Aubrey v. School Board of Lafayette Parish

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30593

LARRY AUBREY,
Plaintiff-Appellant,

versus

SCHOOL BOARD OF LAFAYETTE PARISH, ET AL.,
Defendants,
SCHOOL BOARD OF LAFAYETTE PARISH,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Louisiana

August 10, 1998
Before POLITZ, Chief Judge, REYNALDO G. GARZA and DENNIS, Circuit Judges.

POLITZ, Chief Judge:

Larry Aubrey, a custodian employed by the Lafayette Parish School Board

in an elementary school, seeks injunctive relief and damages because he was

subjected to a urinalysis which he contends violated his fourth amendment rights1

1
Aubrey contends that his due process rights were violated because the Board did
not permit him to take an alternative test. He never challenged the
and provisions of the Louisiana Drug Testing Act.2 He appeals an adverse

summary judgment. For the reasons assigned, we affirm.

BACKGROUND

As a custodian at the Prairie Elementary School, Aubrey’s duties included

cleaning the fourth and fifth grade bathrooms each day, using various chemicals.3

He mowed the grounds immediately adjacent to the building and was responsible

for securing the premises at the end of the day, making minor repairs to buildings,

furniture and equipment, lighting pilot lights, maintaining HVAC equipment,

cleaning and replacing light fixtures, and trimming trees. He constantly was in the

presence of the young students.

In December 1992, the Board adopted an Employee Drug Testing Policy.4

validity of the first test, however, and the record reflects that he refused a retest of
the same sample.
2
La. R.S. 49:1001, et seq. (West Supp. 1997).
3
The chemicals used by custodians in cleaning bathrooms included
phosphoric acid, butyl carbitol, alkyldime thuybenzylam monium chloride,
didecyl dimethyl and alkyldimethyl/benzyl ammonoum chloride, octyl dimethyl
amine oxide, hydrochloric acid and quaternary ammonium chloride.
4
The first clause of the policy’s statement of purpose provides: “The children of
Louisiana are the greatest natural resource this state provides and their continued
safety and health is of serious importance to state and local education agencies.
Therefore, the Lafayette Parish School Board has a compelling interest and
commitment to eliminate illegal and unauthorized drug use (including the
2
In August 1993, Aubrey attended an in-service training for the custodial staff in

which the drug testing policy was distributed and reviewed.

Each year the Board submitted a list of “safety sensitive” employees to

Security Concepts International, Inc. for random selection and drug testing. On

September 28, 1994, the Board requested that Aubrey and fourteen other employees

submit to a urinalysis screening. Aubrey’s test indicated the presence of

tetrahydrocannabinol, the active chemical in marihuana. As an alternative to

termination, the Board required that Aubrey attend a substance abuse program at

the Freedom Recovery Center, Inc. Denying that he had used marihuana, Aubrey

sought an injunction barring the Board from firing him, or requiring that he

continue to attend the substance abuse program. The district court granted the

injunction to the extent that Aubrey was permitted to submit to periodic drug

testing and individual as opposed to group therapy treatment.

Thereafter, the district court granted the Board’s motion for summary

judgment, dismissing the action in its entirety. Aubrey appealed and we reversed

and remanded, concluding that the record did not contain sufficient summary

judgment evidence upon which to balance the government’s need to protect

unauthorized use of alcohol), drug users, drug activities, and drug effects from all
of its workplaces.”
3
children against the intrusion of Aubrey’s fourth amendment rights.5 We noted a

need for additional evidence, including how particular positions were selected and

designated as “safety sensitive,” the notice given to employees in such positions,

and whether the plaintiff’s own position fell within the safety sensitive category.6

The Board resubmitted its motion for summary judgment and filed additional

evidence addressing our concerns. The district court once again granted the

defendant’s motion for summary judgment. Aubrey timely appealed.

