RALEIGH — The North Carolina Court of Appeals has rejected the Graham County Board of Education’s plans to conduct random, suspicionless drug testing of all its employees. The appeals court found that such testing violated the North Carolina Constitution’s guarantees against unreasonable searches and seizures.
On Dec. 5, 2006, the Graham County school board voted to adopt a new drug policy, authorizing random drug testing of all school system employees, including those with little if any contact with students. The policy was adopted based upon general concern the board expressed about drug use throughout society. The school board did not adopt random drug testing because its previous drug policy had proven to be somehow inadequate; county schools were not facing a drug problem.
Susan Jones, a teacher at Robbinsville High School, and the North Carolina Association of Educators filed a lawsuit challenging the drug testing policy, contending it violated the N.C. Constitution’s protections against unreasonable searches and seizures. After Superior Court Judge James U. Downs sided with the school board, Jones and the NCAE brought the matter before he state’s second highest court, again contending the drug testing provision was unconstitutional.
The constitution’s standard Article I, Section 20 of the North Carolina Constitution states: “General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.”
Though the specific wording of this provision is much different than the Fourth Amendment of the U.S. Constitution, the N.C. Supreme Court has held that the state constitution must be interpreted to provide at least the same protections to liberty as the federal Constitution.
Courts initially analyze claims that government actions violate the protections of the state constitution to see if they violate the U.S. Constitution. If not, a separate examination is then undertaken to determine if the more specifically worded N.C. Constitution provides greater safeguards than its federal counterpart.
Accordingly, the Court of Appeals applied a Fourth Amendment analysis to the case, which involves “balancing the nature of the intrusion on the individual’s privacy against the promotion of legitimate governmental interests.”
Was there a drug abuse problem in schools?
Such an analysis, though, typically involves some suspicion that the person being searched has done something wrong. The government can, in certain cases, legally conduct searches even without such individualized suspicion. In those cases, courts look to see if there is “any indication of a concrete danger demanding departure from the Fourth Amendment’s” general requirement of individualized suspicion.
“Considering and balancing all the circumstances, we conclude that the employees’ acknowledged privacy interests outweigh the Board’s interest in conducting random, suspicionless testing,” wrote Judge Linda Stephens for the appeals court. “Accordingly, we hold that the policy violates Article I, Section 20’s guarantee against unreasonable searches.”
The problem, in the Court of Appeals’ view, was that the school board had decided to conduct intrusive drug tests without any evidence that such tests were needed or appropriate. It rejected the notion that schools were somehow different in this context, that school employees enjoy a lesser expectation of privacy than other government workers.
Public employees may face a reduced expectation of privacy if their line of work is heavily regulated for safety reasons. The school board also pointed out that the U.S. Supreme Court has held that “Fourth Amendment rights … are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.”
No evidence tests needed
“There is no evidence in the record before us, however, that any of the Board’s employees are regulated for safety,” wrote Stephens. The school board’s Fourth Amendment argument was dismissed just as curtly, with Stephens noting that the Supreme Court had held that “the nature of [the schools’ power over schoolchildren] is custodial and tutelary, the schools’ power] permit[s] degree of supervision and control over schoolchildren] that could not be exercised over free adults.”
She also noted that the school board had presented no evidence that their previous drug policy was ineffective or that the school system faced a drug problem.
The appeals court was also not persuaded that a previous case, Boesche v. Raleigh-Durham Airport Authority, served as a precedent worth following. In Boesche, the appeals court upheld the firing of an airport maintenance worker for refusing to take a drug test. The employee in that case was authorized to drive a vehicle along the airport’s flight line to get access to the HVAC units he serviced.
“In the case before us, there is absolutely no evidence in the record which in any way equates the safety concerns inherent in the driving of a motor vehicle on the apron of an airport’s flight area with the safety concerns inherent in the job duties of any Board employee,” said Stephens. The appeals court also tended to view the school board policy as violating Article I, Section 20’s prohibition on general warrants but did not address the issue fully in its opinion.
The school board has decided not to ask the North Carolina Supreme Court to review the case.
The case is Jones v. Graham County Board of Education, (08-477).
Michael Lowrey is an associate editor of Carolina Journal.