Appeal by Plaintiffs from amended order entered 6 February
2008 by Judge James U. Downs in Graham County Superior Court.
Heard in the Court of Appeals 1 December 2008.
Tin, Fulton, Walker & Owen, by S. Luke Largess, for
Plaintiffs-Appellants.
Roberts & Stevens, P.A., by K. Dean Shatley, II, and
Christopher Z. Campbell, for Defendant-Appellee.
STEPHENS, Judge.
“The greatest dangers to liberty lurk in
insidious encroachment by men of zeal,
well-meaning but without understanding.”
(See footnote 1)
The Graham County Board of Education enacted a policy
mandating the random, suspicionless drug and alcohol testing of all
Board employees. Plaintiffs brought suit contending that thepolicy violates the North Carolina Constitution's guarantees
against unreasonable searches and seizures. The trial court
granted summary judgment in favor of the Board of Education. We
reverse.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 2006, the Graham County Board of Education employed
approximately 250 teachers, staff, and administrators to serve
approximately 1,300 students in three public schools__a high
school, a middle school, and an elementary school. All Board
employees were subject to the Board's “Alcohol/Drug-Free Workplace
Policy” which required all job applicants to pass “an alcohol or
drug test” as a condition of employment; required all employees to
submit to “an alcohol or other drug test” upon a supervisor's
“reasonable cause” to believe that the employee was using alcohol
or illegal drugs, or abusing prescription drugs, in the workplace;
and required “[a]ny employee placed on the approved list to drive
school system vehicles” to submit to “random drug tests.”
Additionally, the policy mandated the suspension of any employee
who, in a supervisor's opinion, was impaired by alcohol or drugs in
the workplace.
The Board of Education enacted a new testing policy on 5
December 2006. Significantly, the new policy required all
employees to submit to “drug or alcohol testing” upon the policy's
implementation and required all employees to submit to random,
suspicionless testing thereafter. On 20 April 2007, Plaintiffs
Susan Jones__a teacher at the County's high school__and The NorthCarolina Association of Educators__a statewide association of
public school teachers, support personnel, and administrators to
which approximately fifty Board of Education employees
belonged__filed a complaint seeking to have the new policy declared
violative of the North Carolina Constitution.
The Board of Education subsequently revised the new testing
policy, answered the complaint, and filed a motion for judgment on
the pleadings. The Board attached a copy of the new policy, as
revised (“the policy”), to the answer. The policy states that
[a]ll positions of employment within the
Graham County School system, including but not
limited to administrative, classified,
non-classified, part time, full time,
temporary, and permanent, shall be designated
as safety sensitive positions due to the fact
that these positions require work where an
inattention to duty or error in judgment will
have the potential for significant risk or
harm to those entrusted to their care, and the
possibility or probability of contact with
students and the influence employees have
could cause irreparable damage to the health
and well being of the students.
The policy specifically defines the classes of employees subject to
the policy as follows:
1) athletic coaches[;]
2) bookkeepers[;]
3) cafeteria personnel[;]
4) centralized administrative support
personnel[;]
5) centralized support personnel[;]
6) custodians[;]
7) directors and supervisors[;]
8) extracurricular advisors[;]
9) maintenance personnel[;]
10) other instructional personnel[;]
11) principals and assistant principals[;]
12) school-based administrative support
personnel[;]
13) student support personnel[;] 14) superintendents[;]
15) teachers[;]
16) teacher assistants[;]
17) transportation personnel excluding bus
drivers who are covered separately[; and]
18) substitute teachers[.]
Under the policy, the Board of Education may perform “drug or
alcohol testing” in the following instances:
a. Of any employee who manifests “reasonable
suspicion” behavior. . . .
b. Of any employee who is involved in an
accident that results or could result in
the filing of a Workers' Compensation
claim.
c. On a random basis of any employee.
d. Of any employee who is subject to drug or
alcohol testing pursuant to federal or
state rules, regulations or laws.
The policy defines “[d]rug testing” as “the scientific analysis of
urine, blood, breath, saliva, hair, tissue, and other specimens of
the human body for the purpose of detecting a drug or alcohol.”
