Suspicionless Drug Tests of Personnel in Schools After Parkland: MSD Strong…er Than the 4th Amendment?

By I. Jeffrey Pheterson

Does the safety of our children prevail over the privacy rights of their substitute teachers? The US Eleventh Circuit Court of Appeals recently held that public schools may require urine tests for all applicants to substitute teaching positions—even without any unique reason or particular suspicion that would necessitate a drug test.

Judge Stanley Marcus, writing for the Eleventh Circuit panel, shares his official opinion on the matter succinctly and engagingly:

“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.”

Friedenberg v. School Board of Palm Beach County, — F.3d —, 2018 WL 6694799 (11 Cir. December 20, 2018)

The Eleventh Circuit affirmed the district court’s denial of a preliminary injunction sought by a class of applicants for substitute teaching positions, who claimed that the school district’s pre-employment drug and alcohol testing policy violated their Fourth Amendment rights. The Court concluded that the school district established a special need justifying the suspicionless testing, and that the plaintiff failed to show a substantial likelihood of success on the merits.

In prior decisions, the US Supreme Court laid out the basic rules for evaluating government-mandated drug and alcohol testing where individualized suspicion did not exist. Such testing constitutes a “search” within the meaning of the Fourteenth Amendment and is only permissible if determined “reasonable” in a case-specific and fact-intensive inquiry. The government must establish a “special need” for suspicion-less testing, and the strength of the governmental interest is measured and balanced against the nature of the individual privacy interest infringed and the nature of the infringement.

In concluding that the district’s testing program was lawful as applied to substitute teachers, the Eleventh Circuit first observed that a number of US Supreme Court cases involving “searches” of students, two of which involved drug testing, established that the uniqueness of the public school setting justified a lowered expectation of privacy, as the need to ensure protection of children was involved. In other words, the fact that substitute teachers are applying to work with children justifies a more invasive approach to their privacy rights. They can be required to submit to a drug test before working with children in schools, even if they have not caused suspicion or given a reason to necessitate their testing.

While those earlier cases involved students, the Court concluded that the school environment also impacted the privacy analysis regarding personnel in that same setting. The Court noted that public schools assume control of these children with responsibility in loco parentis (in the place of a parent) for student health and personal safety. When in their care, they must act toward these children in the place of—or as if they were—their parents, which is a unique legal obligation. As a parent, would you want to drug test anyone you planned to leave your young children with, if you could?

Applying a balancing test, the Court concluded that the responsibilities of instructional personnel to maintain order in the classroom and to respond immediately to any health or safety concerns arising during the school day—particularly given an increasing threat of gun violence in schools—established a special need, the strength of which was sufficient to overcome the lowered privacy rights existing in the school environment and the “minimally intrusive” nature of urine-based drug testing (without the need for needlesticks and exposure to bloodborne infections, for example).

Thus, the Court in this case adopted the “school environment” doctrine applicable to students to the privacy expectations of instructional personnel, and its conclusion was supported by the expectation that teachers perform a limited “safety-sensitive” role. This case is consistent with a similar holding from a different federal Circuit Court.

In balancing the Constitutional rights of applicants for substitute teaching against the perils of students in our post-Marjory Stoneman Douglas era, safety and security for the many (children) prevail over privacy rights of the few.

This, it appears, is part of being MSD Strong.

Jeffrey Pheterson is a partner atWard Damon, a multi-disciplined law firm primarily serving South Florida. Jeff is based in the West Palm Beach office and focuses on labor and employment law, business and corporate law, and complex commercial litigation as well as healthcare law, administrative law and probate litigation. If you need help with business matters or labor issues, you may reach Jeff at or 561-842-3000.

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