Patchogue-Medford Congress of Teachers v. Board of Educ. of Patchogue-Medford Union Free School Dist.

• Decision Date: 09 June 1987
• Docket Number: PATCHOGUE-MEDFORD
• Citation: 70 N.Y.2d 57,510 N.E.2d 325,517 N.Y.S.2d 456
• Parties: , 510 N.E.2d 325, 44 Empl. Prac. Dec. P 37,373, 55 USLW 2688, 40 Ed. Law Rep. 917, 2 IER Cases 198 In the Matter ofCONGRESS OF TEACHERS, Respondent, v. BOARD OF EDUCATION OF theUNION FREE SCHOOL DISTRICT et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 456

517 N.Y.S.2d 456

70 N.Y.2d 57, 510 N.E.2d 325, 44

Empl. Prac. Dec. P 37,373,

55 USLW 2688, 40 Ed. Law Rep. 917, 2

IER Cases 198

In the Matter of PATCHOGUE-MEDFORD CONGRESS OF TEACHERS, Respondent, v. BOARD OF EDUCATION OF the PATCHOGUE-MEDFORD UNION FREE SCHOOL DISTRICT et al., Appellants.

Court of Appeals of New York.

June 9, 1987.

Robert E. Sapir, Hempstead, for appellants

Daniel Galinson, Mineola, for respondent.

Norman H. Gross, Jay Worona and Mara B. Ginsberg, Albany, for the New York State School Boards Ass'n, amicus curiae.

Richard K. Willard, Asst. Atty. Gen. (Leonard Schaitman and Robert V. Zener, Washington, D.C., of counsel), for U.S., amicus curiae.

James R. Sandner, Janis Levart Barquist, John H. Jurgens and Katherine A. Levine, New York City, for New York State United Teachers, amicus curiae.

Minna J. Kotkin, Steven R. Shapiro and Richard Emery, New York City, for New York Civil Liberties Union, amicus curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

On this appeal we are asked to consider the constitutionality of a School District policy requiring all probationary teachers to submit to urinalysis to detect potential drug abuse. The courts below found that the practice constituted an illegal search and seizure in violation of the teachers' constitutional rights. The School District appeals.

In 1982 the Patchogue-Medford School District signed a collective bargaining agreement with the Patchogue-Medford Congress of Teachers, the union representing the teachers. The agreement requires probationary teachers to submit to a full physical examination in their first year of employment and again during the final year of their probationary term when they become eligible for tenure. In 1985 there were approximately 22 teachers completing their probationary terms in the Patchogue-Medford School District. Some time prior to May of 1985 each of these teachers had completed a full physical examination conducted by a physician designated by the School District.

On May 3, 1985 the School District notified all of these probationary teachers by letter that they must submit to an additional urinalysis examination. The letter states that, "the district is requiring a urine sample for all employees eligible for tenure." The sample would be collected by the school nurse and then forwarded to a laboratory for testing. It is conceded that the sole purpose of this examination was to determine whether any of the teachers were using drugs illegally. There was no resolution by the Board of Education requiring these tests and there is no policy statement or directive from either the Board or the Superintendent relating to them. However, the teachers were informed that the Superintendent would not recommend for tenure any teacher who refused to provide the urine sample.

Prior to the date for the scheduled examination, the teachers' union commenced this proceeding to prohibit the examination claiming that it was unauthorized and constituted an unreasonable search and seizure in violation of the teachers' constitutional rights. The union sought declaratory and injunctive relief and obtained an interim stay. The School District raised several procedural objections and, on the merits, contended that the examination was authorized by the collective bargaining agreement, did not constitute a search or seizure and, in any event, was a reasonable requirement to impose on a tenure candidate.

The trial court granted the petition. The court found that the urine test was not part of the medical examination authorized by statute (Education Law § 913) and the collective bargaining agreement signed by the teachers' representative. The court further held that it constituted a search and seizure and could not constitutionally be made in the absence of reasonable suspicion. The court noted that the "District makes no attempt to justify the demand for a sample upon any ground supporting the need for such testing either as to the prospective tenured teachers as a class or to any of them individually."

The Appellate Division affirmed. The court agreed that the scheduled test was not part of the required and completed medical examination and constituted a purely investigatory search and seizure seeking evidence of illegal drug use. The court also held that probable cause was not required but that the test could not be ordered without reasonable suspicion. The court stated: "Balancing a Board of Education's interest in ensuring that its employees are fit to perform their jobs against the teachers' reasonable expectation of privacy, we hold that the reasonable suspicion standard is the appropriate basis for constitutionally compelling a public school teacher to submit to a urine test for the purposes of detecting the use of controlled substances" (119 A.D.2d 35, 40, 505 N.Y.S.2d 888).

