By Perry A. Zirkel
Principal, November/December 2013

School safety has multiple meanings in both a practical and a legal sense. Some of the leading legal issues include bullying; student dress codes; searches and seizures of students; school police, including interrogations; assaults on staff members; and, for special education students, the use of restraints and seclusion. I have previously covered most of these issues in this column, but one that has emerged recently and somewhat surprisingly is drug and alcohol testing of staff members. The following elementary school case and the accompanying question-and-answer discussion reveal the trends in recent published court decisions.

The Case

Laura Barnes is an elementary teacher with 20 years of experience and an unblemished record. On May 7, 2009, two other teachers recounted to the principal an incident that had occurred the previous morning: They found Barnes lying on her classroom floor with her eyes closed, the lights off, and her first-grade students pres­ent. Her students had summoned the two teachers, saying that “our teacher has fell out.”

When her colleagues checked on her while she was still lying down, Barnes informed them that she was in severe pain due to an ovarian cyst. She also claimed that she was under pain medication for a dental proce­dure. They assisted her by watching her students and helping her sign out at noon.

The principal called the central office to find out the procedure for addressing this incident, and the assis­tant superintendent informed her that the district’s drug and alcohol policy required employees to take a drug test upon reasonable suspicion of drug or alcohol use, as decided by the superintendent or, if absent, his or her appointed replacement. (Reasonable suspicion is based on observable symp­toms and abnormal work behavior.) The policy also provided for discipline, up to and including termination, if the test was positive or the employee refused to take the test.

Based on this consultation, the principal asked Barnes to submit to a drug test upon her return to work. Barnes initially agreed to accompany the principal to a local facility for the drug test, but before they arrived Barnes called an attorney, who advised her to refuse to take the test. Thus, they returned to the school, where the principal asked Barnes to sign a state­ment confirming that she refused to take the drug test. Based on further consultation with the central office, the principal issued Barnes a one-day suspension.

After once again changing her mind later that afternoon, Barnes proceeded to another facility on her own to take a drug test. Although she did not share the results with the school district, Barnes tested positive for controlled substances for which she claimed to have prescriptions.

On May 12, 2009, Barnes received formal notice from the school district of her termination, subject to a hear­ing, for refusing to submit to a drug test, constituting “neglect of duty and insubordination.” At the hearing, the board received statements from six teachers, including the two who reported the incident to the principal. Barnes did not provide the prescrip­tions or any corroborating medical evi­dence of the cysts or the medications.

The school board voted unani­mously for termination. Barnes filed an appeal in the state trial court, where the judge concluded that the board’s decision was arbitrary or capri­cious because the policy required the superintendent to make the decision that there was the requisite reasonable suspicion to require the drug test and there was no evidence that the super­intendent had delegated this authority to the assistant superintendent in this case. The district appealed the trial court’s decision to the intermediate, appellate court.

What was the judicial outcome of the appeal in this case?

In Smith County School District v. Barnes (2011), the appellate court decided, on a 6-to-4 vote, to reverse the trial court and uphold the teacher’s termination. The majority concluded that the school board was entitled to judicial deference and that Barnes’ abnormal behavior at work constituted reasonable suspicion to trigger the mandatory drug test and that, as an experienced teacher, she had reason to know that her refusal could, in the dis­trict’s discretion, result in termination.

The dissent pointed out that the relevant criterion for reasonable suspi­cion did not extend to whether Barnes tested positive and whether she had a legitimate excuse for positive results. Instead, based on the one-time occur­rence of her lying down when ill and in intense pain and not able to even sit down any longer, the dissenting judges considered her behavior not abnormal in terms of establishing the reason­able suspicion needed for mandating a drug test. The dissent also viewed her changed mind based on conflict­ing advice and high stakes, and her ultimate taking of the test within the same day, as warranting latitude for her since the district did not strictly follow its own policy in terms of not only the required superintendent’s delegation but also the initial one-day suspension.

In the other cases, have courts upheld the constitutionality of terminating a teacher for refusing to take a drug test?

In the only other major similar case, the 11th Circuit Court of Appeals ruled that termination of a teacher who refused to take a drug test (per the district’s zero tolerance policy), after a sniffer dog’s discovery of a marijuana cigarette in her car’s ashtray, did not violate the Fourth Amendment (Hearn v. Savannah Board of Education, 1999). In that case, the teacher had insisted on waiting for her attorney’s advice and subsequently tested clean of drug use.

Would a school district policy that required drug testing of teachers or other school employees violate the Fourth Amendment if conducted without reasonable suspicion?

Based on the rather extensive case law to date, the answer depends on the jurisdiction in terms of what its court considers the scope of safety-sensitive employees. Requiring ran­dom drug testing of school employees generally would not seem to pass constitutional muster.

At the other extreme, courts tend to interpret the Fourth Amendment as allowing such mandatory testing for limited, clearly safety-sensitive school district roles such as mechanic’s help­ers (English v. Talladega County Board of Education, 1996). The variance is in the intermediate range. For example, the 6th Circuit Court of Appeals upheld the constitutionality of man­datory suspicion-less drug testing of various roles of school employees, including principals and teachers, but on a one-time basis such as upon hir­ing or promotion (Knox County Educa­tion Association v. Knox County Board of Education, 1998).

Subsequent, lower court decisions in the 6th Circuit disagreed as to the scope of the Knox County decision. A federal district court in Kentucky extended its scope to the random drug testing of teachers generally (Crager v. Board of Education, 2004), but a federal district court in Tennessee reached the opposite conclusion (Smith County Education Association v. Smith County Board of Education, 2012). Similarly, the 5th Circuit ruled that such testing lim­ited to custodians did not violate the Fourth Amendment (Aubrey v. School Board of Lafayette Parish, 1998), but that extending it to any school employee injured in an accident did (United Teachers of New Orleans v. Orleans Parish School Board, 1998).

Would the same judicial approaches to the Fourth Amendment apply to breathalyzer testing of school employees?

Generally yes, so long as the testing procedure is reasonably accurate and appropriate.

Conclusion

Specific situations may arise in the elementary school context where the effects of an individual employee’s drug or alcohol use may put young children at particular risk. In such cases, it is clear that the principal is entirely within constitutional bounds to require the employee—regardless of whether the employee’s role is as a teacher—to undergo such a test promptly, with the understanding that refusal may result in disciplinary action up to and including termination if the principal can show reasonable suspi­cion of drug or alcohol use.

Sources of such suspicion include either direct or reliably reported per­sonal observation of the employee’s behavior, speech, or odor. An intui­tive hunch or other purely subjective suspicion is not sufficient. However, probable cause (the standard that applies to the police) is not necessary in this context. Moreover, the ultimate results of the test are irrelevant for the purpose of determining whether the principal had reasonable suspicion because the standard applies at the time of mandating the test. To avoid legal as well as practical problems, the district should have policies and pro­cedures in place that prudently pro­tect the interests of the employee and the district, with the students’ safety being the primary consideration.

So-called “suspicion-less” drug or alcohol testing needs much more care­ful consideration at the district level, including whether the testing will be limited to eminently safety-sensitive positions such as school bus drivers, and what the courts of the district’s jurisdiction have decided in such cases.

In any event, where the elementary principal has reason to suspect that a school staff member is at all under the influence of drugs or alcohol, requir­ing an immediate test at a local facility is one of the tools legally available to protect student safety. Whether to use this tool and determining the conse­quences for either a refusal or “posi­tive” test result is within the reasonable discretion of the principal. However, as the primary case illustrates, consulting with appropriate officials at the central office is advisable.

Perry A. Zirkel is a professor of education and law at Lehigh University.

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