The policy states that “[t]he collection site is Graham County
Schools” and that “[t]he procedures for random selection of
employees and the procedures for collection shall be the procedures
adopted by the Board of Education as set forth in the random
procedure and the collection procedure utilized by Keystone
Laboratories[,]” a testing facility located in Asheville. While
the policy does not particularly prescribe the specific “specimens”
an employee is required to submit, Keystone Laboratories'
collection procedure only details the collection of employees'
urine. Under the collection procedure, employees are required to
“go into the toilet area and void into [a] container.” Thecollection method “does
not involve the direct visual observation
of employees while providing a urine sample, unless extraordinary
circumstances exist as stated in paragraph twelve . . . of the
procedure.” Paragraph twelve provides, in part, as follows:
For walk-in specimens (those collected in the
laboratory), consider an out of range
temperature [of the specimen] as reasonable
evidence of adulteration or substitution, and
collect another specimen under direct
observation by a same-gender laboratory
employee.
An “out of range temperature” of a specimen collected “in the
laboratory” is the only circumstance under which an employee may be
directly observed passing urine. Neither the policy nor the
collection procedure identify either the entity responsible for
collecting employees' specimens or the entity responsible for
transporting specimens to Keystone Laboratories.
The policy does not detail the “scientific analysis” that
Keystone Laboratories will perform on submitted specimens. The
policy does not indicate to whom Keystone Laboratories will submit
test results. The Graham County Schools superintendent, however,
is required to file all test results in a “locked file cabinet[.]”
The policy provides that
[a]ny employee who is found through drug or
alcohol testing to have in his or her body a
detectable amount of an illegal drug or of
alcohol will result in a letter of reprimand
being placed in the personnel file and the
employee will be offered a one-time
opportunity to enter and successfully complete
a rehabilitation program that has been
approved by the Graham County Board of
Education.
In the event of a positive test, an employee can submit “the
written test result” to an “independent medical review officer” and
can obtain and independently test “the remaining portion of the
urine specimen that yielded the positive result.” The policy also
provides that
[a]n applicant or employee whose drug or
alcohol test reported positive will be offered
the opportunity of a meeting to offer an
explanation. The purpose of the meeting will
be to determine if there is any reason that a
positive finding could have resulted from some
cause other than drug or alcohol use. Graham
County Board of Education, through its health
and/or human resource officials, will judge
whether an offered explanation merits further
inquiry.
The policy states that test results will not be reported to law
enforcement “unless otherwise required by law[.]”
At the 7 August 2007 Civil Session of Graham County Superior
Court, the trial court conducted a hearing on (1) Plaintiffs'
motion for summary and declaratory judgment, (2) the Board's motion
for judgment on the pleadings, and (3) the Board's motion for
summary judgment. The evidence before the trial court included the
deposition testimony and affidavit of the school system's
superintendent, the deposition testimony of two of the school
system's principals, and the deposition testimony and affidavits of
the individual Board members: William Jackie Adams, Mitchell E.
Colvard, Ricky Kyle Davis, Pamela Carringer Moody, and Lois Ann
Pressley.
Mr. Colvard, the Board's chairman, testified that he does not
believe that drug testing constitutes either a search of a personor an invasion of privacy. Mr. Colvard further testified__as did
every other Board member__that there was no evidence that any
student had ever been injured or put at risk of being injured by an
employee whose body contained “a detectable amount of an illegal
drug or of alcohol[.]” It is undisputed that there was no evidence
of a drug “problem” among Board employees. As to why the Board
enacted the policy, Ms. Moody testified as follows:
Q. . . . Okay. Explain to me, if you
can, if there's been no student in the 30-plus
years that you've been associated with the
school system who's been impacted by -- harmed
in anyway [sic] by an employee using drugs or
alcohol, and you've had one employee other
than a bus driver failing a mandatory test,
one employee identified in the last 20 years,
prior to two weeks ago, as having drugs on
campus, what is the problem among the school
system staff that you're trying to address?
A. As I stated earlier, that this
county is becoming aware more than ever of the
issue of drugs in our county. I could bring
you papers [sic] after paper after paper, and
it is all people I know that I went to school
with, a lot of them, graduated with, some of
them high honors, they're -- that are behind
bars as we speak.
