Kittle-Aikeley v. Claycomb, s. 13–3264

• Decision Date: 07 December 2015
• Docket Number: 14–1145.,Nos. 13–3264,s. 13–3264
• Citation: 807 F.3d 913
• Parties: Brandon KITTLE–AIKELEY; Michael Barrett, IV; Jacob Curliss; John Doe, Plaintiffs–Appellees v. Donald M. CLAYCOMB, in his official capacity as President of Linn State Technical College; Toni R. Schwartz, in her official capacity as member of the Linn State Technical College Board of Regents; John Klebba, in his official capacity as member of the Linn State Technical College Board of Regents, Defendants–Appellants Christopher T. Davidson, Defendant Diane Benetz, in her official capacity as member of the Linn State Technical College Board of Regents; Mark J. Collom, in his official capacity as member of the Linn State Technical College Board of Regents; Erick V. Kern, in his official capacity as member of the Linn State Technical College Board of Regents; J. Scott Christianson, in his official capacity as member of the Linn State Technical College Board of Regents, Defendants–Appellants Member, in his/her official capacity as member of the Linn State Technical College Board of Regents, Defendant Brandon Kittle–Aikeley; Michael Barrett, IV; Jacob Curliss; John Doe, Plaintiffs–Appellees v. Donald M. Claycomb, in his official capacity as President of Linn State Technical College; Toni R. Schwartz, in her official capacity as member of the Linn State Technical College Board of Regents; John Klebba, in his official capacity as member of the Linn State Technical College Board of Regents, Defendants–Appellants Christopher T. Davidson, Defendant Diane Benetz, in her official capacity as member of the Linn State Technical College Board of Regents; Mark J. Collom, in his official capacity as member of the Linn State Technical College Board of Regents; Erick V. Kern, in his official capacity as member of the Linn State Technical College Board of Regents; J. Scott Christianson, in his official capacity as member of the Linn State Technical College Board of Regents, Defendants–Appellants Member, in his/her official capacity as member of the Linn State Technical College Board of Regents, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

807 F.3d 913

Brandon KITTLE–AIKELEY; Michael Barrett, IV; Jacob Curliss; John Doe, Plaintiffs–Appellees

v.Donald M. CLAYCOMB, in his official capacity as President of Linn State Technical College; Toni R. Schwartz, in her official capacity as member of the Linn State Technical College Board of Regents; John Klebba, in his official capacity as member of the Linn State Technical College Board of Regents, Defendants–Appellants

Christopher T. Davidson, Defendant

Diane Benetz, in her official capacity as member of the Linn State Technical College Board of Regents; Mark J. Collom, in his official capacity as member of the Linn State Technical College Board of Regents; Erick V. Kern, in his official capacity as member of the Linn State Technical College Board of Regents; J. Scott Christianson, in his official capacity as member of the Linn State Technical College Board of Regents, Defendants–Appellants

Member, in his/her official capacity as member of the Linn State Technical College Board of Regents, Defendant

Brandon Kittle–Aikeley; Michael Barrett, IV; Jacob Curliss; John Doe, Plaintiffs–Appellees

v.Donald M. Claycomb, in his official capacity as President of Linn State Technical College; Toni R. Schwartz, in her official capacity as member of the Linn State Technical College Board of Regents; John Klebba, in his official capacity as member of the Linn State Technical College Board of Regents, Defendants–Appellants

Christopher T. Davidson, Defendant

Diane Benetz, in her official capacity as member of the Linn State Technical College Board of Regents; Mark J. Collom, in his official capacity as member of the Linn State Technical College Board of Regents; Erick V. Kern, in his official capacity as member of the Linn State Technical College Board of Regents; J. Scott Christianson, in his official capacity as member of the Linn State Technical College Board of Regents, Defendants–Appellants

Member, in his/her official capacity as member of the Linn State Technical College Board of Regents, Defendant.

Nos. 13–3264

14–1145.

United States Court of Appeals, Eighth Circuit.

Submitted: April 13, 2015.

Filed: Dec. 7, 2015.

Corrected: Dec. 9, 2015.

Rehearing En Banc Granted, Opinion Vacated Feb. 18, 2016.

Kent L. Brown, Jefferson City, MO, argued (Judith Anne Willis, on the brief), for appellants.

Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation, St. Louis, MO, argued (Grant R. Doty, American Civil Liberties Union of Missouri Foundation, St. Louis, MO, Jason D. Williamson, American Civil Liberties Union, New York, N.Y., Gillian R. Wilcox, American Civil Liberties Union of Missouri Foundation, Kansas City, MO, on the brief), for appellees.

Before BYE, BEAM, and SMITH, Circuit Judges.

BEAM, Circuit Judge.

Appellants, members of the Linn State Technical College¹ Board of Regents acting in their official capacities, and Donald M. Claycomb, President of Linn State Technical College ("Linn State" or "the College"), appeal the district court's grant of a permanent injunction and subsequent grant of attorneys' fees in favor of Appellees. We reverse.

