Opinion handed down December 7, 2015; corrected December 9, 2015; vacated February 18, 2016.
In 2011, Linn State Technical College enacted a mandatory drug test policy.[1] The purpose of the policy was to ensure a safe and healthy environment for students and faculty frequently engaged in the handling and operation of heavy machinery, as well as deterring drug use of students preparing to enter highly regulated, safety-sensitive fields.[2] After surviving a facial Fourth Amendment challenge, the drug test policy was challenged on an as-applied basis.[3] The trial court held the policy constitutional, but only as applied to educational programs involving a particularly high safety risk, which then required the trial court to determine which technical programs fell into such a category.[4]
The U.S. Court of Appeals for the Eighth Circuit reversed the trial court, determining that a program-by-program analysis was unnecessary, and held that the drug-test policy is constitutional as applied to all Linn State students.[5] Ruling under the premise that drug use and the operation of any machinery is a recipe for harm, the court determined that Linn State’s interests in providing a safe atmosphere trumped the students’ privacy interests against being tested for drugs.[6]
Recently, the Eighth Circuit granted a motion for rehearing en banc, vacating this opinion, and momentarily leaving this issue of the law in limbo.
I. Facts and Holding
Linn State Technical College, a state sponsored two-year technical college located in Linn, Missouri, offers mechanical, electrical, civil, and computer programs.[7] One of Linn State’s goals is for students to spend seventy-five percent of class time working in the field doing hands-on training.[8] Students worked in close proximity to active propeller blades, operated bulldozers, and received training with live electricity.[9]
In light of the constant use of dangerous and heavy machinery, Linn State adopted a mandatory drug-screening policy for incoming students.[10] Linn State stated the purpose of the policy was “to provide a safe, healthy and productive environment for everyone who learns and works at Linn State by detecting, preventing and deterring drug use and abuse among its students.”[11] If a student tested positive, he or she would be afforded the opportunity to test again forty-five days later, needing to test negative to remain enrolled.[12] The test results could not serve law enforcement purposes or be revealed to law enforcement personnel.[13]
A group of students filed suit against Linn State, alleging the drug-test policy violated the Fourth Amendment.[14] After failing to obtain a preliminary injunction on the basis of a facial challenge to the policy, the students sought an injunction based on an argument that the policy was unconstitutional as applied to certain educational programs.[15] After conducting a thorough analysis of each educational program, the district court upheld the drug-test policy as applied to some programs, such as aviation maintenance and industrial electricity.[16] However, the district court held that the policy was unconstitutional as applied to a great number of programs, including heavy equipment technology, construction and civil technology, and electrical power generation.[17]
Following Linn State’s appeal, the Eighth Circuit reversed, holding that the drug-test policy was constitutional as applied to all Linn State students.[18] The Eighth Circuit determined that Linn State had a special need to test for drug use given the nature of the hands-on work done by students on a regular basis and its duty to provide a safe environment for students and faculty.[19] The Eighth Circuit then held that that special need outweighed the students’ privacy interests and remanded with instructions for dismissal of the case.[20]
However, the Eighth Circuit granted a motion for rehearing en banc and vacated the opinion.
II. Legal Background
The ultimate test for whether a governmental search complies with the Fourth Amendment is reasonableness.[21] Searches may be conducted without probable cause if the state can show that the search serves a special need, beyond ordinary law enforcement.[22] Once a special need is shown, it is then balanced with competing privacy interests to determine if the search complies with the Fourth Amendment.[23] In conducting the balancing test in the school-drug-test setting, courts must consider three factors: “(1) the nature of the privacy interest allegedly compromised by the drug testing; (2) the character of the intrusion imposed by the policy; and (3) the nature and immediacy of the government’s concerns and the efficacy of the Policy in meeting them.”[24]
Mandatory, suspicionless drug testing has survived Fourth Amendment scrutiny in both the safety-intensive industry setting[25] and the educational setting.[26]
In a previous facial challenge to the policy made by the students in Barrett v. Claycomb,[27] the U.S. Court of Appeals for the Eighth Circuit determined that Linn State’s policy was not unconstitutional as applied to all Linn State students because: (1) the public has an interest in deterring drug use in safety-intensive programs; (2) some students were training to enter fields already regulated with mandatory drug tests; (3) Linn State’s drug-test program was relatively nonintrusive; and (4) the need to prevent intoxicated students from operating dangerous machinery warranted the drug test policy.[28] However, since the students had made a facial challenge to the policy, the court in Barrett only needed to hold that the drug-test policy was valid as applied to some students, specifically those seeking accreditation in programs using exceptionally dangerous machinery.[29]
