148 F.3d 559 (5th Cir. 1998), 97-30593, Aubrey v. School Bd. of Lafayette Parish

Docket Nº:97-30593.
Citation:148 F.3d 559
Party Name:Larry AUBREY, Plaintiff-Appellant, v. SCHOOL BOARD OF LAFAYETTE PARISH, et al., Defendants, School Board of Lafayette Parish, Defendant-Appellee.
Case Date:August 10, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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148 F.3d 559 (5th Cir. 1998)

Larry AUBREY, Plaintiff-Appellant,



School Board of Lafayette Parish, Defendant-Appellee.

No. 97-30593.

United States Court of Appeals, Fifth Circuit

August 10, 1998

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Randall Scott Iles, Lee Ann Iles, Law Office of R. Scott Iles, Lafayette, LA, for Plaintiff-Appellant.

Kay A. Theunissen, L. Lane Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendant-Appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before POLITZ, Chief Judge, and REYNALDO G. GARZA and DENNIS, Circuit Judges.

POLITZ, Chief Judge:

Larry Aubrey, a custodian employed by the Lafayette Parish School Board in an

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elementary school, seeks injunctive relief and damages because he was subjected to a urinalysis which he contends violated his fourth amendment rights 1 and provisions of the Louisiana Drug Testing Act. 2 He appeals an adverse summary judgment. For the reasons assigned, we affirm.


As a custodian at the Prairie Elementary School, Aubrey's duties included cleaning the fourth and fifth grade bathrooms each day, using various chemicals. 3 He mowed the grounds immediately adjacent to the building and was responsible for securing the premises at the end of the day, making minor repairs to buildings, furniture and equipment, lighting pilot lights, maintaining HVAC equipment, cleaning and replacing light fixtures, and trimming trees. He constantly was in the presence of the young students.

In December 1992, the Board adopted an Employee Drug Testing Policy. 4 In August 1993, Aubrey attended an in-service training for the custodial staff in which the drug testing policy was distributed and reviewed.

Each year the Board submitted a list of "safety sensitive" employees to Security Concepts International, Inc. for random selection and drug testing. On September 28, 1994, the Board requested that Aubrey and fourteen other employees submit to a urinalysis screening. Aubrey's test indicated the presence of tetrahydrocannabinol, the active chemical in marihuana. As an alternative to termination, the Board required that Aubrey attend a substance abuse program at the Freedom Recovery Center, Inc. Denying that he had used marihuana, Aubrey sought an injunction barring the Board from firing him, or requiring that he continue to attend the substance abuse program. The district court granted the injunction to the extent that Aubrey was permitted to submit to periodic drug testing and individual as opposed to group therapy treatment.

Thereafter, the district court granted the Board's motion for summary judgment, dismissing the action in its entirety. Aubrey appealed and we reversed and remanded, concluding that the record did not contain sufficient summary judgment evidence upon which to balance the government's need to protect children against the intrusion of Aubrey's fourth amendment rights. 5 We noted a need for additional evidence, including how particular positions were selected and designated as "safety sensitive," the notice given to employees in such positions, and whether the plaintiff's own position fell within the safety sensitive category. 6

The Board resubmitted its motion for summary judgment and filed additional evidence addressing our concerns. The district court once again granted the defendant's motion for summary judgment. Aubrey timely appealed.


We review a grant of summary judgment de novo, applying the same standard

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used by the district court and, in reviewing the facts, we draw all inferences in favor of the nonmoving party. 7 We do not weigh the evidence, assess its probative value, or resolve any factual disputes; rather, we search the record for resolution-determinative facts. 8 Summary judgment is only appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. 9

The fourth amendment guarantees the privacy, dignity and security of persons against certain arbitrary and invasive acts by officers of the government or those acting at their direction. 10 By virtue of the fourteenth amendment, the fourth amendment governs searches by state as well as federal government officials. 11 Further, the fourth amendment is not limited to searches conducted for law enforcement purposes but extends to all government searches, including those conducted by the government while acting as an employer. 12 This restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion. Searches conducted without grounds for suspicion of particular individuals have been upheld, however, in certain limited circumstances. 13

