In a recent Federal District court opinion, Judge Nanette Laughrey issued a 62 page opinion that enjoins Linn State Technical College (College”) from implementing an unprecedented drug-testing program for nearly all students at the two-year college located in Linn, Missouri, a small mid-Missouri town. The opinion literally covers the waterfront with respect to drug testing of students for different types of student training programs/activities (and for that matter public employees who engage in similar activities). The opinion is a must read for anyone who is considering the adoption of a drug testing policy involving a government agency or for those who are concerned about suspicionless searches in violation of the Fourth Amendment.

Linn State College

The College offers a number of programs for about 1200 students with about five hundred new students entering each year. Programs were divided into four primary categories: each of which have further specialty areas some of which involve manual exercises that can be dangerous.  For example, students in the aviation maintenance program spend roughly 62% of their time doing hands-on training, where students work in close proximity to active propeller blades.  These students are also required to taxi airplanes.  Students seeking accreditation in the heavy equipment operations program spend between 51% and 72% of their time engaged in hands-on training.  This work involves operating Caterpillar D6R bulldozers and other heavy equipment weighing up to twenty-five tons.  An instructor in the industrial electricity department testified that students in his department spend about half their time engaged in hands-on functions.  This training involves dealing with live electricity and performing electrical services.  However for most students their training does not involve dangerous equipment or activities since they may be just sitting at a computer or a drafting table with a sharpened pencil.

Drug testing for work around airplanes OK

Part of the mission of the College is to prepare students for the working environment.  When the College adopted the Policy it did not cite any particular problems with drug use by its students and in fact during the College’s 50-year history it could not identify drug use among its students as a significant problem nor could the College show that drug use caused or contributed to any accident in Linn State’s history. The College does not have any greater prevalence of drug use among its students than any other college.

So why did the College decide to adopt a Policy for drug testing of nearly all of its students?  In the fall of 2011 the College decided that it would start a drug-screening program for all students who are newly classified as degree or certificate seeking and students returning after one or more semesters of non-enrollment at the College.  The Policy states that the purpose of the program is to provide a safe, healthy, and productive environment for everyone who learns and works at the College by detecting, preventing and deterring drug use and abuse among students. Furthermore, drug screening has become an increasingly important part of the work environment. The President of the Board stated that the Policy would increase enrollment because parents would send their children to a school with a drug free environment.

While all of the above sounds good, the Policy lacked substance and appears to have been adopted on a whim without any real thought to how the College would justify or defend the Policy based on the current status of the law. For example, the Policy hypocritically failed to include faculty members who administered the programs covered by the Policy. While the reasons given for the adoption of the Policy sounded lofty and noble the Policy failed to mention one single element needed to justify the Policy under the case law – like safety of the students and others. Really no predicate was established for the Policy.

As public officials the College should have been asking deeper questions like whether or not the Policy can be defended, how it can be defended, the probability of success, what will it cost in attorney fees paid to the other side, and what will the College have to pay to defend the lawsuit? Remember in a civil rights lawsuit the government agency may not only have to pay its own attorney fees but also the other side costing hundreds of thousand of dollars. Ironically the College now has on its Home page a solicitation for donations to defend the policy.

As a condition of admission to the College, students were required to sign a form acknowledging the new drug-testing policy and that refusing to be screened would result in administrative or student-initiated withdrawal. In effect this was a mandatory, suspicionless drug-testing program constituting a search within the meaning of the Fourth Amendment, requiring the College to demonstrate a legitimate special need for drug testing that is sufficient to outweigh the students’ individual privacy expectations against the state.

The ACLU and a number of other groups hotly contested the drug-testing program from day one. Initially, in 2011 the Federal District court granted a preliminary injunction to the Plaintiffs who challenged the policy as overly broad, based on the likelihood of success, which was reversed by the 8th Circuit on the grounds that a challenge based on the facial invalidity of the Policy required that the Plaintiffs must show that “no set of circumstances exists” in which the drug-testing would be valid. As a consequence the Plaintiffs amended their petition challenging the Policy “as applied” to current students.

In order for the Policy to be valid the opinions by the District Court and the 8^th Circuit stated that the safety risks must pose such a threat that “even a momentary lapse of attention can have disastrous consequences,” In addition, in order to override the ordinary requirements of the Fourth Amendment, the safety risks at issue must be of a unique or unusual degree. Finally, the safety risk must be to others, as opposed to the individual student performing the task.

No test required for many programs due to lack of safety risk.

After the trial, the Court determined that an injunction was warranted with respect to those Plaintiffs whose Fourth Amendment rights were, or would be, violated by the application of Defendants’ drug-testing policy except for students enrolled in the Aviation Maintenance, Electrical Distribution Systems, Industrial Electricity, Power Sports, and CAT Dealer Service Technician programs. In addition, the College was ordered to return the fees collected by Defendants in connection with the unconstitutional application of Defendants’ drug-testing policy.

The programs offered by the College  are excellent and are clearly designed to meet a demand in Missouri and the United States for highly trained workers who have needed technical skills. The concern, I have expressed in this Post is not with the College or its excellent programs or the objective of eliminating drugs from the work force or the student population but instead the folly of not properly analyzing the limits of government power in establishing a policy that was unlawful resulting in a  waste of public resources defending the impossible.

Howard Wright @ 2013