American Fed. of Teachers v. Kanawha Bd. of Educ.

• Decision Date: 08 January 2009
• Docket Number: No. 2:08-cv-01406.,2:08-cv-01406.
• Citation: 592 F.Supp.2d 883
• Court: U.S. District Court — Southern District of West Virginia
• Parties: AMERICAN FEDERATION OF TEACHERS-WEST VIRGINIA, AFL-CIO, et al., Petitioners, v. KANAWHA COUNTY BOARD OF EDUCATION, et al., Respondents.

592 F.Supp.2d 883

AMERICAN FEDERATION OF TEACHERS-WEST VIRGINIA, AFL-CIO, et al., Petitioners, v. KANAWHA COUNTY BOARD OF EDUCATION, et al., Respondents.

Civil Action No. 2:08-cv-01406.

United States District Court, S.D. West Virginia, Charleston Division.

January 8, 2009.

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Adam B. Wolf (argued), Robert M. Bastress (argued), American Civil Liberties Union, Morgantown, WV, Jeffrey G. Blaydes, Terri S. Baur, Mark W. Carbone, American Civil Liberties Union of West Virginia, Carbone & Blaydes, James M. Haviland, West Virginia Education Association, Andrew J. Katz, The Katz Working Families Law Firm, Charleston, WV, for Petitioners.

Carolyn A. Wade, Jan L. Fox (argued), Steptoe & Johnson, Clarksburg, WV, for Respondents.

MEMORANDUM OPINION

JOSEPH R. GOODWIN, Chief Judge.

The Kanawha County School Board adopted a revised drug testing policy mandating the random testing of teachers and other categories of public school employees. The teachers' unions have joined forces in this lawsuit seeking to enjoin the implementation of that policy on constitutional and privacy grounds. The questions before the court are whether the random drug testing policy adopted by the Board as a state actor violates the Fourth Amendment to the United States Constitution, Article III, § 6 of the West Virginia Constitution, and the right to privacy as it is recognized in this state. The evidence does not demonstrate either that these employees have a reduced expectation of privacy by virtue of their employment in a public school or that there is a special governmental need to guard against a concrete risk of great harm. I therefore find that because the safety justification offered by the Board does not outweigh the privacy interests of the school employees, the Board may not abandon the Fourth Amendment's protection against suspicionless searches. Consequently, the plaintiffs are likely to succeed on the merits of their claims and I preliminarily enjoin the enforcement of the random drug testing policy.

I. Factual Background and Procedural History

The Kanawha County Board of Education has attempted to deal with the problem of drug abuse in the workplace by fashioning an Employee Drug Use Prevention Policy. (Hr'g 12/29/08, Pet'rs' Ex. 1 [Docket 24].) The Policy originally enacted on December 13, 2007, provides for drug testing of Kanawha County Schools employees in the following six situations: pre-employment (§ 81.09); for cause or reasonable suspicion (§ 81.11); missing substances (§ 81.12); fitness for duty (§ 81.13); promotion and transfer (§ 81.14); and return to duty (§ 81.15).

The Board revised the Employee Drug Use Prevention Policy on October 15, 2008 ("Revised Policy"), and scheduled that Revised Policy to go into effect on January 1, 2009. (Id., Pet'rs' Ex. 2.) The portions of the Revised Policy challenged by the petitioners involve the implementation of a new random drug testing scheme.¹ Section 81.15 of the Revised Policy institutes suspicionless random drug testing for all "safety sensitive positions" as defined by § 81.05.6.² Section 81.05.6 states that "safety sensitive positions" are those which "involve the care and supervision of students or where a single mistake by such employee can create an immediate threat of serious harm to students, to him or herself or to fellow employees." That section contains a non-exhaustive list of forty-seven "safety sensitive positions" ranging from administrative assistant to cabinetmaker to coach to handyman to plumber to teacher to the superintendent.³ Kanawha County Schools issued a Policy Statement regarding the suspicionless random drug testing program, explaining that "[t]he job functions associated with these [safety sensitive] positions directly and immediately relate to public health and safety, the protection of life and property security. These positions are identified for random testing because they require the highest degree of trust and confidence." (Id., Pet'rs' Ex. 3.)

