SCHOOL LAW

A Measured Response: An appellate court makes the right call on drug
testing for employees.

The U.S. Supreme Court's decisions in 1995 and 2002 to uphold random,
suspicionless drug testing of student athletes, and then of students in any
competitive extracurricular activities, answered some questions about the
constitutionality of drug testing.

At the same time, they generated other questions: Does the Fourth Amendment
permit random drug testing of teachers? How about random testing of
students in any extracurricular activities? How about random testing of all
students?

We'll have to wait for future cases to answer the questions about testing
students. In the meantime, a case from Kentucky, Crager v. Board of
Education of Knott County, Kentucky, tackles the first question: Does the
Fourth Amendment permit a school district to require teachers and other
school employees to submit to random, suspicionless drug testing?

Knott County, in eastern Kentucky, has nine schools and -- according to
U.S. District Judge Danny C. Reeves -- an extensive drug problem. In his
opinion in this case, Judge Reeves quoted a newspaper article that
described the area as "the prescription-painkiller capital of the United
States, a place where narcotics such as OxyContin and Vicodin pour in at
much higher rates than in Miami, Detroit or Los Angeles."

Reeves noted that the federal government has designated Knott County as a
"High-Intensity Drug Trafficking Area." In his testimony, Superintendent
Harold Combs said seven incidents of suspected drug abuse by faculty and
staff had occurred in the district during his eight-year tenure -- a large
number for a small district, according to Judge Reeves.

Before January 2004, the district used a suspicion-based drug-testing
procedure for teachers, but the county's problems with substance abuse led
the board to adopt a new policy that calls for random, suspicionless
testing of 25 percent of all district employees who perform
"safety-sensitive" jobs.

In March 2004, Carol Crager, a tenured elementary school teacher who had
worked in the district for 14 years, sued the school district in U.S.
District Court, seeking to halt enforcement of the new
Drug-Free/Alcohol-Free Schools policy. Crager contended that the policy
violates the Fourth Amendment's prohibition against unreasonable searches
and seizures.

A 'Safety-Sensitive' Job

In a well-reasoned opinion, Judge Reeves upheld the Knott County policy
after looking for guidance to earlier decisions by the U.S. Supreme Court
and the 6th U.S. Circuit Court of Appeals. (Kentucky is one of four states
in the 6th Circuit, along with Tennessee, Ohio, and Michigan.)

In Skinner v. Railway Labor Executives Association (1989) and National
Treasury Employees Union v. Von Raab (1989), the Supreme Court upheld drug
testing of railroad and federal customs employees. The testing applied to
railroad employees who were involved in an accident or suspected of drug
use and to customs employees who were engaged in drug enforcement, carried
guns, or handled classified materials.

In Von Raab, the Supreme Court explained that the Fourth Amendment permits
a government agency to engage in warrantless searches without probable
cause when wrongdoing is suspected. Even without individualized suspicion
of wrongdoing, it is allowed when "special needs" arise -- needs in which
"the privacy interests implicated by the search are minimal, and where an
important governmental interest furthered by the intrusion would be placed
in jeopardy by a requirement of individualized suspicion."

According to the Supreme Court, special needs can arise when a job is
"'safety sensitive,' that is, when a job involves the 'discharge of duties
fraught with risks of injury to others [such] that even a momentary lapse
can have disastrous consequences.'" When a job is "safety sensitive," the
court noted, an individual's privacy expectations must be balanced 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" for drug testing.

In Knox County Education Association v. Knox County Board of Education, a
1998 case, the 6th Circuit upheld a Tennessee district's policy that called
for suspicionless drug testing of teachers and certain other school
employees because they performed safety-sensitive jobs.

Knox County's policy called for testing any employee based on reasonable
suspicion of drug abuse. Testing without suspicion was permitted for
employees in safety-sensitive jobs: teachers, principals and assistant
principals, teacher aides, secretaries, and bus drivers. Suspicionless
tests were performed on employees who already worked in safety-sensitive
jobs or were transferring to such jobs. Applicants for such jobs also were
subject to testing.