. . . .
[Q.] Yes, ma'am. For the record, your
counsel will know what I mean by this. But
I'm going to move to strike your last answer,
because I don't think it was responsive to the
question I asked you. Let me ask you the
question again, okay?
Q. . . . What problem -- identified
problem with your staff is this policy going
to address that the prior policy did not
address?
A. Our ---
Q. Or are you ---
A. --- problem?
Q. --- or are you trying to preempt a
potential problem?
A. The first part is a question. If I
understand, let me see. All we did to change
our policy was to classify the employees. The
policy didn't change; it just classified the
employees that are subject to random drug
testing.
. . . .
Q. And my question again is, what
problem did the board identify with the staff
under the existing policy that required the
change to the new policy?
A. I feel like that it -- it was just
better clarification with the employees,
themself [sic], who does this include.
Because previously, it was just bus drivers
and people who are custodians.
Mr. Adams testified as follows:
Q. What issue were you, as a board
member, trying to address by broadening the
definition of safety sensitive to include
everybody?
A. Just to make the Graham County
Schools a safer place for the student [sic]
and the employees.
Q. Okay, and my question is, how was it
unsafe prior to your changing the policy?
What evidence was there -- I mean, what --
that's what I meant by what problem you were
addressing. If there was no evidence of any
student ever being harmed up to that point and
other than . . . two people's rumors no other
information about drug use by staff, what
issue were you addressing by broadening the
definition?
A. Well, it's the safety-sensitive
positions -- it would be hard to determine,
you know, to me, and if -- in my opinion,
they're all safety-sensitive positions atschool: teacher, bus driver, whatever
position you hold.
So I don't -- I don't know that they
[sic] were a problem -- is a reason that we
changed the policy to all safety sensitive,
you know, I just -- I don't . . .
Q. So you were not trying to -- you
were not trying to address an actual problem
at that point?
A. No.
Ms. Pressley testified as follows:
Q. Okay. Can you tell me in your view
why the prior policy needed to be changed?
A. To keep the kids -- to keep the kids
safe and make sure they [sic] ain't nobody on
drugs.
Mr. Crisp, the only Board member to vote against the policy,
testified that the Board never discussed whether there were any
safety concerns or safety issues related to employee drug use.
The school system's superintendent testified in his deposition
that the old policy was effective in dealing with drug and alcohol
issues among Board employees. The superintendent stated in his
affidavit, however, as follows:
7. As to each employment category, the
safety issues relevant to children are as
follows:
a.
High-Level of Direct Student
Contact. Several categories have
extensive, repeated, and daily
contact with students. These
employees supervise students and/or
have the opportunity for direct
physical contact with students.
These categories include:
i. Athletic coaches, bookkeepers,
cafeteria personnel,
custodians, extracurricularadvisors, maintenance
personnel, other instructional
personnel, principals,
assistant principals, school-
based administrative support
personnel, student support
personnel, teachers, teacher
assistants, and substitute
teachers.
b.
Intermittent Contact with Students:
The remaining categories of
employees oversee the instruction
program of the school system and
have the opportunity for significant
contact with students. In addition
to activities within the schools
such as teacher observations, these
employees may also serve in direct
supervisory roles for
extracurricular activities and
school-approved field trips. These
categories include:
i. Centralized administrative
support personnel, centralized
support personnel, directors,
supervisors, and
superintendents.
c.
Access to Hazardous Substances and
Dangerous Equipment: Due to the
nature of the school environment all
employees have some access to
hazardous substances and/or
dangerous equipment. The
categories of employees with direct
access to such substances or
materials as part of their direct
job duties include:
i. Athletic coaches, cafeteria
personnel, custodians,
maintenance personnel,
science/chemistry teachers and
teacher assistants,
transportation personnel (e.g.
mechanics, bus attendants,
etc.) and vocational teachers
and teacher assistants (e.g.
auto mechanics, constructiontechnology, child care, and
home economics).
8. Finally,
it is also important to note a
pre-school is housed in the central
office and the central office shares a
parking lot with the elementary school.
Thus, every employee of the Graham County
schools is in the position to have
significant contact with students in some
manner during the normal workday.