I. BACKGROUND

This matter is before us a second time. In Barrett v. Claycomb, 705 F.3d 315 (8th Cir.2013) ("Barrett ") a panel of this court reviewed an interlocutory appeal, discussing, and ultimately reversing, the grant of a preliminary injunction in favor of Michael Barrett, IV, and other named individuals (collectively, Appellees) on their facial challenge to the drug-testing policy at issue. Id. at 325. Upon remand, Appellees clarified their claims to assert an "as-applied" challenge to the very same policy. Reviewing the as-applied challenge, the district court, in part, permanently enjoined Appellants from conducting any further collection, testing, or reporting the results of any testing of urine specimens from any plaintiffs who were not, are not, or will not be enrolled in five enumerated programs at Linn State, discussed in more detail herein. This resolution of the as-applied challenge is now at issue. Because the factual recitation from Barrett is brief, and because its reiteration is necessary to lay out the background and especially the drug-testing policy at issue once again, we liberally adopt the facts of this case as previously explicated. Id. at 318–20.

Linn State is a two-year, technical college located in Linn, Missouri. Linn State offers approximately thirty programs for a relatively small student body comprised of roughly 1150 to 1200 students. On average, 500 new students begin programs at Linn State each year seeking certificates, diplomas, and applied science associate degrees, or a combination thereof. Mo. Ann. Stat. § 178.636(2). Linn State does not offer associate of arts or baccalaureate or higher degrees. Id. Established by statute, Linn State is unique in that its purpose is to "make available to students from all areas of the state exceptional educational opportunities through highly specialized and advanced technical education and training at the certificate and associate degree level in both emerging and traditional technologies with particular emphasis on technical and vocational programs not commonly offered by community colleges or area vocational technical schools." Id. at § 178.636(1).

The programs Linn State offers can be divided into four primary categories: mechanical, electrical, civil, and computer. Each of these primary categories has further specialty areas. Most programs offered at Linn State involve manual exercises. The goal of the institution as stated in its admissions materials is to provide 75% of the class work in the field chosen by the student. For example, students in the Aviation Maintenance program spend roughly 62% of their time doing hands-on training, where students work in close proximity to active propeller blades. These students are also required to taxi airplanes. Students seeking accreditation in the Heavy Equipment Operations program spend between 51% and 72% of their time engaged in hands-on training, involving operation of Caterpillar D6R bulldozers and other heavy equipment weighing up to twenty-five tons. Students in the Industrial Electricity program spend about half their time engaged in hands-on functions, receiving training with live electricity and, at times, performing electrical services for members of the community.

On June 17, 2011, Linn State's Board of Regents adopted a mandatory drug-screening policy. The policy states:

Linn State Technical College will begin a drug screening program in the fall semester of 2011 for students who are newly classified as degree or certificate seeking and degree or certificate seeking students returning after one or more semesters of non-enrollment at the Linn State Technical College campus or any Linn State Technical College location.

The testing policy indicates that "[t]he purpose of the program is to provide a safe, healthy and productive environment for everyone who learns and works at Linn State Technical College by detecting, preventing and deterring drug use and abuse among students." The testing procedures provide that the test results do not serve law enforcement purposes and will not be revealed to law enforcement personnel.

As a condition of admission to Linn State in the fall 2011 semester, students were required to sign a form acknowledging the new drug-testing policy and also acknowledging that refusing to screen would result in administrative or student-initiated withdrawal. The condition of admission also explained to students that if a test returned positive, the student would have 45 days "to rescreen and test negative to remain enrolled." Approximately 550 students paid a $50 fee for the drug test that fall and were tested.

In conjunction with the new policy, on September 6, 2011, Linn State issued a series of procedures by which it would conduct the drug screening. The written procedures provided that students could "petition the Office of the President for a waiver of the general requirement to participate in the Drug Screening Program." According to the procedures, "[t]he student may advance any justification for the request." If a student filed a petition, President Claycomb testified that he would consider the student's reason and consult other personnel at the College, and possibly legal counsel, before he rendered a decision. There was also a full appeal and hearing process available for students wishing to challenge the initial determination. On September 7, 2011, Linn State began drug testing students.

On September 14, after providing urine samples in accordance with the drug-testing policy, Appellees commenced action on behalf of an enumerated class² against members of the Board of Regents and President Claycomb. The complaint alleged that Linn State's drug-testing policy constituted a search that violated the Fourth Amendment.³ Appellees sought a declaration that the drug-testing policy was facially unconstitutional and further sought injunctive relief. The district court issued a preliminary injunction and we reversed, because we were unable to hold that the drug-testing policy is unconstitutional on its face in every conceivable circumstance. Barrett, 705 F.3d at 320–21, 321 n. 4, and 324–25 (reiterating that in order to receive injunctive relief, no matter whether the court applied a "likelihood of success on the merits" or a "fair chance of prevailing" standard, the appellees could not satisfy their ultimate burden in mounting a facial challenge under the Fourth Amendment that no set of circumstances existed under which the policy would be valid.).

Upon remand, Appellees clarified that they sought as-applied relief and the district court analyzed that claim. When analyzing Appellees' as-applied challenge, the district court conducted a program-by-program analysis to "ensure that the category of students subject to the drug-testing policy has not been defined more broadly than necessary to meet the policy's purposes." In doing so, the...