Andrew Mckinley, Testing Our Teachers

• Publication year: 2012

TESTING OUR TEACHERS

ABSTRACT

In recent years, a number of school districts have begun drug testing their teachers, only to find that the Supreme Court’s special needs exception is failing. As it has in other corners of its Fourth Amendment jurisprudence, the Court has erected an exception predicated on a vague “reasonableness” standard, the application of which often varies with the ad hoc interpretations of individual courts. Courts assessing the applicability of the special needs exception to the drug testing of public school teachers have, in the absence of clear analytical guideposts, found a patchwork of inconsistent judicial opinions. As a result, school boards wishing to implement drug testing policies find themselves in a difficult situation, uncertain where their obligation to protect their students must give way to their teachers’ reasonable expectations of privacy. The example of teacher drug testing is but one example of where the special needs exception has left government employers uncertain as to their ability to act.

This Comment represents an effort to infuse a degree of certainty into the Court’s drug testing cases specifically and the special needs doctrine generally. In so doing, it identifies two areas in which the Court’s current special needs analysis lacks sufficiently robust standards to provide meaningful guidance to lower courts: the front-end “special need” designation and the evaluation of the particular drug testing policy’s efficacy. Looking to the Court’s drug testing cases, this Comment identifies three analytical standards that must be present for a court to find a special need. Utilizing social-control theory and utilitarian theories of punishment, it then fleshes out the efficacy prong into a comprehensive framework for assessing the particular circumstances in which a particular drug testing policy actually advances the purported need. Finally, the Comment takes these new analytical tools and applies them to the case of teacher drug testing. This discussion illustrates the potential for a principled, consistent framework for protecting individual privacy without unduly limiting the government’s ability to act.

INTRODUCTION 1495

1. FROM GENERAL WARRANTS TO SUSPICIONLESS DRUG TESTS 1500

2. FILLING THE SPECIAL NEEDS GAPS 1509

   1. Identifying a Special Need 1510

   2. Evaluating Efficacy 1514

      1. Deterrence 1515

      2. Incapacitation 1521

      3. Rehabilitation 1523

3. AN APPLICATION: TEACHER DRUG TESTING 1524

   1. Harms Targeted by Teacher Drug Testing 1524

      1. Decreased Awareness and Judgment 1525

      2. Enablement of Student Drug Use 1527

      3. Forming Attitudes Through Role Modeling 1528

   2. The Special Need for Teacher Drug Testing 1530

   3. Efficacy and Teacher Drug Testing 1533

CONCLUSION 1536

INTRODUCTION

Today’s special needs exception, like so many other aspects of the Supreme Court’s Fourth Amendment jurisprudence,1 is a disaster. Evolving from an understanding that the Framers, through the Reasonableness Clause,2 granted the Fourth Amendment the flexibility to adapt to new technologies and contexts,3 this exception allows the government to conduct warrantless searches when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”4 In such cases, a court assesses the reasonableness of a given search by balancing the intrusion on an individual’s privacy interests against the promotion of government interests.5 As the special needs exception has allowed for government searches to spill outside of the traditional law enforcement context, a far greater number of citizens, ranging from potential terrorists6 to high school choir members,7 have found themselves subject to warrantless intrusions on their privacy whenever an individual court is willing to acknowledge a sufficient need.

In attempting to set meaningful limits on the exception, courts have found themselves tasked with parsing a doctrine “with all of the character and

1. See Ronald J. Allen & Ross M. Rosenberg, The Fourth Amendment and the Limits of Theory: Local Versus General Theoretical Knowledge, 72 ST. JOHN’S L. REV. 1149, 1149 (1998) (“The Supreme Court cases construing the Fourth Amendment are a mess that lacks coherence and predictability, and fails to communicate the contours of the field.”); Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 352 (1974) (“Even for a lone theoretician—for a monarchal, everlasting fourth amendment enforcer—the complications would render a coherent construction of the fourth amendment exceedingly difficult.”).

2. See U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and

   effects, against unreasonable searches and seizures, shall not be violated . . . .”).