On 18 January 2008, the trial court granted the Board's motion
for summary judgment and denied “Plaintiffs' [sic] Motions for
Judgment on the Pleadings and for Summary Judgment[.]” In an
amended order entered 6 February 2008, the trial court granted the
Board's motion for summary judgment, denied the Board's motion for
judgment on the pleadings, and denied Plaintiffs' motions for
summary and declaratory judgment. From the amended order,
Plaintiffs appeal.
II. STANDARD OF REVIEW
A party against whom a declaratory judgment is sought may
move, at any time, for a summary judgment in his favor. N.C. Gen.
Stat. § 1A-1, Rule 56(b) (2007). A trial court must grant summary
judgment “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that any party is entitled to a judgment as a
matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007). This
Court reviews an order granting summary judgment
de novo.
In re
Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008);
see
also Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (“It is well settled that
de novo review is ordinarily appropriate in cases where
constitutional rights are implicated.”) (citing
State v. Rogers,
352 N.C. 119, 124, 529 S.E.2d 671, 674-75 (2000);
Ornelas v.
United States, 517 U.S. 690, 696-97, 134 L. Ed. 2d 911, 918-19
(1996)).
III. ANALYSIS
We first address Plaintiffs' contention that the policy
violates Article I, Section 20 of the North Carolina Constitution,
which provides as follows:
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.
N.C. Const. art. I, sec. 20. Plaintiffs assert that “[o]n its
face, the . . . policy violates the prohibition against general
warrants[,]” and that the policy violates Article I, Section 20's
guarantee against unreasonable searches conducted by the
government.
(See footnote 2)
A. General Warrants
We are inclined to agree that the policy violates the
prohibition against general warrants.
See In re Stumbo, 357 N.C.
279, 297, 582 S.E.2d 255, 266 (2003) (Martin, J., concurring)
(“[P]ermitting government actors 'to search suspected places
without evidence of the act committed' . . . is tantamount to
issuing a general warrant expressly prohibited by the North
Carolina Constitution.”) (quoting N.C. Const. art. I, sec. 20).
However, because we hold, for the reasons set forth below, that the
Board's policy violates Article I, Section 20's guarantee against
unreasonable searches, we do not reach the question of whether the
policy violates the prohibition against general warrants.
B. Reasonableness
The language of Article I, Section 20 “'differs markedly from
the language of the Fourth Amendment to the Constitution of the
United States.'”
State v. McClendon, 350 N.C. 630, 635, 517 S.E.2d
128, 132 (1999) (quoting
State v. Arrington, 311 N.C. 633, 643, 319
S.E.2d 254, 260 (1984));
see also Corum v. Univ. of N. Carolina,
330 N.C. 761, 783, 413 S.E.2d 276, 290 (“Our Constitution is more
detailed and specific than the federal Constitution in the
protection of the rights of its citizens.”) (citing
Lamb v.
Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983); Chief
Justice James G. Exum, Jr.,
Dusting Off Our State Constitution, 33
State Bar Quarterly, No. 2 6-8 (1986)),
reh'g denied, 331 N.C. 558,
418 S.E.2d 664,
cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431
(1992). Nevertheless, Article I, Section 20 provides protection
“similar” to the protection provided by the Fourth Amendment,
Statev. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008);
Stumbo,
357 N.C. at 293, 582 S.E.2d at 264 (Martin, J., concurring), and it
is well-settled that both Article I, Section 20 and the Fourth
Amendment prohibit the government from conducting “unreasonable”
searches.
Von Raab, 489 U.S. at 665, 103 L. Ed. 2d at 701;
Stumbo, 357 N.C. at 292, 582 S.E.2d at 264 (Martin, J.,
concurring);
McClendon, 350 N.C. at 636, 517 S.E.2d at 132.
Whether a search is unreasonable, and therefore prohibited by
Article I, Section 20, and the proper tests to be used in resolving
that issue “'are questions which can only be answered with finality
by [the North Carolina Supreme Court].'”
McClendon, 350 N.C. at
635, 517 S.E.2d at 132 (quoting
Arrington, 311 N.C. at 643, 319
S.E.2d at 260).
