IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30885
UNITED TEACHERS OF NEW ORLEANS; JEFFERSON FEDERATION OF TEACHERS;
PORTIA ELLY; MELANIE C JONES; FRANK BECKENDORF; GAIL THOMPSON;
LOUIS THOMPSON; MARILYN HORTON
Plaintiffs-Appellants,
versus
ORLEANS PARISH SCHOOL BOARD, through; MORRIS HOLMES, Superintendent
in his official capacity, and the individual Orleans Parish School
sued in their official capacity named as follows:; MAUDELLE D.
CADE; GAIL GLAPION; SCOTT T SHEA; J BEHRENGER BRECHTEL; CAROLYN G
FORD; BILL BOWERS; CHERYL Q CRAMER; JEFFERSON PARISH SCHOOL BOARD,
through; ELTON LAGASSE, in his official capacity as the
Superintendent and the individual members of the Jefferson Parish
School Board sued in their official capacity named as follows:;
ROBERT WOLFE; BARRY BORDELON; O H GUIDRY; LAURIE ROLLING; CEDRIC
FLOYD; MARTIN MARINO; LIBBY MORAN; POLLY THOMAS; DR. GENE KATSANIS
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
May 29, 1998
Before WISDOM, HIGGINBOTHAM, and JONES, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Teachers and other employees attack drug testing rules of two
Louisiana school boards as contrary to the Fourth Amendment of the
United States Constitution and Article I, Section V, of the
Louisiana Constitution. The rules of the two parish boards
requiring employees injured in the course of employment to submit
a urine specimen are claimed to be both unreasonable searches and
contrary to Louisiana Revised Statute 23:1121, which permits
employees to seek medical treatment from the physician of their
choice.
Plaintiffs demand injunctive relief, and several individuals
also seek money damages. The district court denied a preliminary
injunction. Today we decide plaintiffs’ appeal from that denial.
I
l
The testing requirements at issue here are part of a larger
regulatory scheme for state administration. Louisiana provides by
statute that:
A. A public employer may require, as a condition of
continued employment, samples from his employees to test
for the presence of drugs following an accident during
the course and scope of his employment, under other
circumstances which result in reasonable suspicion that
drugs are being used, or as a part of a monitoring
program established by the employer to assure compliance
with terms of a rehabilitation agreement.
B. A public employer may require samples from prospective
employees, as a condition of hiring, to test for the
presence of drugs.
C. A public employer may implement a program of random
drug testing of those employees who occupy safety-
sensitive or security-sensitive positions.
D. Any public employee drug testing shall occur pursuant
to a written policy, duly promulgated, and shall comply
with the provisions of this Chapter.
. . . .
2
La. Rev. Stat. Ann. § 49:1015. Louisiana law governing workers’
compensation provides:
(1) no compensation shall be allowed for an injury
caused:
. . . .
(b) by the injured employee’s intoxication at
the time of the injury, unless the employee’s
intoxication resulted from activities which
were in pursuit of the employer’s interests or
in which the employer procured the
intoxicating beverage or substance and
encouraged its use during the employee’s work
hours, or
. . . .
(5) if there was, at the time of the accident, evidence
of either on or off the job use of a nonprescribed
controlled substance as defined in 21 U.S.C. 812,
Schedules I, II, III, IV, and V, it shall be presumed
that the employee was intoxicated.
. . . .
(7)(a) For purposes of this Section, the employer has the
right to administer drug and alcohol testing or demand
that the employee submit himself to drug and alcohol
testing immediately after the alleged job accident.
(b) If the employee refuses to submit himself to drug and
alcohol testing immediately after the alleged job
accident, then it shall be presumed that the employee was
intoxicated at the time of the accident.
. . . .
La. Rev. Stat. Ann. § 23:1081. Pursuant to these statutes, the
Jefferson Parish School Board adopted the following policy:
The Jefferson Parish School System will require, as a
condition of continued employment, all employees to
submit to a drug abuse screening panel and a blood
alcohol test by the Jefferson Parish School board’s
designated agent for worker’s compensation cases
following an accident during the course and scope of
employment. Laboratory work will be performed by the
Board’s designated drug testing laboratory. Failure to
comply with this mandatory requirement may result in
disciplinary action included, but not limited to,
suspension without pay.
The Orleans Parish School Board adopted the following policy:
In addition to pre-employment substance abuse screening,
employment actions that shall require such testing may
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include the following: Reasonable Suspicion that there
has been a violation of rules and regulations pertaining
to substance abuse, OPSB-required annual physical
examinations, Post Accident/Post Incident screening, and
during the six (6) month random testing period following
disciplinary action and reinstatement.
2
The test requires production of a urine sample under
supervision of a monitor. Males must face a urinal in the presence
of the monitor. Females may repair to a stall where the monitor
remains separated by a visual barrier but able to hear the sounds
of the person urinating. This control is said to be necessary to
the validity of the testing program.
3
Plaintiffs did not in seeking a preliminary injunction urge
state law beyond a general assertion that Louisiana offered greater
protection for privacy than the Constitution of the United States.
The district court did not treat state law in its order denying
preliminary injunctive relief, and state issues have not been urged
here as an independent basis for relief. As have the parties, we
review only the refusal to enjoin the testing as violative of the
Fourth Amendment to the United States Constitution.
Plaintiffs urge that theirs is a facial attack of the rules
of the two districts in requiring testing of teachers, teachers’
aids, and clerical workers. Plaintiffs include workers in each
category as well as the United Teachers of New Orleans and the
Jefferson Federation of Teachers. Some of the plaintiffs have been
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tested and seek money damages. We have jurisdiction, there is
standing, and they are not challenged.
