Drug testing of teachers involves the law regarding search and seizure, and it must consider both the general nature of a workplace with the expectation that privacy exists there and the specific nature of a school setting with the special considerations necessary there. As a general rule of thumb, drug testing of teachers is lawful under two circumstances: tests conducted when a school official reasonably believes that a teacher is under the influence of a controlled substance not permitted by law or school policy, and tests conducted pursuant to a policy permitting random, suspicionless drug tests. As with student drug testing, the drugs targeted are usually those with serious and dangerous consequences for use (e.g., marijuana and alcohol, but not nicotine). The most popular test implemented is urinalysis. Other drug tests include searches with breathalyzers and analysis of hair samples.
Public schoolteachers, generally, do not have an expectation of privacy in their workplace, including those places under the control of the school itself, such as classrooms, cafeterias, hallways, offices, desks, and file cabinets (O’Connor v. Ortega, 1987). Even so, educators have an expectation of privacy in their personal items such as luggage, purses, and briefcases. Suspicion-based drug tests of teachers are governed largely by the two-part “reasonable suspicion” test adopted by the Supreme Court in New Jersey v. T. L. O. (1985).
First, the search must be justified at its inception (i.e., there must be reliable physical or eyewitness evidence that the search will reveal a violation of a school rule or the law). Second, the search must be reasonable in scope (i.e., it must be related to the objectives of the search and not excessively intrusive in light of the sex of the teacher and the nature of the contraband and the infraction). Suspicion-based searches of teachers are justified on the argument that school boards should maintain a safe, efficient workplace, but the evidence used to justify a search must be reasonable. In Warren v. Board of Education of St. Louis (2001), for example, a school principal who ordered a teacher to undergo a urinalysis drug test noted the teacher’s aggressive and erratic behavior at a meeting, but could not articulate a reasonable suspicion of drug use.
For students, random and suspicionless drug testing is supported by the Supreme Court cases of Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002) and Vernonia School District 47J v. Acton (1995). Earls set out a three-factor inquiry for the legality of such searches: (1) The nature of the privacy interest is lessened in extracurricular activities; (2) the character of the intrusion is minimal; and (3) the nature and the immediacy of the school’s interest in fighting drug use among young people are strong. While there is likely some sentiment in support of the same sort of inquiry regarding random, suspicionless drug testing of teachers, particularly under a school policy that safeguards privacy, like the one upheld in Earls, the fact that teachers are school employees adds some complexity to the legal question.
Three landmark Supreme Court cases address the issue of random, suspicionless drug testing of employees (Chandler v. Miller, 1997; National Treasury Employees Union v. Von Raab, 1989; Skinner v. Railway Labor Executives Association, 1989). In these cases, the Court held that while urinalysis drug testing does intrude on a public employee’s expectation of privacy, that expectation can be trumped by the articulation of a compelling governmental interest—the need for a safe and drug-free workplace, particularly for those employees in “safety sensitive” positions.
Applying these precedents, courts have regarded random and suspicionless drug testing of teachers with mixed views. In 1998, the Fifth Circuit struck down a Louisiana school board’s urinalysis drug testing policy for teachers on the argument that the “special needs” of the education workplace are different from those of the railway workers in Skinner, who were required to undergo testing after railroad accidents (United Teachers of New Orleans v. Orleans Parish School Board, 1998). According to the court, there were no such special needs. On the other hand, the Sixth Circuit, also in 1998, used the same precedent and upheld a similar policy; according to that court, teachers occupy “safety-sensitive” positions, and the lack of a demonstrated drug problem among the teaching staff was not relevant (Knox County Education Association v. Knox County Board of Education, 1998; see also Crager v. Board of Education of Knott County, 2004). The court also cited the in loco parentis doctrine and argued that the public interest in drug testing outweighed the teachers’ privacy interests in what was already a heavily regulated profession.
While drug testing of teachers is lawful, school boards wishing to adopt drug testing policies for their employees are encouraged to read the case law related to both suspicion-based and suspicionless drug tests (Patchogue-Medford Congress of Teachers v. Board of Education of Patchogue-Medford Union Free School District, 1987).
Patrick D. Pauken
See also Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls; Drugs, Dog Searches for; Locker Searches; O’Connor v. Ortega; Privacy Rights of Teachers; Strip Searches; Vernonia School District 47J v. Acton