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Illinois School Board Journal - ARCHIVES
May-June, 2001
ASK THE STAFF:
Random testing of entire staff would violate their privacy
This issue's question is answered by IASB general counsel Melinda Selbee. You can contact Melinda at mselbee@iasb.com.
Question: I would like to randomly drug test our staff members, like we do our bus drivers. May we do this?
Answer: Generally, no. Drug testing by public employers constitutes a search of an individual, thereby invoking the U.S. Constitution's protection against unreasonable search and seizure.
In determining whether post-employment testing of a public employee is an unreasonable search, courts balance the employee's privacy interests against the employer's interests. A public employee's privacy interests usually supersede those of the employer, unless the employee is in a position affecting "public safety," such as a police officer or firefighter.
School boards cannot look to their practice of randomly drug testing bus drivers as rationale for randomly drug testing other staff members. The U.S. Congress recognized that professional drivers are in a position affecting public safety. It passed a law in 1991 requiring all persons subject to commercial driver's license requirements be randomly drug screened. Thus, schools not only may, but must, randomly drug screen school bus drivers. Other school employees are generally not in "safety positions." A random drug testing policy would violate their privacy interests.
There are, however, limited situations when a public school applicant or employee may be subject to drug or alcohol testing. For example, a public school employer may require an employee to submit to drug testing when reasonable suspicion exists that the employee violated the school's drug and alcohol policy.
The U.S. Supreme Court recently refused to hear a teacher's appeal regarding a board drug screening policy. The policy required employees to submit to a drug screen if there were "reasonable suspicion" that the employee violated the school's drug-free policy.
The teacher's car was searched when a campus security officer and a police officer allowed a drug-sniffing dog to enter the car through the passenger window. The dog alerted to an ashtray where a partially burned marijuana cigarette was found. The dog's alert served as probable cause, enabling the police officer to immediately search the ashtray. The results of the police officer's search supplied the "reasonable suspicion" that triggered the board policy's mandatory drug screen. Hearn v. Board of Public Education for City of Savanna, (11th Cir. 1999) 191 F.3rd 1329, cert. denied May 15, 2000.
Drug and alcohol screening policies are very problematic and should be used with caution. Many other laws are implicated, including the Americans With Disabilities Act (42 U.S.C. 2114(a)), Drug-Free Workplace Act (41 U.S.C. 701 et seq.), collective bargaining and workers' compensation laws, and individual employment contracts.
A school district's attorney should be consulted before a district uses any drug or alcohol testing.