventing the use of tampering supplies, and a search of the wallet may be avoided by placing the wallet with the rest of one's belongings outside the stall. Second, the disclosure of medications before testing, as is required by the testing regime, was a consideration that raised "some cause for concern."
Vernonia
,
Overall, the drug-testing program employed by the School District is the type of intrusion the Supreme Court has found minimally invasive. The procedures for collection are fully consonant with those that have been approved in the past. In the face of these procedures, "the privacy interests compromised by the process of obtaining the urine sample are in our view negligible."
Vernonia
,
C.
Next we consider "the nature and immediacy of the governmental concern at issue here."
Vernonia
,
As we have explained at some length, the safety of schoolchildren and the maintenance of an environment in which education could take place are compelling government interests. The Supreme Court's previous student drug-testing cases confirm this. The unique concerns presented in public schools and involving the custodial care of children "should not disappear from the analysis of special need simply because the drug testing is of a school
*1108
employee rather than a student." Again, we determine that the government interests implicated today are weighty. And the government's interests also present sufficient immediacy. The Supreme Court itself has recognized as "an immediate crisis" the large-scale problem of drug addiction.
Vernonia
,
We conclude that the School District has presented a compelling need with sufficient immediacy. In
T.L.O.
, Justice Blackmun wrote of the "special need for an
immediate response
to behavior that threatens either the safety of schoolchildren and teachers or the educational process itself."
T.L.O.
,
D.
Finally, we consider the efficacy of the School District's testing regime. The mere fact that a drug test could conceivably be "beaten" by abstaining from drugs for a significant enough period of time does not necessarily render the test ineffective;
Von Raab
squarely rejected that argument. 489 U.S. at 676,
Friedenberg relies on
Chandler
, where the Court struck down a testing regime for candidates for state office, in part because it was glaringly ineffective and offered no realistic prospect of identifying any drug users over and above those who would likely be deterred already by the public scrutiny that comes with running for office.
See
Chandler
,
Here, the applicants have less control over when they are tested. Applicants *1109 cannot control when their applications are reviewed or when they receive conditional job offers. They must then undergo testing before New Employee Orientation (NEO), which the district court found was "set for a date certain." The record is not altogether clear on this point. Friedenberg said she received a conditional offer on February 21 and was scheduled for NEO on February 27, giving her less than a week to schedule her test. The School Board's director of recruitment and retention said under oath at her deposition that teachers "typically" must go to the first possible NEO and that the School Board "like[s] to make sure that they come" to that first possible date, as scheduled by the School Board. 3 However, she also said, in an earlier declaration, that the NEOs were available each week in March and April, and that Friedenberg could attend her NEO "on a later day or complete it online" if she passed a drug test or if the school board was prohibited from enforcing the policy by Court order. We see no clear error in the resolution of this apparent inconsistency and think that applicants here have substantially less ability to manipulate the test scheduling than the candidates in Chandler .
Moreover, we can say with confidence that the second consideration drawn from
Chandler
, the role of public scrutiny in discouraging drug users from running for office, is not present here. Substitute teachers are not subject to the kind of intense public scrutiny-"relentless scrutiny-by their peers, the public, and the press," in the words of the Supreme Court-that candidates for state office face.
Chandler
,
VI.
The long and the short of it is that we are satisfied that the testing regime adopted by the Palm Beach County School Board serves a preventive and deterrent function. When we balance all the interests as we are required to do, the School Board clearly has carried the day. Friedenberg has a diminished privacy interest owing to the unique Fourth Amendment context of the public schools. Plainly, the School Board has made only a minimal intrusion on that privacy interest. It has done so in the service of a serious and compelling need. And the testing regime appears to us be reasonably effective and altogether reasonable. Friedenberg has not established a substantial likelihood of success on the merits. On this preliminary record, and on these facts, we can discern no abuse of discretion in the district court's denial of a preliminary injunction.
AFFIRMED.
In relevant part, the safety-sensitive employee testing policy provides that "[a]ll applicants for employment in any covered position safety-sensitive position [sic] ... shall undergo drug and alcohol testing as a condition precedent to employment.... Any applicant who tests positive in the pre-employment screening ... is not eligible for employment with the District."
Technically, the drug tests at issue in
Skinner
were required and performed by private employers-railroad companies-but were conducted in accordance with regulations governing these employers that had been promulgated by the Federal Railroad Administration.
See
Skinner
,
Her testimony was as follows:
Q. When a substitute teacher is given a conditional job offer and they fulfill all the requirements that are remaining such as the drug test, then they need to go for a new orientation; right?
A. Correct.
Q. Do they typically need to go to the net new orientation?
A. Yes.
Q. Okay. They can't just say, oh, well, you know, I'll attend one in a few months?
A. No. We like to make sure that they come. They're scheduled is how we have it right now. [ sic ]
Reference
- Full Case Name
- Joan E. FRIEDENBERG, on Behalf of Herself and a Class of Similarly Situated Individuals, Plaintiff-Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, Defendant-Appellee.
- Cited By
- 5 cases
- Status
- Published