Linn State, a two-year technical college in Linn, Missouri, adopted a mandatory drug screening policy:
“Linn State Technical College will begin a drug screening program in the fall semester of 2011 for students who are newly classified as degree or certificate seeking and degree or certificate seeking students returning after one or more semesters of non-enrollment at the Linn State Technical College campus or any Linn Technical College location.”
The drug screening policy was challenged in federal district court as a violation of the Fourth Amendment, which protects the “right of the people” to be free from “unreasonable searches and seizures” by the government. What is reasonable? Reasonableness under the Fourth Amendment generally requires individualized suspicion that frequently takes the form of a warrant that is based on probable cause. A suspicionlesss search is valid if it falls within the “special needs” exception.
In 2013, a three-judge panel of the 8th Circuit reversed a preliminary injunction granted by the district court because the 8th Circuit could not determine if the above drug policy was invalid as to all of the programs offered by Linn State (Linn State1). The 8th Circuit in Linn State1 suggested that the more appropriate legal theory was to review each program based upon the specifics of its application in the context of the Linn State drug policy and Supreme Court exceptions to suspicionless searches under the “special needs” exception.
District Court Decision
The district court, based upon the opinion in Linn State1 and Supreme Court precedent, concluded that in order to meet the “special needs” exception Linn State was required to show: (1) a safety risk where the activities performed pose a threat that “even a momentary lapse of attention can have disastrous consequences”; (2) the safety risks at issue must be of a unique or unusual degree; and (3) the safety risk must be to others, as opposed to the person performing the task.
After examining all of the programs offered by Linn State the district court held that Linn State could conduct drug testing in programs for Aviation Maintenance, Industrial Electricity, Electrical Distribution Systems, Power Sports, and CAT Dealer Service Technician because these programs are unique, and a momentary lapse of attention could have disastrous consequences to others. For a more detailed discussion of the district courts’ decision see earlier Post by clicking here.
The contrast drawn by the district court between programs that met the three-part test compared to programs that did not meet the test could not be starker. Imagine a student working around airplanes with rotating propellers, large trucks with chair lifts operating around power lines and extremely large pieces of construction equipment working on campus or at a construction site versus a person sitting at a desk learning computer programming, design drafting, network systems technology or other similar programs. The district court noted that not all activities that present safety threats meet the special needs test because the activity must be unique. For example, driving a car is obviously a safety threat to others and yourself, where a momentary lapse of attention can have disastrous consequences; however, the Supreme Court has made it clear that you can not conduct suspicionless searches for all persons who have driver’s licenses.
Linn State again appealed the district court’s decision to the 8th Circuit, which upended legal, thinking (at least mine) by holding in a 2 to 1 decision that suspicionless drug testing for all 1200 students attending Linn State, was constitutional (Linn State2). The 8th Circuit concluded that:
“These purposes–safety concerns juxtaposed with educational concerns–are not analytically distinct and establish a special need sufficient to support the balancing of interests necessary in these circumstances.” (Emphasis Added)
Really! Is working with airplanes, high power lines and large construction equipment the same as computer programming, design drafting, network systems technology when safety concerns are juxtaposed with educational concerns? The comparison of programs that are very dangerous to programs that are extremely safe defies common sense.
To justify this, the 8th Circuit noted that Linn State was unique in its vocational focus: “The very nature of these programs and the unique vocational focus of the college itself involves dangerous aspects and creates safety risks for students under the influence of drugs or alcohol, as well as others.” Seems like the Court was spreading educational angel dust over all of the program, no matter how minimal, to reach a result.
The dissent in Linn State2 reasoned that the majority Opinion treats all students “as one homogeneous mass to assess overall constitutionality.” This “all or nothing analysis” by the majority Opinion forces students to give up their constitutional right to be free from suspicionless searches when they are engaged in programs that clearly do not individually meet the special needs test. The dissent in the Linn State2 also argued that the court should be guided by the earlier opinion in Linn State1.
What happens next?
The Plaintiff’s may file for a rehearing or they may file a request that the full 8th Circuit hear Linn State2 en banc, which usually involves 12 judges on the panel. Six judges on the 8th Circuit have already rendered opinions. Two judges voted in Linn State2 to uphold the entire drug testing program and one judge would have affirmed the district court decision distinguishing between programs based on application of the three part test. Three judges in Linn State1 offered no opinion concerning the validity of the entire program although they clearly indicated that some parts might qualify as a special exception to suspicionless searches.
Plaintiff’s can be expected to file a motion to rehear the case before the panel that heard Linn State2 or before the full Circuit en banc (usually 12 judges). If these motions fail it would seem that Plaintiff would file a petition for a writ of certiorari before the United States Supreme Court. Stay tuned!
Governmental agencies should consider delaying adoption of a drug testing policy similar to Linn State, until there is a final decision. A campus wide drug testing program for all students, a laudable goal, plows new legal grounds making it difficult to predict with any certainty the final outcome. In addition, the opinion of the 8th Circuit in Linn State2 was very limited based upon the uniqueness of Linn State making it very difficult to determine if its application in slightly different circumstances is valid. It is also important to distinguish between worthy policy goals and the legal realities embedded in the Fourth Amendment to the United States Constitution, which protect the privacy of citizens from unwarranted suspicionless searches.
Howard Wright© 2015
You may find the following Posts pertaining to search and seizure of interest.
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Does a dog get a free sniff?; and