III. Instant Decision
The Eighth Circuit first analyzed whether Linn State had a special need sufficient to survive a Fourth Amendment balancing test.[30] The Eighth Circuit commented that it was error for the district court to only consider deterring drug use in programs posing a significant safety risk as a special need.[31] The court determined that anyone using drugs at Linn State, “where a large percentage of the students on campus are performing hands-on work in their industrial programs on a daily basis” posed a significant risk of harm to intoxicated students, sober students, faculty, and staff.[32] The Eighth Circuit deemed it unnecessary to nitpick which programs were more dangerous than others, because the differences were slight and it is plainly obvious that any operation of any machinery while under the influence is dangerous.[33] The court held that Linn State’s interest in providing a safe work environment for its students and faculty constituted a special need sufficient to conduct a balancing test of Fourth Amendment interests.[34]
Next, the Eighth Circuit conducted a balancing test between Linn State’s interest in providing a safe environment and the students’ privacy interests.[35] While noting that college students’ privacy interests are generally comparable to those of adults rather than younger students, the highly regulated and safety-intensive nature of the technical fields taught at Linn State somewhat diminished those privacy interests.[36] The court then briefly stated that the intrusiveness of the drug-test policy was minimal.[37] Finally, the court reiterated that drug abuse was a dangerous problem in safety-sensitive vocational fields.[38] The court concluded the balancing test weighed in favor of Linn State’s drug test policy and remanded the case with instructions to dismiss.[39]
In his dissenting opinion, Judge Bye relied on language in Barrett indicating that only some of Linn State’s students have a diminished expectation of privacy – those students enrolled in courses with high safety risks.[40] Judge Bye argued that the trial court was correct to do a program-by-program analysis of the courses offered at Linn State.[41] Finally, Judge Bye conducted his own Fourth Amendment balancing test, coming to the opposite conclusion of the majority on each issue.[42]
The Eighth Circuit subsequently granted a motion for rehearing en banc, effectively vacating this opinion.
IV. Comment
In light of the court’s order granting a hearing en banc, the constitutionality of Linn State’s drug test policy appears to have reverted to its Barrett status – the policy is certainly valid as applied to students engaged in particularly dangerous fields, but its validity remains uncertain as applied to all students.
The exercise of conducting a program-by-program analysis for each individual educational program at Linn State is a taxing venture. Further, it is foreseeable that the requirement for such inquiry will lead to inconsistent results, providing inadequate guidance for technical colleges as to which programs involve dangerous enough equipment to warrant a drug test. The court’s opinion provides clarity for technical colleges, providing that any school offering a majority of its curriculum in a hands-on, safety-intensive manner may take steps to ensure that students are in the correct state of mind when operating dangerous machinery.
Rather than requiring trial courts to parse the dangerousness of electrical power generation and industrial electricity, the opinion of the court set a reasonable rule for technical colleges. The use of any machinery by an intoxicated person can result in a very dangerous and harmful situation. Persons using such equipment should never expect to be allowed to do so when under the influence of drugs or intoxicants. When the safety of students and faculty is at risk, it is better to err on the side of safety, rather than relying on a trial judge to determine which instruments are dangerous enough to warrant a drug-test.
– Joe Krispin
[1] Kittle-Aikeley v. Claycomb, 807 F.3d 913, 917 (8th Cir. 2015).
[2] Id.
[3] Id. at 918.
[4] Id. at 919.
[5] Id. at
[6] Id.
[7] Id. at 917.
[8] Id. 926.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 918.
[13] Id. at 917.
[14] Id. Students who were a part of the Heavy Equipment Operations and Commercial Driver’s License programs were not affected by the ruling in this case, as they were already subject to separate drug-testing requirements. Id. at 919.
[15] Id.
[16] Id. at 919.
[17] Id.
[18] Id. at 926.
[19] Id. at 923.
[20] Id. at 926.
[21] Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).
[22] Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989).
[23] Barrett v. Claycomb, 705 F.3d 315, 321-322 (8th Cir. 2013).
[24] Id. at 322.
[25] Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 620 (1989).
[26] Vernonia, 515 U.S. at 648-656.
[27] Barrett, 705 F.3d 315.
[28] Id. at 322-323.
[29] Id. at 323.
[30] Kittle-Aikeley, 807 F.3d at 921.
[31] Id.
[32] Id. at 922.
[33] Id. at 922-23.
[34] Id. at 923.
[35] Id. at 923-24.
[36] Id. at 924.
[37] Id. at 925.
[38] Id. at 925-26.
[39] Id. at 926.
[40] Id. (Bye, J., dissenting).
[41] Id. at 927.
[42] Id. at 928-31.