ANALYSIS

We review a grant of summary judgment de novo, applying the same

standard used by the district court and, in reviewing the facts, we draw all

inferences in favor of the nonmoving party.7 We do not weigh the evidence, assess

its probative value, or resolve any factual disputes; rather, we search the record for

resolution-determinative facts.8 Summary judgment is only appropriate when there

5
Aubrey’s notice of appeal indicated he was appealing the dismissal of both the
Board and the Center. In his brief, however, he states that he appealed only the
grant of summary judgment to the Board. Therefore, the Center’s dismissal is not
before us. Fed. R. Civ. P. 28. See Zeno v. Great Atlantic & Pacific Tea Co., 803
F.2d 178 (5th Cir. 1986).
6
Aubrey v. School Board of Lafayette Parish, 92 F.3d 316 (5th Cir. 1996).
7
Elliot v. Lynn, 38 F.3d 188 (5th Cir. 1994).
8
FDIC v. Myers, 955 F.2d 348 (5th Cir. 1992).
4
is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law.9

The fourth amendment guarantees the privacy, dignity and security of

persons against certain arbitrary and invasive acts by officers of the government or

those acting at their direction.10 By virtue of the fourteenth amendment, the fourth

amendment governs searches by state as well as federal government officials.11

Further, the fourth amendment is not limited to searches conducted for law

enforcement purposes but extends to all government searches, including those

conducted by the government while acting as an employer.12 This restraint on

government conduct generally bars officials from undertaking a search or seizure

absent individualized suspicion. Searches conducted without grounds for suspicion

of particular individuals have been upheld, however, in certain limited

circumstances.13

9
Fed. R. Civ. P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
10
Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967);
Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989).
11
New Jersey v. T.L.O., 469 U.S. 325 (1985); Elkins v. United States, 364
U.S. 206 (1960).
12
O’Connor v. Ortega, 480 U.S. 709 (1987).
13
See National Treasury Employees v. Von Raab, 489 U.S. 656 (1989);
Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989);
5
A program which compels government employees to submit to urinalysis is

a search within the meaning of the fourth amendment because such tests invade

reasonable expectations of privacy.14 Such a drug test therefore must meet the

reasonableness requirement. The amendment does not proscribe all searches and

seizures, but reasonableness depends on the nature of the search and seizure.15 In

a situation in which the fourth amendment intrusion serves a special government

need beyond that of law enforcement, a balancing test is required.16 The interest

of the government must be weighed against the privacy interest of the employee.

The analysis of the privacy interest should include not only the desire to be free

from mandatory testing, but also the intrusiveness of the particular program at

issue.17

The Supreme Court has found that special needs may outweigh the privacy

interests of individuals. In Skinner v. Railway Labor Executives Association,18 the

Vernonia School District 47J v. Acton, 515 U.S. 646 (1995); Chandler v. Miller,
117 S.Ct. 1295 (1997).
14
Von Raab, 489 U.S. at 665-666; Skinner, 489 U.S. at 616-618.
15
United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
16
Skinner, 489 U.S. at 619.
17
Acton, 515 U.S. at 652-654; Skinner, 489 U.S. at 619.
18
489 U.S. 602 (1989).
6
Court stated:

The Government’s interest in regulating the conduct of
railroad employees to ensure safety, like its supervision
of probationers or regulated industries, or its operation of
a government office, school, or prison, “likewise presents
‘special needs’ beyond normal law enforcement that may
justify the departures from the usual warrant and
probable-cause requirements.”19

Similarly in National Treasury Employees v. Von Raab, the Court found permissible

the U.S. Customs Service’s drug testing program analyzing urine specimens of

employees applying for promotions to positions involving interdiction of illegal

drugs and requiring the carrying of firearms.20

In Vernonia School District 47J v. Acton,21 a policy adopted by a school

district to test student athletes was held non-violative of fourth amendment

protections. The Court stated that “[d]eterring drug use by our Nation’s

schoolchildren is at least as important as enhancing efficient enforcement of the

Nation’s laws against the importation of drugs, which was the governmental

concern in Von Raab or deterring drug use in engineers and trainmen, which was

19
Skinner, 489 U.S. at 620 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873-
874 (1987)).
20
National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).
21
515 U.S. 646 (1995).
7
the governmental concern in Skinner.”22

In Chandler v. Miller,23 the Supreme Court’s most recent fourth amendment

drug testing case, the Court found violative of the fourth amendment a Georgia

statute requiring candidates for state offices to certify that they had tested negative

in a drug urinalysis. Georgia failed to show a special need substantial enough to

override the candidates’ privacy interests.

