Drug Testing of Substitute Teachers Was Lawful

​A school district's mandatory prehire drug testing of substitute teacher applicants did not violate the Fourth Amendment of the U.S. Constitution, the 11th U.S. Circuit Court of Appeals ruled.

An applicant applied for several positions, including tutor, substitute teacher and early childhood aide, with the Palm Beach County, Fla., school district. The online application required that she agree to be drug tested. In February 2017, the applicant received a conditional offer to become a substitute teacher. She was told that she would need to be fingerprinted for a full background check and pass a drug test before she could be officially hired. She was fingerprinted but refused to submit to drug testing.

The drug testing was required under the school district's drug and alcohol-free workplace policy, which provides for drug testing to be performed in conformity with Florida's administrative code. The school district also has a separate policy requiring suspicionless drug testing of employees and volunteers who perform safety-sensitive functions.

[SHRM members-only sample policy: Random Drug Testing Policy]

Under the pre-employment drug-testing policy, an applicant typically provides a urine sample in the privacy of a bathroom stall. While the applicant provides the sample, collection site staff remain in the room but outside the stall. Before collection, applicants are asked to wash their hands, empty their pockets, remove outer clothing and place all personal belongings aside.

After collection, the testing staff observe the urine sample for evidence of tampering. If tampering is suspected, a supervisor may approve collection of a second sample under direct observation by a person of the same gender as the applicant.

Select information from the drug test is reported to the school board. This information includes positive test results and the substance or substances for which the specimen tested positive, and whether an individual refused testing or left the testing site. Five individuals within the school board's Department of Risk and Benefits Management receive this information, and the results are held in a confidential electronic medical folder and are not reported to any law enforcement official. The hiring school site or department is informed only that the applicant did not pass a medical examination.

A substitute teacher's typical workday in the school district includes five to six hours of classroom time, generally alone with students. The school district's substitute teacher handbook states that a substitute teacher's specific responsibilities include addressing student behavior and emergencies.

In February 2017, the applicant sued the school board in the U.S. District Court for the Southern District of Florida, claiming that the requirement of suspicionless drug testing of employment applicants violated the Fourth Amendment. She sought declaratory and injunctive relief, including a preliminary injunction to block the school board's practice of suspicionless drug testing.

The district court determined that the applicant could challenge the application of the drug-testing policy only to substitute teachers. It found that the drug-testing policy did not contradict the requirements of the Fourth Amendment, and thus denied the preliminary injunction. The applicant appealed the decision to the 11th Circuit.

The appeals court reviewed the U.S. Supreme Court's decisions on suspicionless drug testing, which recognize that suspicionless drug testing of applicants and employees is justified in some contexts. For example, the Supreme Court has allowed suspicionless drug testing of customs employees preventing drug trafficking and carrying firearms because drug abuse by these employees could endanger the public safety. The Supreme Court has also allowed school systems to perform suspicionless drug testing of students who engage in athletics and other extracurricular activities based on the school system's responsibilities as guardian and tutor of children entrusted to its care.

The appeals court found that this case law permitting drug testing of those in safety-sensitive positions applied to prospective substitute teachers. The school district's need to guarantee a safe and effective learning environment presented a compelling justification for the suspicionless drug testing. The appeals court thus upheld the district court's denial of a preliminary injunction.

Friedenberg v. School Board of Palm Beach County, 11th Cir., No. 9:17-cv-80221-RLR (Dec. 20, 2018).

Professional Pointer: Drug testing by employers is highly regulated under state and federal law, including the U.S. Constitution, which applies to public employers. Despite these regulations, public employers can generally perform suspicionless drug testing of applicants for jobs that protect the health or safety of the public or vulnerable members of society, such as children.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on pre-employment testing.]