Special Rights For Special Needs

As Jacob Sullum notes at Reason, the good news is that the en banc Eighth Circuit held that blanket drug testing for students at Linn State, or officially, State Technical College of Missouri, was unconstitutional.

Last week a federal appeals court ruled that requiring incoming students at a state college to surrender their urine for drug testing violates the Fourth Amendment’s ban on unreasonable searches. The decision is a welcome departure from a body of case law that usually defers to the government’s perception of “special needs” that supposedly justify analyzing people’s bodily fluids without a warrant or any evidence that they pose a threat to public safety.

The bad news is that the kids still have to pee in a cup if they want to be in certain programs at Linn State, characterized as “safety sensitive.”

Linn State’s primary argument was that a drug-free school was an inherently good cause.

The court concedes that a stated purpose of Linn State’s drug-testing policy is “to provide a safe, healthy, and productive environment for everyone who learns and works at Linn State Technical College by detecting, preventing, and deterring drug use and abuse among students.” In this regard, Linn State argues that fostering such an environment in all educational departments, and not just those that are safety sensitive, justifies disregarding warrant and probable cause requirements.

Given that the use of illegal drugs is illegal, it’s not an entirely crazy argument. Nobody forces a student to apply to, to attend, Linn State. If they choose to do so, do they not implicitly consent to peeing in a cup? Sure, there’s an argument that students already in attendance didn’t get that option, but then, the school could exempt them and follow up with new students. It’s a two-year tech school, so the worst that could happen is a class of drugged-up kids.

But the 8th Circuit rejected the generalized notion that attendance at a state school was reason enough to ignore the prohibition against suspicionless drug testing. Instead, it looked to the “special needs” test to ignore the Fourth Amendment.

While the Constitution generally prohibits searches conducted without individualized suspicion, the Supreme Court has recognized exceptions to the general rule in certain well-defined circumstances, including those in which the government has “special needs, beyond the normal need for law enforcement.” Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring)). In those cases in which special needs have been shown, “it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” Nat’l Treasury Union v. Von Raab, 489 U.S. 656, 665-66 (1989). Linn State argues that the need to enhance safety and the need to foster a drug-free environment constitute the special needs that justify drug testing all incoming students without any individualized suspicion of drug use.

The crux of the school’s argument stems from cases involving jobs that involved public safety, in particular railway safety. One guy on drugs at the switch could kill a lot of people on a train.

In considering the government’s interest in drug and alcohol testing, the Court explained that “[e]mployees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.”

What constitutes “fraught” was never clarified, but the word “employees” should stand out. The Court reasoned that certain job duties were so critical as to overcome the need for suspicion of drug use before testing. Of course, nobody forced a person to take a job that involved drug testing, and if the person wanted employment in a position where he put others’ lives at risk, then his interest in privacy was secondary to the interests of others in surviving his shift.

But students? Linn State’s secondary argument was that it was a technical college, where people did technical things that could, if one was incapable of paying sufficient attention because of drugs, cause harm, both to the person using power equipment and those around them. The risk of harm to oneself alone wasn’t sufficient, but the risk of harm to others, who didn’t take drugs and didn’t get a choice as to whether the guy with his finger on the switch was high, pushed it over the edge.

We conclude that the district court properly applied Von Raab when it conducted a program-by-program analysis. The category of students who may be drug tested as a condition of attending Linn State is composed only of those students who enroll in safety-sensitive educational programs. By requiring all incoming students to be drug tested, Linn State defined the category of students to be tested more broadly than was necessary to meet the valid special need of deterring drug use among students enrolled in safety-sensitive programs.

The “special needs” exception was thus extended from employment to education, with the limitation that it required more than the generic “drugs are bad” to apply to all students. Instead, it’s just some students, based upon a factual review of programs by a judge to determine whether they’re “fraught with risk of injury to others.” Seems to make sense, right?

Except you know what else is “fraught with risk of injury to others”? How about being placed in charge of a speeding 2000 pound missile aimed at some lovely child’s mommy? We call this driving a car, and it is, without a doubt, “fraught with risk.” No one forces you to get a license, to get behind a wheel and drive a car. If the guy in the car next to you happens to enjoy a little PCP in his spare time, it’s not as if he asked your permission to do so. And should his impairment by dint of drugs cause his vehicle to strike yours in an unacceptable way, your life will end.

Special enough for you?

There is no exception in the Fourth Amendment with the words “special needs.” Then again, there is a long list of exceptions to the Fourth Amendment that go unmentioned but exist because the Supreme Court read “unreasonable” to be a gap big enough to drive a Mack truck through. And, indeed, under the circumstances presented by a case, most of us wouldn’t have any strong personal objection to living another day because of the exception.

But when they’re based on language so easily applied to the mundane activities of life that it becomes difficult, if not impossible, to craft a rational distinction that prevents the exception from consuming the right, there is a problem with the test. For the students at Linn State who will be trained on certain equipment (though, ironically, not “heavy equipment,” as the district court judge didn’t find that to be particularly dangerous, never having had the teeth of a backhoe’s bucket come down on his head), the risk is sufficiently fraught. What risk to others isn’t?

2 thoughts on “Special Rights For Special Needs

  1. Kirk Taylor

    Rabbit Hole Alert!

    Isn’t it amazing how often cars ruin specious arguments about safety?
    My favorite is comparing risks of gun violence victimization and terrorism risks to the risks of driving a car.

    My counter argument to terrorism is the fact that you are far FAR more likely to have your right to life or freedom violated by the government (generally a law enforcement arm) than you are to be a victim of a terrorist attack.

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