The School District, joined by the United States Attorney General as amicus curiae, urges on a number of grounds that the compulsory urine test does not violate the teachers' constitutional rights. First, it is urged that compulsory urine testing does not involve a search and seizure because it may be accomplished without invading the individual's body and all that is seized is a waste product in which the individual can have no reasonable expectation of privacy. Second, it is argued that if a search and seizure is involved, it is nevertheless reasonable to require teachers to submit to compulsory urine testing at the will of the employer because public school teachers have a diminished expectation of privacy with respect to their fitness and the State has an overriding interest in providing a drug free environment in the public schools. Finally, the School District contends that, in any event, the collective bargaining agreement signed by the teachers' representative constitutes consent or waiver of the teachers' rights with respect to a compulsory urine test.

It is not clear whether the urine test compelled here would satisfy Federal constitutional requirements. The Supreme Court has not yet decided a case involving compulsory drug testing of government employees, and the courts which have considered application of the Fourth Amendment have reached diverse conclusions. All appear to have held that such testing involves a search and seizure, but differ as to whether it is reasonable for the government to act only on reasonable suspicion with respect to a particular employee (see, e.g., Division 241 Amalgamated Tr. Union v. Suscy, 538 F.2d 1264 (7th Cir.); Jones v. McKenzie, 628 F.Supp. 1500; Capua v. City of Plainfield, 643 F.Supp. 1507; Security & Law Enforcement Employees v. Carey, 737 F.2d 187, 205 (2nd Cir.); Turner v. Fraternal Order of Police, 500 A.2d 1005 cf., Allen v. City of Marietta, 601 F.Supp. 482 ) or whether some form of random testing of all employees in certain categories is permissible (see, e.g., McDonnell v. Hunter, 809 F.2d 1302 (8th Cir.); Shoemaker v. Handel, 795 F.2d 1136 (3rd Cir.); Rushton v. Nebraska Public Power Dist., 653 F.Supp. 1510; National Treasury Employees Union v. Von Raab, 816 F.2d 170 ). A majority of courts appear to support the conclusions reached by the courts below in the case now before us, that urine testing compelled by the government does involve a search and seizure, and that reasonable suspicion is required (see, Miller, Mandatory Urinalysis Testing and the Privacy Rights of Subject Employees: Toward a General Rule of Legality Under the Fourth Amendment, 48 U.Pitt.L.Rev. 201 see also, Fraternal Order of Police v. City of Newark, 216 N.J.Super. 461, 524 A.2d 430; City of Palm Bay v. Bauman, 475 So.2d 1322 reaching a similar conclusion under State Constitutions).

As noted, the School District disputes both of those conclusions and contends that it has a right to conduct such tests at will. The question is an important one which should be settled throughout the State and one on which resort to the Federal Constitution would not be dispositive since the practice, even if permitted by the Fourth Amendment, may not satisfy the requirements of the comparable provision of the State Constitution (N.Y. Const., art. I, § 12). The heart of the controversy under both Constitutions is whether the particular test infringes on an expectation of privacy which society considers reasonable. To the extent that this case deals with the expectation of privacy of public employees in this State, it presents a type of inquiry appropriate for resolution under the State Constitution. We therefore consider it necessary and appropriate to decide this case under both the State and Federal Constitutions.

In response to the concurring opinion it should be noted that the petition in this case refers generally to the teachers' constitutional rights without specifically relying on either the Federal or State Constitutions. If this is sufficient in the context of this case to raise the Fourth Amendment, as we all agree it is, it should serve to present State constitutional questions as well. In search and seizure cases especially, this court has traditionally rested its decisions on both State and Federal grounds when it appears that they both support the result reached (see, e.g., People v. Perel, 34 N.Y.2d 462, 358 N.Y.S.2d 383, 315 N.E.2d 452; People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872; People v. Nieves, 36 N.Y.2d 396, 369 N.Y.S.2d 50, 330 N.E.2d 26; People v. Gonzalez, 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575; People v. Allende, 39 N.Y.2d 474, 384 N.Y.S.2d 416, 348 N.E.2d 891; People v. Farenga, 42 N.Y.2d 1092, 369 N.Y.S.2d 651, 369 N.E.2d 1184; Hynes v. Moskowitz, 44 N.Y.2d 383, 406 N.Y.S.2d 1, 377 N.E.2d 446; People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d 1329; People ex rel. Piccarillo v. State Bd. of Parole, 48 N.Y.2d 76, 421 N.Y.S.2d 842, 397 N.E.2d 354; People v. Calhoun, 49 N.Y.2d 398, 426 N.Y.S.2d 243, 402 N.E.2d 1145; Matter of Abe A., 56 N.Y.2d 288, 452...