The North Carolina Supreme Court has stated that we may not
construe provisions of the North Carolina Constitution as according
lesser rights than are guaranteed by the federal Constitution.
Virmani v. Presbyterian Health Services Corp., 350 N.C. 449, 475,
515 S.E.2d 675, 692 (1999);
State v. Jackson, 348 N.C. 644, 648,
503 S.E.2d 101, 103 (1998);
Carter, 322 N.C. at 713, 370 S.E.2d at
555. As explained by the Supreme Court in
Virmani,
“because the United States Constitution is
binding on the states, the rights
it
guarantees must be applied to every citizen by
the courts of North Carolina, so no citizen
will be 'accorded lesser rights' no matter how
we construe the state constitution. For all
practical purposes, therefore, the only
significant issue for this Court when
interpreting a provision of our state
Constitution paralleling a provision of the
United States Constitution will always be
whether the state Constitution guaranteesadditional rights to the citizen above and
beyond those guaranteed by the parallel
federal provision. In this respect, the
United States Constitution provides a
constitutional floor of fundamental rights
guaranteed all citizens of the United States,
while the state constitutions frequently give
citizens of individual states basic rights in
addition to those guaranteed by the United
States Constitution.”
Virmani, 350 N.C. at 475, 515 S.E.2d at 692 (quoting
Jackson, 348
N.C. at 648, 503 S.E.2d at 103). Accordingly, we first determine
whether the policy violates the Fourth Amendment; if so, the
policy also violates Article I, Section 20.
See id.;
Carter, 322
N.C. at 714, 370 S.E.2d at 556 (“[A]n individual's constitutional
rights under the Constitution of North Carolina must receive at
least the same protection as such rights are accorded under the
Federal Constitution.”) (citing
PruneYard Shopping Ctr. v. Robins,
447 U.S. 74, 64 L. Ed. 2d 741 (1980)). If we determine that the
policy does not violate the Fourth Amendment, we may then proceed
to determine whether Article I, Section 20 provides “'basic rights
in addition to those guaranteed by the [Fourth Amendment].'”
Virmani, 350 N.C. at 475, 515 S.E.2d at 692 (quoting
Jackson, 348
N.C. at 648, 503 S.E.2d at 103).
The reasonableness of a governmental search is generally
determined “by balancing the nature of the intrusion on the
individual's privacy against the promotion of legitimate
governmental interests.”
Bd. of Educ. of Indep. Sch. Dist. No. 92
of Pottawatomie Cty. v. Earls, 536 U.S. 822, 829, 153 L. Ed. 2d
735, 743 (2002) (citing
Delaware v. Prouse, 440 U.S. 648, 654, 59
L. Ed. 2d 660 (1979)). But “'some quantum of individualizedsuspicion is usually a prerequisite to a constitutional search or
seizure.'”
Samson v. California, 547 U.S. 843, 855 n.4, 165 L. Ed.
2d 250, 261 n.4 (2006) (quoting
United States v. Martinez-Fuerte,
428 U.S. 543, 560, 49 L. Ed. 2d 1116, 1130 (1976));
City of
Indianapolis v. Edmond, 531 U.S. 32, 37, 148 L. Ed. 2d 333, 340
(2000) (“A search . . . is ordinarily unreasonable in the absence
of individualized suspicion of wrongdoing.”) (citing
Chandler v.
Miller, 520 U.S. 305, 308, 137 L. Ed. 2d 513 (1997)). The Fourth
Amendment, however, “'imposes no irreducible requirement of
[individualized] suspicion.'”
Earls, 536 U.S. at 829, 153 L. Ed.
2d at 744 (quoting
Martinez-Fuerte, 428 U.S. at 561, 49 L. Ed. 2d
at 1130). “'[I]n certain limited circumstances, the Government's
need to discover . . . latent or hidden conditions, or to prevent
their development, is sufficiently compelling to justify the
intrusion on privacy entailed by conducting . . . searches without
any measure of individualized suspicion.'”
