It now seems that the efforts of Linn State, to establish a mandatory, suspicionless drug-testing program for all students has come to an end (assuming that the United States Supreme Court will not take this case). A recent en banc decision by the Eighth Circuit Court of Appeals set aside an earlier decision by a panel for the Eighth Circuit. The en banc decision by the Eighth Circuit upheld the federal district court’s decision, which struck part of the drug testing program because it did not meet the “special needs” test established by the United States Supreme Court while upholding other parts where Linn State showed there was a special need.
If you are working on a matter involving drug testing of employees, students or other persons you do not have to travel much farther then the Linn State case for answers. The strength of this case is the well reasoned district court’s 62-page opinion, affirmed by the Eighth Circuit, which provides an analysis of many different programs where special needs are considered.
Background: Before discussing the recent en banc decision by the Eighth Circuit some background concerning the extensive litigation involving the Linn State drug testing program is useful. Around 2011, the Board of the Regents of Linn State Technical Community College, a state agency adopted a drug-testing policy for the fall of 2011 that required all students enrolled at the Linn State campus or any related campus to submit to periodic drug testing. (Even though the institution’s name has changed I will continue to refer to the institution as “Linn State”). This policy required as a condition of admission to Linn State that students acknowledge the drug policy and that refusing to be screened for drugs would result in administrative or student-initiated withdrawal. This policy was a mandatory, suspicionless drug-testing program constituting a search within the meaning of the Fourth Amendment, requiring Linn State to demonstrate a legitimate “special need” for drug testing that was sufficient to outweigh the students’ individual privacy expectations against the state.
This program was immediately challenged in federal district court as a violation of the Fourth Amendment, which protects the right to be free from “unreasonable searches and seizures.” The federal district court enjoined the drug testing policy, which was immediately appealed to the Eighth Circuit Court of Appeals. The Eighth Circuit reversed directing the district court to review each Linn State program based upon the specifics of the program and the application of the drug policy to determine if any of the programs met the “special need” exception as defined by the United States Supreme Court. The district court was directed to review each program to determine if Linn State could show that there was: “(1) a safety risk where the activities performed posed a threat that “even a monetary lapse of attention could have disastrous consequences”; (2) the risk at issue were already unique or unusual degree; and (3) a safety risk to others as distinguished from those performing the task.”
Applying the above standards, the District Court concluded that programs, which involved hands-on training in close proximity to active propeller blades; programs where students are required to taxi airplanes; students seeking accreditation in heavy equipment operations, which involved hands-on training with bulldozers and heavy equipment weighing up to 25 tons; power sports; and hands-on training with electricity and live electrical services qualified as a “special need.” The rest of the programs, which did not involve dangerous equipment or activities, like sitting at a computer or a drafting table with a sharpened pencil did not qualify as a “special need.” See my 2014 Post discussing in more detail the district court’s opinion.
About a year ago, a panel for the Eighth Circuit unexpectedly reversed the district court’s decision holding that due to the uniqueness of the Linn State’s programs, (where hands-on training for all programs was emphasized based upon the expectation that the students would immediately enter the workforce) a suspicionless a drug testing program could be applied to all students enrolled at Linn State. This opinion was unprecedented, because no other court had ever approved a government authorized drug-testing program for all students based upon general statements by recognized health authorities and agencies that drugs are a serious threat to the health and safety of the population. (Everyone recognized that drug abuse was a serious problem although it was not sufficient to overcome the burden placed on individuals to be free from unreasonable searches when a special need had not been demonstrated.) See 2016 Post discussing the opinion issued by the panel.
En Banc Opinion – Special-Needs: The United States Constitution prohibits searches without individualized suspicion except in well-defined circumstances where there has been a demonstration of a “special need” beyond the normal needs of law enforcement. In those cases where special needs have been shown, “it is necessary to balance 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.”
Balancing Test: Linn State argued that the need to enhance safety and the need to foster a drug-free environment constituted the “special need” that justified a drug testing all students without any individualized suspicion of drug use. In determining whether or not the special–needs requirement has been satisfied, the courts must engage in “a context–specific inquiry” by examining competing private and public interests. The special need for drug testing must be substantial and important “enough to override the individual’s privacy interest” to be free from unreasonable searches under the Fourth Amendment interest in safety can support a special need based upon a factual showing that the activity is unsafe as to others. This is particularly true for persons who work for the government in areas where there is a recognized potential for alcohol or drug abuse on the job and that such use can result in accidents or danger to others.In the Linn State case there was no showing that there was a drug or alcohol abuse problem by the students. In addition, many of the programs presented no safety risk.
Based upon the examination of the programs offered by Linn State by the District Court, the Eighth Circuit affirmed the District Court’s decision based upon individualized examination of each program. This examination by the district court showed that the reasons offered for the drug testing demonstrated that only a few programs met the special needs test, others did not. Kittle-Aikeley v. Strong, (8th Cir,. 13–3264 and 14–1145, 12/22/16)
The Linn State effort to establish a drug testing program, for all students, was a misguided attempt to limit the right of students to be free from unreasonable searches. The drug testing for all was doomed to fail from the outset because it was against all of the court precedents.
Howard Wright© 2017
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