Is mandatory drug testing for all school district job applicants constitutional? A recent case from the Eleventh Circuit suggests not. See Friedenberg v. Sch. Bd. of Palm Beach Cty., 9:17-cv-80221-RLR (11th Cir. 2018). After Friedenberg, school districts may no longer be able to justify blanket drug testing of every position solely because a job involves working for a school board. To pass constitutional muster, there must be a connection between the specific job’s duties and a safety risk from drug use. School boards can likely establish this connection for most instructional jobs, but may not fare as well with some administrative, clerical or custodial positions.

A school district mandated drug test is a search subject to the Fourth Amendment’s “reasonable” standard. To be reasonable, a search must be based on individualized suspicion. Suspicionless searches may still be reasonable, however, when “special needs, beyond the normal need of law enforcement, make the warrant and probable-cause requirement impracticable.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). This is a context-specific exception requiring courts to weigh the competing public and private interests. Previously recognized exceptions include searching public school students in extracurricular activities and government employees involved in high risk work.

In Friedenberg, the Eleventh Circuit considered the constitutionality of a school district denying a woman a substitute teacher position because she refused to take a drug test. Joan Friedenberg applied for several positions in the Palm Beach County School District. Each application required that she agree to be tested for drugs. None of the jobs, however, were traditional safety-sensitive positions (i.e. bus driver, life guard, etc.). The School District offered Friedenberg a conditional substitute teaching job contingent upon her passing a drug test. She refused.

Friedenberg filed a class action lawsuit on behalf of all job applicants for non-safety-sensitive school district positions. The court narrowed the class to the jobs she had applied for – tutor, substitute teacher, and early childhood aide – and subsequently denied her injunctive relief. The court held that the School District had a “special need” to drug test substitute teacher applicants where “a momentary lapse of attention…could be the difference between life and death.” Friedenberg v. Sch. Bd. of Palm Beach Cty., 257 F.Supp.3d 1295, 1308 (S.D. Fla. June 14, 2017). Balancing the interests, the court recognized substitute teachers’ privacy expectations, but found the search relatively unintrusive. By comparison, the government had a compelling need to protect children under a substitute teacher’s charge. Interlocutory appeal followed.

The Eleventh Circuit reviewed the case as an issue of first impression, drawing from comparable “special needs” contexts recognized by the Supreme Court in its analysis. In addition, the court relied on Sixth Circuit case law. In Knox, the court upheld suspicionless teacher drug testing by characterizing the role as a quasi-safety-sensitive position involving the “unique” responsibility to “protect the students they serve.” Knox Cty. Educ. Ass’n v. Knox Cty. Bd. of Educ., 158 F.3d 361, 374-75 (6th Cir. 1998).

Applying this backdrop, the Eleventh Circuit was satisfied that the drug testing as applied to substitute teacher applicants was reasonable. The court found a “special need” by focusing on the safety-sensitive aspects of the job, including: alone-time with students, monitoring student safety, and reporting and addressing safety concerns, including health problems, drug use, or suspected abuse. Weighing the competing interests, the court found teachers had a diminished privacy interest based on their role in the “heavily regulated” public school setting the Supreme Court consistently recognizes as “unique” for Fourth Amendment purposes. By comparison, the court concluded that the government, acting as students’ temporary guardian, had a sizable interest in keeping drug users away from students. Moreover, the court was satisfied that the test reasonably addressed this interest by deterring drug user applicants. Accordingly, the Eleventh Circuit affirmed the denial of relief.

Though Friedenberg specifically analyzed the duties of substitute teachers, the decision sheds light on drug testing other school district job applicants. There are now two Circuit cases classifying public school teaching, whether salaried or substitute, as a “special needs” exception. Though the Eleventh Circuit presents Knox’s safety-sensitive characterization of teaching as the majority, this has historically been a minority position. This classification is hard to refute, however, in a post-Parkland world where teacher active shooter training is the norm.

For other job positions less-obviously linked to student safety, school districts should examine their written job descriptions. The Eleventh Circuit relied on the specific wording from the Substitute Teacher Handbook to inform its analysis. The Handbook did a good job linking the role to student safety by describing responsibilities to address student behavior and emergencies. Like Palm Beach County, other school districts should thoroughly document each position’s student safety duties in writing.

Next, school districts should make conditional offers before requiring a drug test. This practice limits the intrusiveness of the search in relation to applicants’ privacy expectations. Notably, the district court did not find that substitute teachers had a diminished privacy interest though the Eleventh Circuit did. As such, school districts should be mindful of the balance between the competing private and public concerns and avoid tipping the scales against their favor.

Lastly, school districts should make sure the position applied for is sufficiently linked to student safety. Whether applicants may be tested depends on the specific job’s relationship to safety risks from drug use. The Eleventh Circuit noted that janitors and some administrators do not past this threshold. Outside the public school setting, Florida courts have struck down across-the-board drug testing for city jobs unrelated to safety risks. See Voss v. City of Key West, 24 F. Supp. 3d 1219 (S.D. Fla. May 9, 2014). Following the Friedenberg decision, School Districts need to be mindful of the dual obligation to obey Fourth Amendment protections in addition to safeguarding students.