Id. (quoting
Von Raab,
489 U.S. at 668, 103 L. Ed. 2d at 704);
see also Skinner, 489 U.S.
at 624, 103 L. Ed. 2d at 664 (“In limited circumstances, where the
privacy interests implicated by the search are minimal, and where
an important governmental interest furthered by the intrusion would
be placed in jeopardy by a requirement of individualized suspicion,
a search may be reasonable despite the absence of such
suspicion.”). Thus, a suspicionless search may be reasonable under
the Fourth Amendment where “'special needs, beyond the normal need
for law enforcement, make the warrant and probable-cause
requirement impracticable.'”
Griffin v. Wisconsin, 483 U.S. 868,873, 97 L. Ed. 2d 709, 717 (1987) (quoting
New Jersey v. T.L.O.,
469 U.S. 325, 351, 83 L. Ed. 2d 720, 741 (1985) (Blackmun, J.,
concurring)).
Where the government alleges “special needs” in justification
of a suspicionless search, “courts must undertake a
context-specific inquiry, examining closely the competing private
and public interests advanced by the parties.”
Chandler, 520 U.S.
at 314, 137 L. Ed. 2d at 523 (citing
Von Raab, 489 U.S. at 665-66,
668, 103 L. Ed. 2d 685). An important consideration in conducting
the inquiry is whether there is “any indication of a concrete
danger demanding departure from the Fourth Amendment's” usual
requirement of individualized suspicion.
Id. at 319, 137 L. Ed. 2d
at 526. The purpose of the inquiry is “to determine whether it is
impractical to require a warrant or some level of individualized
suspicion in the particular context.”
Von Raab, 489 U.S. at 665-
66, 103 L. Ed. 2d at 702 (citing
Skinner, 489 U.S. at 619-20, 103
L. Ed. 2d 639). Conducting the inquiry, the United States Supreme
Court has upheld suspicionless searches in the following instances:
(1) drug testing of students seeking to participate in competitive
extracurricular activities,
Earls, 536 U.S. 822, 153 L. Ed. 2d 735,
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 132 L. Ed. 2d 564
(1995); (2) searches of probationers,
Griffin, 483 U.S. 868, 97
L. Ed. 2d 709; (3) drug testing of railroad employees involved in
train accidents,
Skinner, 489 U.S. 602, 103 L. Ed. 2d 639; (4)
drug testing of United States customs officials seeking promotion
to certain sensitive positions,
Von Raab, 489 U.S. 656, 103 L. Ed.2d 685; and (5) searches of government employees' offices by the
employer,
O'Connor v. Ortega, 480 U.S. 709, 94 L. Ed. 2d 714
(1987).
We begin our inquiry by attempting to examine the
intrusiveness of the proposed testing procedure.
(See footnote 3)
It
appears from
the evidence in the record that the Board will only perform a
scientific analysis of employees' urine. However, the policy
itself does not specify the “bodily specimen” employees will be
required to produce. On the contrary, a plain reading of the
policy reveals that the Board “may perform” a “scientific analysis
of [employees'] urine, blood, breath, saliva, hair, tissue, and
other specimens of the human body for the purpose of detecting a
drug or alcohol.” We acknowledge that Keystone Laboratories'
collection procedure only details the collection of employees'
urine and that the policy in one instance
suggests that employees
will only be required to produce urine. Nevertheless, assuming the
Board only tests employees' urine, we emphasize that the policy
provides that “[a]ny employee who is found through drug or alcohol
testing to have in his or her body
a detectable amount of an
illegal drug
or of alcohol” will be suspended. (Emphasis added.)
Although a litany of other provisions in the policy bear directlyon the intrusiveness of the testing procedure, we find it
unnecessary to venture beyond this provision to state that the
policy is remarkably intrusive.
We next consider whether Board employees have a reduced
expectation of privacy by virtue of their employment in a public
school system. Public employees may have reduced expectations of
privacy if their employment carries with it safety concerns for
which the employees are heavily regulated.
Skinner, 489 U.S. at
627, 103 L. Ed. 2d at 666. By way of illustration, chemical
weapons plant employees are heavily regulated for safety.
Thomson
v. Marsh, 884 F.2d 113 (4th Cir. 1989) (per curiam). There is no
evidence in the record before us, however, that any of the Board's
employees are regulated
for safety. We question whether the Board
could produce such evidence. The Board errantly relies on the
premise that “Fourth Amendment rights . . . are different in public
schools than elsewhere; the 'reasonableness' inquiry cannot
disregard the schools' custodial and tutelary responsibility for
children.”