Skinner, Von Raab, Acton and Chandler provide guidance with respect to

whether a particular search meets the reasonableness standard, to be determined by

balancing the testing program’s intrusion on the individual’s fourth amendment

protections against its promotion of legitimate governmental interests. 24

We first turn to the interests articulated by the Board. The Board contends

that the urinalysis was obtained to maintain the safe and efficient operation of its

schools, ensure the physical safety of the children of Lafayette Parish, and decrease

the potential spread of drug use among its students. In pursuit of its objectives, the

Board created a list of employees who were considered safety sensitive, including

22
Acton, 515 U.S. at 661 (citations omitted).
23
117 S.Ct. 1295 (1997).
24
Acton, 515 U.S. at 652-653; Von Raab, 489 U.S. at 665-666; Skinner, 489
U.S. at 619; Chandler, 117 S.Ct. at 1301;
8
custodial employees such as Aubrey. Aubrey’s duties, outlined above, obviously are

important to the efficient operation of the school. The tasks assigned to him are

important. Despite Aubrey’s efforts to minimize the importance of his duties, we are

persuaded that the failure of the Board to use significant caution in the selection and

supervision of personnel performing such duties in a school that serves nearly 900

students, ranging in age from three to eleven, could place the children at significant

risk.

The Board also asserts that it “has a compelling interest and commitment to

eliminate illegal and unauthorized drug use (including the unauthorized use of alcohol),

drug users, drug activities, and drug effects from all of its workplaces.” The Board has

not produced any summary judgment evidence to demonstrate a problem of drug abuse

or use in its schools, and although such a showing would be of persuasive value, it is

not mandatory25 and such a requirement would present “an unduly narrow view of the

context in which the [Board’s] testing program was implemented.”26 As in Von Raab,

“[p]etitioners do not dispute, nor can there be doubt, that drug abuse is one of the most

25
Chandler, 117 S.Ct. at 1303 (“A demonstrated problem of drug abuse, while
not in all cases necessary to the validity of a drug testing regime, see Von Raab, 489
U.S. at 673-675, would shore up an assertion of special need for a suspicionless
general search program.”).
26
Von Raab, 489 U.S. at 673-674.
9
serious problems confronting our society today.”27 Unfortunately, neither our

workplaces nor our elementary schools are immune from the drug scourge causing such

problems in our land. The Board’s program is designed to prevent drug users from

obtaining a safety sensitive position and to aid in detecting those employees in such

positions who use drugs so that they may undergo treatment as a prerequisite to

keeping their jobs. We find the Board’s interests to be substantial indeed.

The Board’s valid and compelling public interests must be weighed against the

intrusion and interference with individual liberty that results from requiring the

designated safety sensitive employees to undergo a urine test.28 An employee’s

expectation of privacy must be assessed in the context of the employment relation.29

“[O]perational realities of the workplace may render entirely reasonable certain work-

related intrusions by supervisors and co-workers that might be viewed as unreasonable

in other contexts.”30 First, Aubrey had notice that his position as a custodian was

specifically designated as safety sensitive and that he would be subjected to random

27
Id. at 674.
28
Id. at 671.
29
O’Connor v. Ortega, 480 U.S. 709 (1987); Pierce v. Smith, 117 F.3d 866
(5th Cir. 1997).
30
Von Raab, 489 U.S. at 671 (citation and internal quotation omitted).
10
testing after he attended the in-service training program. The custodial position was

considered safety sensitive because of the handling of potentially dangerous machinery

and hazardous substances in an environment including a large number of children

ranging in age from three to eleven. Aubrey and other custodial employees “reasonably

should expect effective inquiry into their fitness and probity”31 to operate and use such

material in a school setting. The position has a possible impact on the physical safety

of the students in their educational environment and the presence of someone using

illegal drugs increases the likelihood that children will have an open avenue to obtain

the drugs.32

Second, the intrusiveness of the search was minimal. There is no evidence that

anyone observed, listened or otherwise monitored the collection of the urine sample.

Aubrey produced the sample in privacy. In addition, he was not required to disclose

any personal medical information, nor was the urinalysis used to determine the

presence of anything other than the presence or absence of drugs.33 Finally, despite

31
Id. at 672.
32
See Hansen v. California Dep’t. of Corrections, 920 F. Supp. 1480, 1492
(N.D. Cal. 1996)(“[P]rison guards who use drugs may be more likely to smuggle
drugs to prisoners, as they need money to support their habit, as they may be subject
to blackmail if prisoners know of their drug use, and as their drug use may mean
that they are less reluctant to violate the law by providing others with drugs.”).
33
See Von Raab, 489 U.S. at 672, Acton, 515 U.S. at 658-659.
11
testing positive to marihuana, the Board did not dismiss Aubrey but, rather, required

that he submit to a substance abuse program.

