Knox County: Evaluating the Constitutionality of Suspicionless and Reasonable Suspicion Testing Programs

Is testing an employee under reasonable suspicion training  a violation of his or her 4^th amendment right to privacy? What are some examples or reasonable suspicion factors courts have considered constitutional? The United States Court of Appeals in the Sixth Circuit answered these employment concerns in Knox County Education Association v. Knox County Board of Education. In that case, the Knox County Education Association (KCEA) raised an action challenging the Knox County Board of Education’s drug and alcohol testing procedures.[1]  KCEA filed for an injunction to remove two forms of testing in Knox County Board of education’s drug and alcohol testing program.[2] The challenged procedures were: “(1) suspicionless drug testing for all individuals who apply for, transfer to, or are promoted to ‘safety sensitive’ positions within the Knox County School system, including teaching positions; and (2) ‘reasonable suspicion’ drug and/or alcohol testing of all school employees. KCEA challenged both testing programs as violative of the Fourth Amendment’s prohibition against unreasonable searches and seizures.”[3]

Knox County Board of Education’s drug and alcohol testing policy was initially challenged in 1991, which led to a revision and subsequent implementation in 1994.[4]  The second challenge was raised in the Eastern District of Tennessee and then appealed to the District Court of Appeals.[5] The District Court of Appeals held that suspicionless testing was unconstitutional because the testing program wasn’t part of a justified remedial measure and because of the minimal risk of harm balanced against the significant privacy interest that would be intruded upon.[6] In coming to its conclusion, the court considered the lack of evidence showing that there was a drug or alcohol problem in the institutions and the de minimis risk of a “disastrous harm” resulting from an impaired teacher in the workplace.[7] Considering the minimal risk weighed against the program’s intrusive nature, the Board’s suspicionless testing program was deemed an unconstitutional violation of the individual’s right to privacy.[8] On the issue of reasonable suspicion testing of employees, the District Court found that the reasonable suspicion testing program was constitutional, but that the existing alcohol testing procedure was flawed.[9]

Both parties appealed the District Court’s decision; the main issue on appeal was whether the Board’s reasonable suspicion and suspicionless testing programs were constitutional.

The Court of Appeals used a balancing test which weighed the government’s interest against an individual’s privacy rights to determine whether each program constituted a reasonable search under the Fourth Amendment.[10] The Knox County Education Association contended that the drug testing policy was a physical intrusion of privacy; however, the Court of Appeals found the policy held confidential and extensive safeguards that amounted to minimal intrusiveness in the specimen collection procedure.[11] The Knox School Board argued that the school district has a legitimate government interest in safeguarding the health and welfare of its students by ensuring that people in safety-sensitive positions are not under the influence of drugs or alcohol at school.[12] The District Court of Appeals agreed with this argument and further held that teachers hold a unique position.[13] This unique position entails observing children and learning if they are involved in activities which can lead to harm or injury to themselves or others.[14] On this issue, the Court of Appeals held that “these public interests clearly outweigh the privacy interests of the teacher not to be tested because the drug-testing regime adopted by Knox County is circumscribed, narrowly-tailored, and not overly intrusive, either in its monitoring procedures or in its disclosure requirements.”[15]

The Court of Appeals turned to KCBE’s reasonable suspicion testing policy which allowed testing of an employee if the direct supervisor of personnel “reasonably suspects” that an employee is under the influence.[16] The policy detailed specific observations which may lead to the supervisor to order a reasonable suspicion drug or alcohol test including the observation or use of a controlled substance, apparent impairment of motor functions, marked changes in personal behavior, a work accident or repeated accident, or violation of a criminal drug law.[17] Here, these circumstances sufficiently limited the discretion of the officials administering the rule and, because the testing is based upon individualized suspicion, this portion of the policy comports with the reasonableness requirement of the Fourth Amendment.[18]

However, according to the court, KCBE’s suspicion-based alcohol testing was flawed.[19] The Court reviewed three specific issues with the alcohol testing policy: (1) testing was conducted by the local sheriff’s department, (2) lack of breathalyzer testing safeguards and (3) the limited cut-off level for impairment.[20] The court found that the Board no longer uses the sheriff’s department to perform alcohol testing; however, the court noted without much further elaboration that utilizing the sheriff’s department could have caused an issue with employee privacy.[21] The court also found that, though the policy did not provide all necessary safeguards found in United States Department of Transportation regulations, such shortcomings did not rise to the level of constitutional concerns.[22] Finally, the Court held that a 0.020 BAC cut-off level was so low that it bordered along the possibility of legal, off-duty ingestion of alcohol.[23] The Knox Board of Education did not provide sufficient evidence showing that this cut-off level is sufficiently related to the purpose of testing.[24] The case was reversed and submitted back to the district court to review the reasonableness of the alcohol cut-off level.[25]

This case gives employers a clear example of potential flaws in their drug and alcohol testing programs and examples of constitutionally-permissible reasonable suspicion testing policies. This court’s ruling does not necessarily control in most cases, but it can certainly act as a minor guidepost in understanding potential issues in the operation of a drug-free workplace program which includes suspicionless and reasonable suspicion testing programs. Providing the appropriate training is key to ensure a safe workplace and to ensure that employee’s privacy rights are met.  When implementing a drug-free workplace testing policy, employers must be able to balance business interests with the rights guaranteed by the 4^th Amendment.