Vernonia, 515 U.S. at 656, 132 L. Ed. 2d at 576. The
Board, however, fails to account for the explicit teaching of the
Supreme Court that because “the nature of [the schools' power over
schoolchildren] is custodial and tutelary, [the schools' power]
permit[s]
a degree of supervision and control [over schoolchildren]
that could not be exercised over free adults.”
Id. at 655, 132 L.
Ed. 2d at 576. We are unable to conclude from this record that any
of the Board's employees have a reduced expectation of privacy by
virtue of their employment in a public school system. Finally, the record in the case at bar is wholly devoid of any
evidence that the Board's prior policy was in any way insufficient
to satisfy the Board's stated needs. The Board acknowledges that
there is no evidence in the record of any drug problem among its
employees. There is also a complete want of evidence that any
student or employee has ever been harmed because of the presence of
“a detectable amount of an illegal drug or of alcohol” in an
employee's body. We agree that the Board need not wait for a
student or employee to be harmed before implementing a preventative
policy. However, the evidence completely fails to establish the
existence of a “concrete” problem which the policy is designed to
prevent. The need to promote an anti-drug message is “symbolic,
not 'special,' as that term draws meaning from [the decisions of
the United States Supreme Court].”
Chandler, 520 U.S. at 322, 137
L. Ed. 2d at 528.
Considering and balancing all the circumstances, we conclude
that the employees' acknowledged privacy interests outweigh the
Board's interest in conducting random, suspicionless testing.
See
T.L.O., 469 U.S. at 337, 83 L. Ed. 2d at 732 (“[E]ven a limited
search of the person is a substantial invasion of privacy.”)
(citing
Terry v. Ohio, 392 U.S. 1, 24-25, 20 L. Ed. 2d 889 (1968)).
Accordingly, we hold that the policy violates Article I, Section
20's guarantee against unreasonable searches.
C. Boesche v. Raleigh-Durham Airport Authority
We reject the Board's assertion that “ample guidance to uphold
the Board's drug testing policy” can be found in
Boesche v.Raleigh-Durham Airport Authority, 111 N.C. App. 149, 432 S.E.2d 137
(1993),
disc. review improvidently allowed and appeal dismissed,
336 N.C. 304, 442 S.E.2d 320 (1994) (per curiam). The plaintiff in
Boesche was an airport maintenance mechanic whose job duties
generally consisted of “performing preventative maintenance and
repairs on airport terminal [HVAC] systems, but plaintiff also had
security clearance to drive a motor vehicle 10 M.P.H. in a
designated area on the apron of the flight area in order to get
access to the systems located on the outside of the building.”
Id.
at 154, 432 S.E.2d at 141. Without expressing that the plaintiff
was suspected of any individualized wrongdoing, the defendants
asked the plaintiff to submit to a urine drug test.
Id. at 150,
432 S.E.2d at 138. The defendants told the plaintiff that the test
was required “pursuant to a Federal Aviation Administration
directive requiring that all employees who drive a motor vehicle in
the airside of the airport must be tested.”
Id. The plaintiff
refused to submit to the test, was fired, and subsequently filed a
complaint alleging
that the actions of the defendants violated
his rights to be free from illegal searches
and invasion of privacy under the Fourth
Amendment to the United States Constitution
and Article I, Sections 20, 35 and 36 of the
North Carolina Constitution; his rights to
due process of law under the Fifth and
Fourteenth Amendments to the United States
Constitution and Article I, Sections 1, 19, 35
and 36 of the North Carolina Constitution;
his right not to be discharged from employment
in bad faith or for reasons contravening
public policy under the common law of North
Carolina; and for the common law tort of
intentional/negligent infliction of emotional
distress.
Id. at 151, 432 S.E.2d at 139. The defendants moved to dismiss the
complaint under Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure, and the trial court granted the defendants' motion.
Id.