It is clear that unlike Chandler, the special need in this case is substantially more

than symbolic or a desire to project a public image. In a recent case we addressed the

importance of the government’s demonstration of a special need. In Orleans Parish

School Board,34 we held that the School Boards’ policies, requiring all employees to

submit to a drug abuse and alcohol screening panel following an accident during the

course and scope of their employment, were violative of the fourth amendment. The

Boards failed to articulate a special need for the testing, relying solely on a general

interest. The Lafayette Parish School Board has demonstrated that it is motivated by

the special incentive to protect our most important resource--children. Although the

facts in this case differ from Acton in that the school was testing student athletes as

opposed to employees, the most significant element in both this case and Acton is that

“the Policy was undertaken in furtherance of the government’s responsibilities, under

a public school system, as guardian and tutor of children entrusted to its care.”35 The

school system’s role as a guardian does not end with protecting children from their own

34
United Teachers of New Orleans v. Orleans Parish School Board, 1998 WL
276237 (5th Cir. 1998).
35
Acton, 515 U.S. at 665.
12
actions, but must deter potentially dangerous actions of adults, including school

employees, who may have interaction with and influence upon them. We therefore

conclude and hold that the Board’s need to conduct the suspicionless searches pursuant

to the drug testing policy outweighs the privacy interests of the employees in an

elementary school who interact regularly with students, use hazaradous substances,

operate potentially dangerous equipment, or otherwise pose any threat or danger to the

students.

Aubrey also contends that the drug testing procedure established by the Board

is deficient. He insists that the Board violated sections 1006(D)(7)36 and 1008(C)37 of

36
La. R.S. 49:1006(D)(7) (West Supp. 1997).

D) The employer may, but is not required to, direct each collection site
person to collect split samples. If split samples are collected, they shall
be collected in according to the following:

* * *
7) If the test of the first bottle is confirmed positive, a split sample
collected, the employee may request that the medical review officer
direct that the second bottle be tested, at the employee’s own expense,
in an NIDA-certified or CAP-FUDT-certified laboratory for presence
of the drug(s) for which a positive result was obtained in the test of the first bottle.

* * *

37
La. R.S. 49: 1008(C) states:

Screening laboratories shall collect split samples in strict accordance with the
13
the Louisiana Drug Testing Act because the screening laboratory failed to collect split

samples.38 Both sections apply, however, only to “screening laboratories”; meaning

a facility which performs drug testing “and which is not NIDA-certified39 or CAP-

FUDT40 certified for forensic urine drug testing. . . .”41 The laboratory which

performed the testing of the subject sample, Laboratory Specialists, Inc., is not

considered a screening laboratory and is CAP-FUDT certified. Further, under section

1006, an employer “may, but is not required to, direct each collection site person to

collect split samples.” Aubrey’s assertions thus are meritless.

The judgment appealed is AFFIRMED.

ENDRECORD

provisions of this Chapter. Following collection of split samples, the first
sample shall be sealed, labeled, and stored in strict accordance with
NIDA guidelines. The second sample shall be analyzed...in accordance
with NIDA guidelines.
38
A split sample is defined as a “urine specimen from one individual that is
separated into two specimen containers.” La. Rev. Stat. § 49:1001 (21)(West Supp.
1997).
39
National Institute on Drug Abuse.
40
College of American Pathologists-forensic urine drug testing.
41
La. R.S. 49:1001(20)(West Supp. 1997).
14
DENNIS, Circuit Judge, dissenting.

I disagree with the majority’s conclusion that the school board has shown that

this case falls within the closely guarded “special needs” category recently recognized

by the Supreme Court within which state officials without reasonable individualized

suspicion of wrongdoing may require a person to submit to an urinalysis drug test. In

this case the school board, without reasonable individualized suspicion that a janitor’s

urine contained evidence of illegal drug usage, randomly selected and ordered him to

submit to a urinalysis drug test, on pain of disciplinary action which could result in

termination. The janitor was subjected to urinalysis under the school board’s random

drug-testing program, which appears to cover mandatorily all manual labor school

board employees, while notably omitting any such requirement of teachers, principals,

and administrative and clerical personnel.

The school board compelled drug test effected a search within the meaning of

the Fourth and Fourteenth Amendments. The decisions of the Supreme Court clearly

require that state officials have an individualized reasonable suspicion that illegal drug

use evidence is contained in a person’s urine before ordering him to submit to an

urinalysis drug test. The majority’s erroneous conclusion that the state’s proffered

“special need” for drug testing justified the suppression of the Fourth Amendment’s

normal requirement of individualized suspicion led to its mistaken affirmance of the

15
district court’s summary judgment rejecting the janitor’s petition for injunctive relief

and damages. The majority’s decision also conflicts in principle with a previous

decision of this court. Accordingly, I respectfully dissent.