In upholding Knox County's policy, the 6th Circuit explained that teachers
and administrators are responsible for ensuring students' safety and
shaping their values. Being impaired by drugs, the court wrote, can
undermine the effectiveness of teachers and administrators in preventing or
responding to dangerous conduct or accidents involving students.

"Simple common sense and experience with life tells us that even a
momentary lapse of attention can have disastrous consequences," the court
observed, ruling that the heavily regulated work of teachers and
administrators reduced their legitimate expectation of privacy.

Using that reasoning, the 6th Circuit ruled that the Fourth Amendment
permits suspicionless drug testing and does not require proof of a drug
problem to justify it. As a result, the 6th Circuit decided, the Knox
County policy was reasonable even though there was no evidence of drug
abuse by teachers or other professional employees.

A Necessary Policy

Judge Reeves readily applied the 6th Circuit's precedent in the Knox County
case to uphold the Knott County testing program. Although the 6th Circuit
had ruled that Knox County's policy passed muster even without evidence of
a substance abuse problem, Judge Reeves noted the significant drug abuse
occurring in Knott County.

Reeves observed that the Knott County school board had taken sound
precautions to ensure the testing program's reliability and
confidentiality. The board had contracted with a private drug-testing firm
that looks for evidence of the substances that are most frequently abused
in the county. A Medical Review Officer (MRO) -- a physician who is board
certified in toxicology and substance abuse testing -- with 10 years'
experience in reviewing results supervises the program.

An employee selected for testing provides a urine sample in a private room.
If the person administering the test suspects tampering, an observer of the
same gender monitors the employee during urination. A fully certified
laboratory analyzes the urine sample.

Under Knott County's policy, after two positive tests, the MRO talks with
the employee to determine whether results were due to a legitimate, medical
use of drugs. If the employee consents, the MRO also speaks with the
employee's physician.

The policy allows only the school district and the company to use the test
results, which cannot be disclosed to a third party. Superintendent Combs
testified that the company sends him the results over a dedicated fax
machine in his office and they are kept in a locked safe. The
superintendent personally tells employees about positive results.

If testing shows that an employee has violated the drug abuse policy, Knott
County notifies the Kentucky Educational Professional Standards Board, but
the district does not notify law enforcement. (Judge Reeves explained that
in Board of Education of Independent School District No. 92 of Pottawatomie
County v. Earls, a 2002 case that upheld random testing of students
involved in extracurricular activities, the Supreme Court suggested that
reporting results to law enforcement might weigh against a policy's
constitutionality.)

Judge Reeves also discussed the random nature of the test. In the earlier
Knox County case, the 6th Circuit suggested (without deciding) that
randomly testing employees would weigh against a policy's
constitutionality, but Reeves observed that the Supreme Court had never
struck down a drug-testing program solely because it was random.

Reeves said Knott County's testing, because it was random, made it more
effective as a way to deter and detect drug abuse. "Suspicionless tests,"
he wrote, "ensnare more users and have a greater deterrent effect, thus
improving school safety." After all, an employee who abuses drugs could
easily evade a scheduled testing program by temporarily stopping use
beforehand to avoid detection.

Forcing districts to suspect drug use before testing employees would put an
undue burden on administrators, coworkers, and students. They might not be
able to detect drug use, and even if they suspected it, coworkers and
students might be reluctant to report their suspicion. Principals, Reeves
noted, usually are too busy to monitor employees for possible drug impairment.

Whether an employee drug-testing program is practical or necessary is a
policy question for school boards. On the legal question, I agree with
Judge Reeves' decision. The Knott County school board faced up to the
reality of drug abuse as a serious problem. The board's policy calls for
random testing only 25 percent of safety-sensitive employees and puts
appropriate limits on the disclosure of positive results. As Judge Reeves
concluded, the result is a measured response to a genuine problem.

Benjamin Dowling-Sendor, an authority on school law, is an assistant
appellate defender of North Carolina in Durham.