Petitioners American Federation of Teachers-West Virginia, AFL-CIO ("AFT"), Judy Hale, president of AFT, and Frederick Albert, Cynthia Phillips and Gregory Dodd, who are all teachers in Kanawha County Schools and members of AFT, filed a Verified Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief in the Circuit Court of Kanawha County, West Virginia on November 26, 2008. They claim that the Revised Policy's random drug testing provisions violate the Fourth Amendment, Article III, § 6 of the West Virginia Constitution, and the right to privacy as it is recognized in West Virginia [Docket 1, Ex. 1]. They also filed a Motion for a Preliminary Injunction in Circuit Court, and a hearing on that motion was scheduled. (Id.) Before the state court hearing could take place, however, the case was removed to this court by the Respondents, Kanawha County Board of Education, Kanawha County Schools and Superintendent Ronald Duerring, on the grounds that this court possessed federal question jurisdiction over the case [Docket 1]. The petitioners then filed a Motion for Preliminary Injunction [Docket 3, 8] and a Motion for Waiver of Injunction Bond or for setting Bond at Nominal Amount [Docket 5] with this court. I scheduled a motions hearing for December 29, 2008 [Docket 9].

On December 17, 2008, the West Virginia Education Association and Dale Lee, its President (collectively "WVEA"), moved to intervene as petitioners pursuant to Federal Rule of Civil Procedure 24(b)(1)(B), a motion that it also had filed in state court prior to the case's removal [Docket 10]. WVEA additionally filed its own Motion for Preliminary Injunction [Docket 12] and moved to join in the Motion for Waiver of Injunction Bond or for setting Bond at Nominal Amount [Docket 16]. I granted WVEA's Motion to Intervene on December 19, 2008, and held its other motions in abeyance to be addressed at the December 29 motions hearing [Docket 17].⁴

The respondents filed their responses to the pending motions on December 22, 2008. They opposed the Motion for Preliminary Injunction [Docket 18], but did not object to my setting a nominal bond amount should such an injunction issue [Docket 19]. The respondents also filed their Answer to the Verified Petition on December 24, 2008 [Docket 20].

I held the motions hearing on December 29, 2008.⁵ I heard evidence and argument from both parties, including testimony from Petitioner Frederick Albert, a middle school teacher and the local president of AFT, and Respondent Dr. Ronald Duerring, Superintendent of Kanawha County Schools. Mr. Albert is a sixth grade math teacher and nineteen-year veteran teacher in Kanawha County who has taught in seven schools and visited approximately half of the schools in the district as part of his work for AFT. He testified that he has never witnessed a school employee come to school while impaired by drugs or alcohol. (Hr'g Tr. 12/29/08 at 17.) Mr. Albert further testified that, if he were to observe a teacher who seemed to be impaired, he would report it to the administration and that such reporting also was the policy of AFT. (Id. at 17-18.)

Mr. Albert described his interaction with others on an ordinary work day, which begins with his administrator greeting staff and students on the sidewalk as they enter the school building. (Id. at 18.) Mr Albert then greets other employees in the lobby of the school and reports to the assistant principal's office where teachers are required to sign in each morning. (Id.) Although he may spend, in the aggregate, up to five or six hours alone with students in a classroom throughout the day, Mr. Albert interacts with staff and other teachers in the teachers' lounge, the hallways where teachers are hall monitors, and in team teacher meetings. (Id. at 18-19, 23.) His administrator also visits his classroom on a daily basis. (Id. at 24.) Further, he stated, his school has cameras in the hallways, and policemen who are regularly in the building, sometimes accompanied by drug dogs. (Id. at 19-20.) There also is a keyless entry ID system that will soon be in place at the school and will track the comings and goings of teachers. (Id. at 20, 26-27.) Mr. Albert opined that it would be very unlikely that a teacher's impairment due to drugs would go unnoticed. (Id. at 19.)

In response to cross-examination, Mr. Albert stated that he had broken up a fight between elementary school students, helped students leave the school for a fire drill, and that the safety of students and his co-workers was one of his primary responsibilities. (Id. at 18, 25, 27-29.) His school conducts fire drills and shelter in place drills, where he, as well as the entire staff, is responsible for student compliance with the drills. (Id. at 24-25.) He is aware of the school district policies on teacher duties and that teachers in West Virginia act in loco parentis to the students. (Id. at 25-26.) Mr. Albert stated that "we want all students to be learning in a safe environment.... We want our teachers to be teaching in safe buildings." (Id. at 27.) He stated that he is proud of his union's efforts to provide a safe learning environment for students and employees. (Id.)

Finally, Mr. Albert opined that the new random drug testing policy "is very unnecessary. It's intrusive. It is an affront to our profession. It's demeaning. It's demoralizing. It's an unnecessary expense. We need those resources in the classroom." (Id. at 17.)

Superintendent Dr. Duerring, who has been an employee of Kanawha County Schools for thirty-four years as a teacher, principal, assistant superintendent and superintendent, testified for the respondents as to his role in formulating the Revised Policy, which he stated the Board considered for approximately two years and made available for public comment before its passage. (Id. at 30-31.) He testified that drug testing has been in place in the Kanawha County school system since 1...