That the school board’s actions invaded an expectation of privacy that society

is prepared to recognize as reasonable is not disputed. “‘There are few activities in our

society more personal or private than the passing of urine. Most people describe it by

euphemisms if they talk about it at all. It is a function traditionally performed without

public observation; indeed, its performance in public is generally prohibited by law as

well as social custom.’” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602,

617 (1989) (quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170,

175 (5th Cir. 1987)). “Because it is clear that the collection and testing of urine intrudes

upon expectations of privacy that society has long recognized as reasonable, the

Federal Courts of Appeals have concluded unanimously, and we agree, that these

intrusions must be deemed searches under the Fourth Amendment.” Id. (footnote

omitted).

The decisions of the Supreme Court require that state officials have an

individualized reasonable suspicion that a person’s urine contains evidence of illegal

drug use before ordering him to submit to an urinalysis drug test. The Supreme Court,

in Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989), and

16
National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), recognized

a “special needs” category of cases involving train operators and Customs Service

agents and permitted suspicionless government mandated urinalysis of such persons

under the particular and unique circumstances and regulated drug testing programs in

those cases. Previously, Supreme Court Justices, in dicta and separate opinions, had

spoken of “special needs” in contexts other than urinalysis drug testing but clearly had

not designated a “special needs” category for suspicionless searches or seizures.

Subsequent to Skinner and Von Raab the Supreme Court, in Vernonia School District

47J v. Acton, 515 U.S. 646 (1995), recognized a “special needs” category for

suspicionless random sample urinalysis of secondary school athletes, who, as a

condition of eligibility for interscholastic athletics, had signed forms consenting to the

test and had obtained written consent from their parents, under the particular, unique

circumstances involving an “immediate crisis” caused by a sharp increase in drug use

by students.

Recently, in Chandler v. Miller, 520 U.S.---, 117 S.Ct. 1295 (1997), the

Supreme Court held that a state’s statutory requirement that candidates for state office

submit to an urinalysis drug test does not fit within the closely guarded “special needs”

category of constitutionally permissible suspicionless searches established by Skinner,

Von Raab, and Vernonia and that those precedents remain the guides for determining

17
whether any proffered “special needs” for suspicionless drug testing passes

constitutional muster. In the present case, it is clear that the school board’s

requirement that an adult janitorial worker submit to urinalysis drug testing, which was

not based on reasonable individualized suspicion, did not fit within the closely guarded

“special needs” category of constitutionally permissible suspicionless searches, because

the random drug test order was not supported by a showing of any of the factors

necessary to justify a “special needs” category and suspicionless drug testing policy or

program.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.

Until the late 1960's, the steadfast rule was that in order for a search to be

“reasonable,” law enforcement officials must first obtain a warrant from a neutral and

detached magistrate by establishing probable cause that a law had been violated, and

that in the few specific situations in which obtaining a warrant was deemed

impracticable probable cause was still required. See, e.g., Carroll v. United States,

18
267 U.S. 132 (1925); Agnello v. United States, 269 U.S. 20 (1925). As the Supreme

Court considered nontraditional applications of the Fourth Amendment, however, such

as searches by public inspections officials, see Camara v. Municipal Court, 387 U.S.

523 (1967), and frisks by police officers, see Terry v. Ohio, 392 U.S. 1 (1968), it found

it needed more flexibility than the warrant and probable cause requirements could

provide. The Court began, in limited circumstances, to recognize specific permissible

departures from the traditional probable cause requirement, after “balancing the need

to search against the invasion which the search entails”. Camara, 387 U.S. at 537;

accord Terry, 392 U.S. at 21. “Those departures have been of two different kinds: (1)

[those] requiring only lesser individualized suspicion, [and] (2) [those] requiring no

individualized suspicion but only a random or other nonarbitrary selection process[.]”

Wayne R. LaFave, Computers, Urinals, and the Fourth Amendment: Confessions of

a Patron Saint, 94 MICH. L. REV. 2553, 2575-1576 (1996)[hereinafter LaFave]; cf.

Terry, 392 U.S. 1; Camara, 387 U.S. 523.