On appeal, the plaintiff argued,
inter alia,
that the trial court committed reversible
error in dismissing plaintiff's constitutional
claims against defendant's [sic] random drug
testing procedure policy that afforded
plaintiff no prior notice of testing or test
procedure, that included no guarantee of
confidentiality of test results or immunity
from criminal prosecution in the case of a
positive result, and that led to plaintiff's
termination with no opportunity for a hearing
before an impartial tribunal.
Id. at 155, 432 S.E.2d at 141. The plaintiff additionally argued
that he was not subject to random drug testing because he was
neither “(1) a sensitive public employee because of either safety
or security reasons or (2) an individual suspected of drug use.”
Id. Citing
Skinner, 489 U.S. 602, 103 L. Ed. 2d 639, this Court
stated that random drug testing of public employees is permissible
“where the individual tested was engaged in activity which involved
either public safety or safety concerns for others because it was
a legitimate governmental interest.” 111 N.C. App. at 153-54, 432
S.E.2d at 140. We emphasized that “'there must be a showing by the
employer that the employees required to undergo such testing have
responsibilities or duties which are connected to the safety
concerns of others.'”
Id. at 154, 432 S.E.2d at 140 (quoting
Twigg
v. Hercules Corp., 406 S.E.2d 52, 56 (W.Va. 1990)). Applying those
standards to the facts of that case, this Court stated that “the
record showed that plaintiff was in a position in which publicsafety or the safety of others was an overriding concern[,]” and
this Court found “that plaintiff, if drug impaired while operating
a motor vehicle on the apron of the flight area, could increase the
risk of harm to others.”
Id. at 154, 432 S.E.2d at 140-41. In
affirming the trial court, we held that the “plaintiff was indeed
a sensitive public employee because of safety concerns[]” and that
the plaintiff was “subject to random drug testing as a legitimate
governmental interest.”
Id. at 155, 432 S.E.2d at 141.
We are wholly unconvinced by the Board of Education's argument
that
Boesche is “dispositive” in the case at bar. In stating that
the
Boesche plaintiff was in a position “in which public safety or
the safety of others was an overriding concern,” this Court merely
held that the defendants had made the showing required by
Skinner
that the plaintiff had “duties fraught with such risks of injury to
others that even a momentary lapse of attention can have disastrous
consequences.”
Skinner, 489 U.S. at 628, 103 L. Ed. 2d at 667.
This Court did not hold that
any public employee who, “if drug
impaired . . ., could increase the risk of harm to others” was
subject to urine drug testing. Rather, the Court held that the
plaintiff, “if drug impaired
while operating a motor vehicle on the
apron of the flight area, could increase the risk of harm to
others.” 111 N.C. App. at 154, 432 S.E.2d at 141 (emphasis added).
The holding in
Boesche was limited to the specific facts of
that case. 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'sflight area with the safety concerns inherent in the job duties of
any Board employee. In fact, there is absolutely no evidence in
the record that any Board employee whose body contains “a
detectable amount of an illegal drug or of alcohol” increases the
risk of harm to anyone. For these reasons,
Boesche is not
dispositive in the case at bar.
IV. CONCLUSION
Lest the American people, and the people
of North Carolina in particular, forget the
foundational importance of the Fourth
Amendment right to be secure against
unreasonable searches and seizures, we should
recall that the cherished liberties enjoyed in
our brief historical moment have been
inherited by this generation only because they
have been nurtured and protected by earlier
generations of Americans so driven in their
pursuit of liberty that life itself was not
too great a cost to purchase liberty for
themselves and their posterity.
State v. Barnard, 362 N.C. 244, 259, 658 S.E.2d 643, 652-53 (Brady,
J., dissenting),
cert. denied, ___ U.S. ___, 172 L. Ed. 2d 198
(2008). We are cognizant of the fact that the policy was enacted
by the duly elected representatives of the people of Graham County.
Moreover, the evidence in the record establishes that the policy
had ample support by Board employees. Nevertheless, in our view,
the policy violates Plaintiffs' rights under Article I, Section 20
to be free from unreasonable searches.
(See footnote 4)
Constitutional rights are
not lightly cast aside. The trial court's order is reversed.
REVERSED.
Chief Judge MARTIN and Judge WYNN concur.
Footnote: 1