A program which compels government employees to submit to urinalysis is a search within the meaning of the fourth amendment because such tests invade reasonable expectations of privacy. 14 Such a drug test therefore must meet the reasonableness requirement. The amendment does not proscribe all searches and seizures, but reasonableness depends on the nature of the search and seizure. 15 In a situation in which the fourth amendment intrusion serves a special government need beyond that of law enforcement, a balancing test is required. 16 The interest of the government must be weighed against the privacy interest of the employee. The analysis of the privacy interest should include not only the desire to be free from mandatory testing, but also the intrusiveness of the particular program at issue. 17

The Supreme Court has found that special needs may outweigh the privacy interests of individuals. In Skinner v. Railway Labor Executives' Association, 18 the Court stated:

The Government's interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, "likewise presents 'special needs' beyond normal law enforcement that may justify the departures from the usual warrant and probable-cause requirements." 19

Similarly in National Treasury Employees v. Von Raab, the Court found permissible the

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U.S. Customs Service's drug testing program analyzing urine specimens of employees applying for promotions to positions involving interdiction of illegal drugs and requiring the carrying of firearms. 20

In Vernonia School District 47J v. Acton, 21 a policy adopted by a school district to test student athletes was held non-violative of fourth amendment protections. The Court stated that "[d]eterring drug use by our Nation's schoolchildren is at least as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs, which was the governmental concern in Von Raab or deterring drug use in engineers and trainmen, which was the governmental concern in Skinner." 22

In Chandler v. Miller, 23 the Supreme Court's most recent fourth amendment drug testing case, the Court found violative of the fourth amendment a Georgia statute requiring candidates for state offices to certify that they had tested negative in a drug urinalysis. Georgia failed to show a special need substantial enough to override the candidates' privacy interests.

Skinner, Von Raab, Acton and Chandler provide guidance with respect to whether a particular search meets the reasonableness standard, to be determined by balancing the testing program's intrusion on the individual's fourth amendment protections against its promotion of legitimate governmental interests. 24

We first turn to the interests articulated by the Board. The Board contends that the urinalysis was obtained to maintain the safe and efficient operation of its schools, ensure the physical safety of the children of Lafayette Parish, and decrease the potential spread of drug use among its students. In pursuit of its objectives, the Board created a list of employees who were considered safety sensitive, including custodial employees such as Aubrey. Aubrey's duties, outlined above, obviously are important to the efficient operation of the school. The tasks assigned to him are important. Despite Aubrey's efforts to minimize the importance of his duties, we are persuaded that the failure of the Board to use significant caution in the selection and supervision of personnel performing such duties in a school that serves nearly 900 students, ranging in age from three to eleven, could place the children at significant risk.

The Board also asserts that it "has a compelling interest and commitment to eliminate illegal and unauthorized drug use (including the unauthorized use of alcohol), drug users, drug activities, and drug effects from all of its workplaces." The Board has not produced any summary judgment evidence to demonstrate a problem of drug abuse or use in its schools, and although such a showing would be of persuasive value, it is not mandatory 25 and such a requirement would present "an unduly narrow view of the context in which the [Board's] testing program was implemented." 26 As in Von Raab, "[p]etitioners do not dispute, nor can there be doubt, that drug abuse is one of the most serious problems confronting our society today." 27 Unfortunately, neither our workplaces nor our elementary schools are immune from the drug scourge causing such problems in our land. The Board's program is designed to prevent drug users from obtaining a safety

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sensitive position and to aid in detecting those employees in such positions who use drugs so that they may undergo treatment as a prerequisite to keeping their jobs. We find the Board's interests to be substantial indeed.

The Board's valid and compelling public interests...

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