Each situation in which the Supreme Court has created an exception that allows

an intrusion without reasonable individualized suspicion is markedly different from the

school board mandated urinalysis test situation in the present case. In comparison,

each of those cases is clearly distinguishable from the present case on one or more of

the following grounds: (1) the nature of the intrusion was much less severe; (2) the

19
magnitude of the governmental need for the search was far greater; and/or (3) it was

impracticable or impossible to respond to the governmental need with the

individualized suspicion requirement. See LaFave, supra, at 2577 (citing and

referencing cases).

For example, the premises inspection cases do not involve a serious intrusion

upon personal privacy because even the housing inspections, and especially the

business inspections, are not “personal in nature.” Camara, 387 U.S. at 537. “The

concern of the inspector is directed toward such facilities as the plumbing, heating,

ventilation, gas and electrical systems, and toward the accumulation of garbage and

debris, and there is no rummaging through private papers and effects of the

householder.” LaFave, supra, at 2577-78. The search at issue in the present case, by

contrast, is extremely personal in nature because it intrudes upon “an excretory function

traditionally shielded by great privacy.” Skinner, 489 U.S. at 626; see also LaFave,

supra, at 2577-78 (discussing similar type of search in Acton).

The present case is distinguishable from the “special needs” urinalysis cases, and

from other Fourth Amendment cases, in which searches without individualized

suspicion were permitted, because those cases involved far greater magnitudes of risks.

The searches in those cases were responsive to situations in which “even one

undetected instance of wrongdoing could have injurious consequences for a great

20
number of people,” Vernonia, 515 U.S. at 675 (O’Connor, J., dissenting): as in the

case of building inspections, “even a single safety code violation can cause ‘fires and

epidemics [that] ravage large urban areas[,]’” LaFave, supra, at 2578 (quoting

Camara, 387 U.S. at 535), as in airport screening, “where even a single hijacked plane

can result in the destruction of ‘hundreds of human lives and millions of dollars of

property,’” id. (quoting United State v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974)),

as in particular comprehensive drug-testing programs, in Skinner for example, “where

a single drug-impaired train operator can produce ‘disastrous consequences’ including

‘great human loss’” and property loss, id. (quoting Skinner, 489 U.S. at 628), “in Von

Raab, where a customs official using drugs can cause the noninterdiction of a ‘sizable’

drug shipment and consequently injury to the lives of many, and perhaps a breach of

‘national security,’” id. (quoting Von Raab 489 U.S. at 670, 674), and in Vernonia in

which the subjects of the drug-testing program were children who had been committed

to the temporary custody of the state as schoolmaster, who were subject to a greater

degree of supervision and control than the state may exercise over free adults, and who

had a lesser privacy expectation with regard to medical examinations and procedures

than the general population, Vernonia, 515 U.S. 646.

Most important, the cases permitting a search without individualized suspicion

“upheld the suspicionless search only after first recognizing the Fourth Amendment’s

21
long-standing preference for a suspicion-based regime, and then pointing to sound

reasons why such a regime would be ineffectual under the unusual circumstances

presented.” Vernonia, 515 U.S. at 674 (O’Connor, J., dissenting); see also id. at 674-

75 (O’Connor, J., dissenting) (discussing cases); LaFave, supra, at 2578-79 (same).

For example, the Court in Camara emphasized that an individualized suspicion test was

impracticable for searches of homes for safety violations because evidence of code

violations ordinarily was not observable from outside of the house, Camara, 387 U.S.

at 537, while in Bell v. Wolfish, 441 U.S. 520, 560 n.40 (1979), the Court allowed

suspicionless searches of prisoners following contact visits because the degree of

scrutiny necessary to obtain individualized suspicion would cause “obvious disruption

of the confidentiality and intimacy that these visits are intended to afford.” Similarly,

a requirement of individualized suspicion for testing train operators after an accident

was not feasible in Skinner because “the scene of a serious rail accident is chaotic.”

Skinner, 489 U.S. at 631. In Von Raab, requiring suspicion for testing customs

officials was unworkable because it was “not feasible to subject [such] employees and

their work product to the kind of day-to-day scrutiny that is the norm in more traditional

office environments.” Von Raab, 489 U.S. at 674. Finally, the Supreme Court’s cases

on border and airport searches may be distinguished because in those instances

“authorities find themselves in essentially a now-or-never situation as to a large volume

22
of travelers who could not feasibly have been subjected to prior scrutiny.” LaFave,

supra, at 2579; see United States v. Ramsey, 431 U.S. 606 (1977); United States v.

Moreno, 475 F.2d 44 (5th Cir. 1973).