3. See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 818 (1994) (“‘Reasonableness’ is not some set of specific rules, frozen in 1791 or 1868 amber . . . .”); Amsterdam, supra note 1, at 399 (“What we do know, because the language of the fourth amendment says so, is that the framers were disposed to generalize to some extent beyond the evils of the immediate past.”); Carol S. Steiker,

   Response, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 824 (1994) (“[T]he Fourth Amendment, more than many other parts of the Constitution, appears to require a fairly high level of abstraction of purpose; its use of the term ‘reasonable’ (actually, ‘unreasonable’) positively invites constructions that change with changing circumstances.”).

4. Griffin v. Wisconsin, 483 U.S. 868 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985)

   (Blackmun, J., concurring in the judgment)) (internal quotation marks omitted).

5. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989).

6. See MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006).

7. See Bd. of Educ. v. Earls, 536 U.S. 822 (2002).

   
   

   consistency of a Rorschach blot.”8 For these courts, the confusion is definitional: At what point or in which circumstances does a purported governmental need become “special”? Courts are at least in agreement that a special need exists when public safety is genuinely at issue.9 Whether a court

   finds that safety interests are actually implicated, though, often turns more on judicial policy preferences than on the consistent application of articulable standards to this critical front-end question.10 The result is a patchwork of opinions that often leaves the government uncertain where its ability to act begins and the individual’s reasonable expectation of privacy must give way.

   
   

   Perhaps nowhere is the ambiguity of the special needs exception more apparent than in the context of governmental drug testing. Take, for example, school boards today, which find themselves navigating the narrow strait between Scylla and Charybdis in deciding whether to implement suspicionless drug testing policies for their teachers. Veer too close to the rocks by implementing a drug testing policy, and risk the possibility of costly litigation for infringing on the reasonable privacy expectations of those teachers. But run up against the whirlpool, and risk that the whole ship might be lost—that the failure to exercise all available means of protecting students from the dangers inherent in the school setting might jeopardize the ability of each school to operate effectively.

   
   

   Teachers’ unions claim that the implementation of these suspicionless drug testing policies amounts to little more than a quixotic endeavor—teacher drug use, they assert, is simply not a prevalent societal problem.11 And indeed, a

   
   

8. Amsterdam, supra note 1, at 375. Professor Akhil Reed Amar has criticized the arbitrary character that the Supreme Court has given the Fourth Amendment:

   The Fourth Amendment today is an embarrassment. . . . As a matter of text, history, and plain old common sense, the[] three pillars of modern Fourth Amendment case law are hard to support; in fact, today’s Supreme Court does not really support them. Except when it does. Warrants are not required—unless they are. All searches and seizures must be grounded in probable cause—but not on Tuesdays. And unlawfully seized evidence must be excluded whenever five votes say so.

   Amar, supra note 3, at 757–58 (footnote omitted).

9. See 5 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 10.2(g),

   at 85 (4th ed. 2004).

10. See THOMAS K. CLANCY, THE FOURTH AMENDMENT: ITS HISTORY AND INTERPRETATION

    § 11.3.4.4.2.2, at 501 (2008) (“[T]he conclusion that a special need is present appears to be little more than a facade for policy results . . . .”).

11. See Vaishali Honawar, Random Drug Tests Test Teacher Privacy Rights, WASH. TIMES, Mar. 12,

    2009, at A1 (“Folks who go into teaching are not the kind who use drugs . . . .” (quoting Michael Simpson, assistant general counsel for the National Education Association) (internal quotation marks omitted)).

    2007 study found, when asking teachers whether they had used illicit drugs in the prior month, that only 4.1% reported drug use—one of the lowest rates among the occupational categories surveyed.12 But, for school districts, this study reveals a more significant truth: while drug use among teachers may not be pervasive, it does occur.13 Were this statistic to bear out in equal measure across all school districts, one would expect the average public school student to have two or three teachers over the course of her primary education who are admitted drug users.14 To many school districts, the relevant consideration is not the proportion of teachers using drugs but the belief that a given district cannot accept the risk of one rotten apple spoiling the bushel.15 As a result, school boards and legislatures in a number of states—including Hawaii,16 Illinois,17 Kentucky,18 Louisiana,19 North Carolina,20 Tennessee,21 and West Virginia22—have enacted or attempted to enact suspicionless urinalysis testing schemes for their teachers and other personnel who interact daily with students. When these policies have faced Fourth Amendment challenges, courts have...