The usual standards for grant of a preliminary injunction are
applicable. The only element at issue is the likelihood of success
on the merits. The district court found that there was no such
likelihood of success, and we turn directly to that issue.
II
Several relevant principles are settled. When a state orders
the collection and testing of urine, it conducts a search.
Ordinarily there must be “individualized suspicion of wrongdoing”
to meet the Fourth Amendment’s prohibition of unreasonable
searches. Chandler v. Miller, 117 S. Ct. 1295 (1997). There are
exceptions based on “special needs, beyond the normal need for law
enforcement.” Skinner v. Railway Labor Executives’ Ass’n, 109 S.
Ct. 1402, 1414 (1989)
The two school boards require testing of all employees
injured in the course of employment without regard to the
circumstances, even without any suggestion that a triggering injury
was caused by any misstep of the employee to be tested. Our
question is whether the school boards can fit their testing rules
within a special needs exception.
III
The Supreme Court recently instructed that “[w]hen such
special needs -- concerns other than crime detection -- are alleged
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in justification of a Fourth Amendment intrusion, courts must
undertake a context-specific inquiry, examining closely the
competing private and public interests advanced by the parties.”
Chandler, 117 S. Ct. at 1301. Directly to the point, “[i]n limited
circumstances, where the privacy interests implicated by the search
are minimal, and where an important governmental interest furthered
by the intrusion would be placed in jeopardy by a requirement of
individualized suspicion, a search may be reasonable despite the
absence of such suspicion.” Id. at 1295 (quoting Skinner, 109 S.
Ct. at 1417).
The interest of the state asserted here to justify its drug
testing is as well defined by what it is not as well as what it is.
We agree that evidence of drug use on the job by teachers could
identify a strong state interest. Teachers are entrusted with this
nation’s most precious asset -- its children. We need not lower
the privacy expectations of teachers to that of students to observe
that the role model function of teachers, coaches, and others to
whom we give this responsibility adds heavy weight to the state
interest side of the ledger in justifying random testing without
individualized suspicion. How that balance on a given record might
be struck is not before us. Despite hints of the school boards,
the testing here does not respond to any identified problem of drug
use by teachers or their teachers’ aids or clerical workers. The
school district offered evidence that during the seven months these
tests were in place, four teachers or substitute teachers tested
positive for drugs. This datum, while troubling, is in this
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undeveloped form an uncertain base for extrapolating drug use. If
any of these three classes of workers were the object of concern,
workers chosen for testing are simultaneously underinclusive and
overinclusive, remarkably so. The bite is underinclusive because
only persons injured in the course of employment are to be tested.
It is overinclusive because all persons injured are tested, not
just persons injured under circumstances suggesting their fault.
Stated another way, there is an insufficient nexus between
suffering an injury at work and drug impairment. The school boards
have not shown that their rules are responsive to an identified
problem in drug use by teachers, teachers’ aids, or clerical
workers. Regardless, their general interest in a drug-free school
environment is not served by these rules.
That the triggering event for testing is any injury-producing
incident is no quirk or inept rulemaking. To the contrary, the
rules appear to do precisely what they were intended to do: support
the state’s generalized interest in not paying compensation claims
of employees whose injury was caused by drug use. Under the
Louisiana workers’ compensation scheme intoxication is a defense to
a claim. A claimant refusing “drug and alcohol testing” faces a
presumption that must be overcome to be awarded benefits. La. Rev.
Stat. § 49:1015. The statute does not insist upon the testing of
urine. Rather, the parish boards do so and reinforce the shifting
of burdens by suspending any teacher who does not submit to
testing.
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IV
The two parish school boards have offered no legal
justification for insisting upon drug testing urine without a
showing of individualized suspicion of wrongdoing in a given case,
certainly nothing beyond the ordinary needs of law enforcement.
Special needs are just that, special, an exception to the command
of the Fourth Amendment. It cannot be the case that a state’s
preference for means of detection is enough to waive off the
protections of privacy afforded by insisting upon individualized
suspicion. It is true that the principles we apply are not
absolute in their restraint of government, but it is equally true
that they do not kneel to the convenience of government, or allow
their teaching to be so lightly slipped past. Surely then it is
self-evident that we cannot rest upon the rhetoric of the drug
wars. As destructive as drugs are and as precious are the charges
of our teachers, special needs must rest on demonstrated realities.
Failure to do so leaves the effort to justify this testing as
responsive to drugs in public schools as a “kind of immolation of
privacy and human dignity in symbolic opposition to drug use,” that
troubled Justice Scalia in Von Raab. National Treasury Employees
Union v. Von Raab, 109 S.Ct. 1384, 1399 (1989) (Scalia, J.,
dissenting).
V
The rules attaching adverse consequences to refusals to
consent to such searches cannot stand. The district court abused
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its discretion in refusing a preliminary injunction. We reverse
and remand with instructions that defendants are to be enjoined
from requiring teachers, teachers’ aids, and clerical workers to
submit urine specimens for testing in post-injury screening, absent
adequate individualized suspicion of wrongful drug use. This
injunction will not cover testing of blood or breath.
REVERSED and REMANDED with instructions.
EDITH H. JONES, special concurrence:
I concur in all but Part IV of Judge Higginbotham’s
excellent opinion and emphasize that it deals only with the
constitutionality of the schools’ policies of testing teachers
post-injury on the specific facts presented before us.
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