By contrast, there is no comparable justification or precedent for allowing the

school board officials in the present case to order a janitor to submit to drug tests

without individualized suspicion. Aubrey, whose job title was “custodian” but whose

duties are more aptly described as “janitorial,” was susceptible to close supervision

and/or observation by a custodian supervisor, a principal, a vice principal, school

teachers, and other school workers. There was no evidence that Aubrey’s job involved

more hazardous cleaning materials or equipment than that used by innumerable other

ordinary janitorial workers. I have been unable to find any support in the record for the

majority’s assertion that Aubrey “constantly was in the presence of young students,”

which incorrectly implies that Aubrey’s job was somehow distinguishable from that of

an ordinary school janitor. Plainly, there has been no showing that the reasonable

individualized suspicion test would likely be ineffectual under the circumstances of

Aubrey’s janitorial employment.

The Supreme Court in Chandler, its most recent urinalysis drug test case,

reaffirmed that “the Fourth Amendment requires government to respect ‘[t]he right of

people to be secure in their persons . . . against unreasonable searches and seizures,’”

23
Chandler, 520 U.S. at --, 117 S.Ct. at 1298, and that “[t]o be reasonable under the

Fourth Amendment, a search ordinarily must be based on individualized suspicion of

wrongdoing,” id. at 1301 (citing Vernonia, 515 U.S. at 670). However, “‘[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 1301 (quoting Skinner, 489 U.S. at

624); see also Von Raab, 489 U.S. at 665-66.

The Court clearly indicated that Skinner and Von Raab must be read in their

unique contexts. “Skinner concerned Federal Railroad Administration (FRA)

regulations that required blood and urine tests of rail employees involved in train

accidents.” Id. “The FRA adopted the drug-testing program in response to evidence

of drug and alcohol abuse by some railroad employees, the obvious safety hazards

posed by such abuse, and the documented link between drug- and alcohol- impaired

employees and the incidence of train accidents.” Id. Factors tending to offset the

privacy concerns were that the regulations reduced intrusiveness; the fact that the

industry was regulated pervasively for safety diminished privacy expectations; the

surpassing safety risks and interests; the illegal drug and alcohol use by rail employees

could “cause great human loss before any signs of impairment become noticeable to

24
supervisors”; the program helped obtain “invaluable information” about major train

wreck causes and; an individualized suspicion requirement in the chaotic aftermath of

a train accident would impede detection of causation. Id.

In Von Raab, drug interdiction had become the Customs Service’s primary

enforcement mission; the covered posts directly involved drug interdiction or otherwise

required Customs officers to carry firearms; the employees had access to vast sources

of contraband; officers had been targets and some had succumbed to bribery; and it was

not feasible to subject Customs Service employees to the kind of day to day scrutiny

that is the norm in more traditional work environments. Chandler, 117 S.Ct. at 1301-

02.

In Chandler the Supreme Court also pointed out the set of unique circumstances

in Vernonia, under which it had sustained a random sample drug-testing program for

high school students engaged in interscholastic athletics, with written consent of each

athlete’s parents, during the season of each sport: public school systems bear large

responsibilities as “guardian and tutor” of children entrusted to their care, there was

“an ‘immediate crisis’ caused by a sharp increase in drug use in the school district,”

student athletes were “‘leaders of the drug culture,’” “students within the school

environment have a lesser expectation of privacy than members of the population

generally,” and it is important to deter drug use by school children and to reduce the

25
risk of injury caused by drug use among student athletes. Id. (quoting and citing

Vernonia, 515 U.S. at 646).

According to the Chandler Court, Skinner, Von Raab and Vernonia establish

that the government’s “proffered special need for drug testing must be substantial--

important enough to override the individual’s acknowledged privacy interest,

sufficiently vital to suppress the Fourth Amendment’s normal requirement of

individualized suspicion.” Id. at 1303. The Supreme Court in Chandler rejected the

state’s invitation to apply a more deferential framework, stating that “[o]ur guides

remain Skinner, Von Raab, and Vernonia.” Id. at 1302.

Before Chandler, it was already very clear that the present case does not fit into

the Skinner - Von Raab - Vernonia “Special Needs” category. For the reasons

previously discussed, the present case is clearly distinguishable from other cases

allowing suspicionless searches or seizures in terms of the nature of the intrusion, the

magnitude of risks to human lives and property, and/or the practicability of application

of the reasonable individualized suspicion test. Chandler confirms, however, that, in

the present case, the governmentally proffered special need for suspicionless drug

testing has not been demonstrated to be real, substantial or sufficiently vital to suppress

“the Fourth Amendment’s normal requirement of individualized suspicion[,]” id. at

1303, when measured by “[o]ur guides . . . Skinner, Von Raab, and Vernonia[,]” id.

