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District's Drug-Test Program Overturned By Appeals Court

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Washington--The District of Columbia school district can require its transportation workers to submit to drug tests as part of routine physical examinations, but under its current policy it can only use a urine test that screens employees for impairment while they are on duty, a federal appeals court here has ruled.

Because no such test exists, the unanimous decision by a three-judge panel effectively struck down the school system's three-year-old drug-testing program for school-bus drivers, mechanics, and attendants.

The ruling last week by members of the U.S. Court of Appeals for the District of Columbia Circuit is the first by a federal appellate panel on the sensitive question of screening school employees for drug use. But because it was decided on narrow grounds, it left both sides in the dispute claiming victory.

School officials were "gratified" that the appellate panel overturned a lower-court ruling that the Fourth Amendment's guarantee of freedom from unreasonable searches and seizures prohibited the district from requiring drug tests without "probable cause" for believing that a particular employee was a drug abuser, said Charles L. Reischel, an assistant corporation counsel for the District of Columbia.

Mr. Reischel also minimized the impact of the ruling, noting that it hinged on a 1977 district directive prohibiting employees from possessing or being under the influence of drugs while on school premises. The decision, he pointed out, did not address "what would happen if we change the directive" to include a blanket prohibition on drug use on or off the job.

But David A. Soley, the lawyer for the bus attendant who filed the suit, said he saw much broader implications in the decision. "In my opinion, it means that you can never test school employees' urine for drug use," he said.

"The court made it clear that a testing requirement has to be related to an employer's safety concerns," he continued. "In this case, the concern is that employees aren't impaired while they are on the job. And to the best of my knowledge, science has not come up with a urine test that can show present impairment for drugs."

Mr. Soley said his client did not plan to appeal the ruling, while Mr. Reischel said it would probably take "one to two weeks" for the District of Columbia school board to decide on its course of action.

The case, Jones v. McKenzie,4stemmed from a growing perception by school officials in 1984 that a "drug culture" pervaded the district's transportation branch.

Seven years earlier, the district's superintendent had issued the directive prohibiting school employees from possessing or being under the influence of drugs while on the job. In order to enforce that rule, the superintendent in 1984 issued a new directive requiring transportation workers to take urine tests for the presence of drugs.

Juanita M. Jones, a grandmother of four who worked as an attendant on buses serving handicapped children, tested positive for marijuana use and was dismissed.

Ms. Jones, who contends she has never used the drug, sought and was denied a hearing contesting her dismissal. She then filed suit in federal district court, charging violations of her right to be free from unreasonable searches under the Fourth Amendment and her right to due process of law under the Fifth Amendment.

A federal judge ruled in Ms. Jones's favor last year and ordered her reinstated in her former job with full back pay and benefits.

He also enjoined the school district from giving her any drug test "without first establishing probable cause to believe that she is using or under the influence of illicit drugs based on specific objective facts."

The school district did not contest the order requiring Ms. Jones's reinstatement. Rather, it asked the federal appeals court to rule only on the constitutionality of the injunction prohibiting drug tests without probable cause.

Ginsburg Concurred

The appeals court's opinion was written by Judge Harry T. Edwards, who was joined by Judges Kenneth W. Starr and Douglas H. Ginsburg.

Judge Ginsburg this month withdrew his nomination as Associate Justice of the U.S. Supreme Court, following his admission that he had smoked marijuana during his years as a college student and while he served as professor of law at Harvard University.

"[W]e think it important to make clear the narrow focus of our inquiry," the court noted in its opinion. "The only issue in this case is the propriety of the district court's blanket injunction against any drug testing in the absence of probable cause."

The court also noted that its decision did not address the issue of drug testing for teachers, or the broader question of what constitutional requirements would govern "random or individualized testing," as opposed to testing "in the context of a regular medical examination for employment purposes."

Having established those boundel10laries, the court then employed a balancing test to weigh Ms. Jones's constitutional rights against the school district's interest in ensuring students' safety. That interest, it said, could be inferred from the 1977 directive "that employees involved in the transportation of ... children not be under the influence of drugs while on duty."

Under Supreme Court precedents, a search that intrudes on an individual's Fourth Amendment privacy rights is permissible only if it is not excessive and is "reasonably" related to the underlying policy mandating the search.

"We note first that strong privacy interests are involved here," the judges wrote.

"Because drug tests often furnish information about employee activities occurring outside working hours," they said, "such tests may provide government officials with a periscope through which they can peer into an individual's behavior in her private life, even in her own home."

"[But] there are serious safety concerns on the other side of the balance," they continued. "There can be no doubt whatsoever that the school system's mission of safely transporting handicapped children to and from school cannot be ensured if employees in the transportation branch are allowed to work under the influence of illicit drugs."

"Any suggestion to the contrary would be preposterous," they said.

The court said that in light of the district's concern for safety, it had "acted pursuant to a significant and compelling government interest" in requiring drug tests "as part of routine employment medical examinations."

'Not a Valid Measure'

But, the judges added, the type of urine test used by the district--the emit Cannabinoid Urine Assay--"is not a valid measure of whether [an employee] is in possession of, is using, or is under the influence of illicit drugs at the time of the test."

They noted the lower court's finding that the emit test "does not indicate with respect to marijuana whether the ingredient was injected by active use or as a result of passive inhalation in the presence of others who were smoking marijuana."

The judges also noted that the district itself acknowledged that the test cannot "indicate when the ingredient was absorbed, as [marijuana] metabolites may be retained in an individual's system for days or weeks."

"As this test therefore lacks a sufficient nexus to [the district's] legitimate concern" as expressed in the 1977 directive, they held, ''it is clear that the school system could not constitutionally test its employees for drugs in the manner that Jones was tested."

"In summary, then," they concluded, "we hold that it is not unreasonable for the school system to require drug testing of its employees where: (a) the employees' duties have a direct impact on the physical safety of young school children; (b) the testing is conducted as part of a routine, employment-related medical examination; and (c) the test employed is one that has a nexus to the employer's legitimate safety concern."

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