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.
Linn State Technical College, now known as the State Technical College of Missouri, started demanding incoming students' urine in 2011 because members of its advisory council thought it was a good idea, not because there was any reason to believe the school had any special drug-related safety problems. "Accidents are not common at Linn State, and the college has not attributed any accidents to student drug use," the U.S. Court of Appeals for the 8th Circuit notes in its decision upholding a federal judge's injunction against the college's drug testing program. "Linn State had no reason to believe that it had a student drug-use problem greater than any other college's."
But better safe than sorry, right? Although that sort of reasoning seems to prevail more often than not in drug testing cases, the 8th Circuit ruled that a general interest in discouraging drug use does not justify suspicionless urinalysis by government agencies. The majority opinion, written by Roger Wollman and joined by eight other judges, emphasizes that Linn State's drug testing requirement applied to all students, whether or not they were enrolled in "safety-sensitive" programs such as aviation maintenance or industrial electricity. Why should a student learning design drafting have to pass a drug test, Wollman wonders, when "the district court found that, based on Linn State's evidence, the greatest danger the program presented was 'that a student might accidentally trip and fall while navigating uneven ground during a site visit'"?
The 8th Circuit says the lack of category-specific safety concerns distinguishes this case from Supreme Court decisions upholding drug testing of railway workers after accidents and people seeking U.S. Customs positions that involve carrying guns or interdicting drugs. The appeals court adds that adults attending a college with no special history of drug problems are constitutionally distinct from minors attending high schools facing a real or perceived substance abuse "crisis," a context in which the Supreme Court has approved testing of all students participating in sports or other competitive extracurricular programs. "Linn State's drug testing policy was not developed in response to any crisis," the court notes. "Most significantly, Linn State's students are not children committed to the temporary custody of the state."
The two judges who dissented from the decision, by contrast, argue that a drug problem confronting society in general is enough to justify an indiscriminate drug testing program like Linn State's. C. Arlen Beam, joined by James Loken, describes the Supreme Court's rulings in this area as "generally validating the suspicionless drug testing and screening being carried on by America's government, business, service and educational institutions, saying there is no dispute, 'nor can there be doubt, that [illicit] drug abuse is one of the most serious problems confronting our society today.'" Beam cites the recent surgeon general's report on drug addiction, the Comprehensive Addiction and Recovery Act of 2016, and the large share of criminal cases in the 8th Circuit that involve drug offenses (34 percent) as evidence that Linn State faces "substantial health, safety and security problems, all of which are specifically ameliorated by the College's well-conceived drug-testing and screening program."
Beam seems almost outraged by the American Civil Liberties Union's involvement in challenging Linn State's policy. He complains that "the organization, with regularity, aligns itself in opposition to drug testing and screening in most, if not every, conceivable situation that arises, especially when educational endeavors are at stake, such as at Linn State." He adds that "my search of its public emanations fails to identify even one piece of ACLU-sponsored litigation that supports drug testing and screening."
Maybe that's because the ACLU sees its mission as protecting constitutional rights rather than facilitating their violation. "We shouldn't treat students seeking to better their lives through education with immediate suspicion," says ACLU of Missouri Legal Director Tony Rothert. "Under the Fourth Amendment, every person has the right to be free from an unreasonable search and seizure—including college students."