26
at 1302.

First, the school board in the present case has not established that there was any

demonstrated need for the suspicionless drug testing of janitors and other school

workers. In Skinner, Von Raab, and Vernonia, the urinalysis tests were administered

pursuant to well defined programs established by governmentally promulgated

regulations or written policy statements based on documented needs, not upon the pure

ipse dixit of local government officials. In Vernonia, the drug testing was also

authorized by the written consent of the parents of each student-athlete, which consent

was obtained as a condition precedent to participation in interscholastic athletics.

Second, there has been no demonstration in the present case that public safety

is genuinely in jeopardy or that there is a critical and immediate need to suppress the

Fourth Amendment’s normal requirement of individualized suspicion. Unlike the

situation presented in Skinner, the record here indicates that the school board has not

undertaken any kind of study, much less a systematic study, of drug abuse by janitors

and other school workers. Consequently, the school board had not established a

documented link between drug abuse by janitors and other school workers and any

school accident or exposure of children to drugs. Further, the record does not reflect

that school janitors participate in an industry that is regulated pervasively to ensure

safety. There was no indication of a surpassing safety interest in guarding against the

27
risk that janitors would cause loss of large numbers of human lives and millions of

dollars of property damage due to drug use before any signs of impairment would

become noticeable to supervisors. There was no evidence that the individualized

suspicion requirement for a drug test of janitors would seriously impede the employer’s

ability to identify and eliminate or rehabilitate drug-impaired janitors.

The present case, involving a school janitor, in contrast with Von Raab, does not

involve a Customs law enforcement officer who is directly involved in drug

interdiction, required to carry firearms, given access to vast sources of contraband,

exposed to the risk of bribery and blackmail by illegal drug traffickers, capable of

facilitating importation of sizable drug shipments or blocking the apprehension of

dangerous criminals, and engaged in a mission that is not susceptible to day-to-day

scrutiny and supervision as in more traditional work environments. See Von Raab, 489

U.S. at 670-674.

Finally, the present case, which is quite distinguishable from Vernonia, involves

a free adult janitorial worker employed in the mundane job of maintaining school

buildings and grounds, not high school and junior high school student athletes, who as

students within the school environment have a lesser expectation of privacy than

members of the population generally, and to whom the public school system owes a

duty, as guardian and tutor of children entrusted to its care, to protect from moral

28
corruption and physical injury due to drug use, especially during an immediate crisis

caused by a sharp increase in drug use in the school district. See Vernonia, 515 U.S.

at 654-664.

In sum, the record in the present case is notably lacking in the presentation of a

concrete danger demanding departure from the Fourth Amendment’s main rule that, to

be reasonable under the Fourth Amendment, a search must be based on individualized

suspicion. See Chandler, 117 S.Ct. at 1303.

Moreover, the majority’s decision conflicts with United Teachers v. Orleans and

Jefferson Parish School Boards, 142 F.3d 853 (5th Cir. 1998), in which this court held

unconstitutional, under Chandler’s (Skinner - Von Raab - Vernonia based) “special

needs” analysis, similar programs for the suspicionless urinalysis testing of school

board employees. The rules of two parish school boards required employees injured

in the course of employment to submit to urine tests. The rules were not based upon

any identified problem of drug use by teachers or their teachers’ aids or clerical

workers. This court concluded that the school boards had failed to show “[any] 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.” Id. at 857. The court explained:

Special needs are just that, special, an exception to the command of the

29
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.

Id. (quoting Von Raab, 489 U.S. at 681 (Scalia, J., dissenting).

The school board in the present case has offered no more special needs or legal

justification for insisting upon drug urine testing without a showing of individualized

suspicion of wrongdoing in a given case than the school boards did in United Teachers.

The testing in the present case does not respond to any identified problem of drug use

by janitors or other school workers. Instead, it rests only on the school board’s

“preference for means of detection [without] the protections of privacy afforded by

30
insisting upon individualized suspicion” and the “rhetoric of the drug wars,” rather than

on the “demonstrated realities,” id., that are required to establish “special needs” for

suspicionless urinalysis testing of employees under Chandler, Skinner, Von Raab and

Vernonia.

ENDRECORD

31
DENNIS, Circuit Judge, dissenting.