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

• Decision Date: 11 August 1986
• Docket Number: PATCHOGUE-MEDFORD
• Citation: 119 A.D.2d 35,505 N.Y.S.2d 888
• Parties: , 55 USLW 2113, 34 Ed. Law Rep. 581, 1 IER Cases 1315 In the Matter ofCONGRESS OF TEACHERS, Respondent, v. BOARD OF EDUCATION OF theUNION FREE SCHOOL DISTRICT, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 888

505 N.Y.S.2d 888

119 A.D.2d 35, 55 USLW 2113, 34 Ed.

Law Rep. 581,

1 IER Cases 1315

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.

Supreme Court, Appellate Division Second Department.

Aug. 11, 1986.

Cooper, Englander & Sapir, P.C., Mineola (Robert E. Sapir and David M. Cohen, of counsel), for appellants.

Kaplowitz, Galinson & Johnson, Mineola (Daniel Galinson, of counsel), for respondent.

Richard Emery, New York City, for The New York Civil Liberties Union, amicus curiae.

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

Before MOLLEN, P.J., and WEINSTEIN, RUBIN and SPATT, JJ.

RUBIN, Justice.

The question presented is whether, absent a contract requirement, certain probationary teachers represented by the petitioner may be compelled, as a condition of receiving tenure, to submit themselves to investigatory urine tests to detect the use of controlled substances, even though there is no indication that any one of such teachers uses, or ever has used, illegal drugs. We conclude that such compulsory testing constitutes a search within the meaning of the Fourth Amendment to the Constitution of the United States, and that to compel a probationary teacher to undergo such a search without reasonable suspicion that such teacher is, or has ever been, a drug user, is unconstitutional. Accordingly, we affirm the order and judgment which prohibited such testing.

The facts of this case are largely undisputed. On or about May 3, 1985, the appellant Henry P. Read, the Superintendent of Schools of the appellant Patchogue-Medford Union Free School District, informed certain probationary teachers that they would be required to submit urine samples to school nurses, and that compliance with that directive would be a condition of his recommendation for appointment to tenure. The school nurses were instructed to notify those teachers to appear before them on May 13, 1985, in order for the urine samples to be collected. Prior to that time, the petitioner Patchogue-Medford Congress of Teachers, the recognized representative of these teachers, commenced this proceeding pursuant to CPLR article 78, for a judgment, inter alia, prohibiting the school district from directing probationary teachers eligible for tenure to submit to urine tests for the purpose of detecting the use of controlled substances.

In their answer to the petition, the appellants asserted, inter alia, that the subject urine tests were in conformity with article XIX(D) of the parties' collective bargaining agreement, which requires that probationary teachers whose tenure appointment is impending must "fulfill the requirements for a medical examination and tuberculin test". However, the record establishes that the teachers concerned had already submitted to what had apparently been complete physical examinations before Mr. Read informed them that an additional test (the urine test) would be required. In light of this, Special Term properly found, as a matter of fact, that the proposed urine test "was not part of the medical examination of prospective tenure teachers but was a new procedure not mentioned in the [collective bargaining agreement]". Accordingly, as conceded by the appellants at oral argument, the proposed test was clearly not a "medical examination" within the contemplation of article XIX(D) of the collective bargaining agreement, but was, rather, purely investigatory. Thus, the medical examination provision of the collective bargaining agreement cannot be cited as justification for the proposed urine test.

The question, then, becomes whether the appellants may, in the exercise of their legitimate oversight responsibilities, order the probationary teachers to undergo drug testing, even though such testing is not called for in the parties' collective bargaining agreement and there is no basis for believing that any one of these teachers has ever used or is using illegal drugs. The petitioner argues that such arbitrary testing is unconstitutional. In addressing this argument, we must determine, first of all, whether such testing amounts to a search or seizure within the meaning of the Fourth Amendment.

The Fourth Amendment to the United States Constitution provides, in relevant part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". The essential purpose of this provision is to safeguard the privacy of individuals against arbitrary invasions by agents of the State (Delaware v. Prouse, 440 U.S. 648, 653-654, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660; Marshall v. Barlow's, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305; Camara v. Municipal Court of San Francisco 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930). In Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908, the Supreme Court stated that "[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State". The court in Schmerber (supra) held that arbitrary state-sponsored intrusions into the human body are equally as offensive to the Fourth Amendment, as unreasonable searches of a person's home or property. We now hold that the act of compelling a person to provide a urine sample is a search within the meaning of the Fourth Amendment, and we reject the argument that, since such testing involves no physical intrusion into the body, the Fourth Amendment is not implicated. In so holding, we are in accord with a number of other courts which have passed on this issue (see, e.g., Division 241, Amalgamated Transit Union [AFL-CIO] v. Suscy, 538 F.2d 1264, cert. denied 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632; Storms v. Coughlin, 600 F.Supp. 1214, 1218; Allen v. City of Marietta, 601 F.Supp. 482, 488-489).

Having decided that the proposed urine test is a search, we must next address the question of whether such a search is, under the facts of this case, unreasonable. This question requires us to perform a sensitive balancing test, in which we must weigh the affront and the invasion of privacy inherent in such testing against the need for such testing, and the benefits that would result from it, i.e., the possible identification of probationary teachers who are unfit to teach. As stated by the Supreme Court in Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884-85, 60 L.Ed.2d 447, "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted". Another critical determination is whether the probationary teachers retained a justifiable expectation of privacy upon entering the teaching profession (cf. Hudson v. Palmer, 468 U.S. 517, 525, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393; Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 [concurring opn of Harlan, J.] ).

In assessing the reasonableness of the teachers' expectation of privacy, we must contrast the nature of the teaching profession with other types of employment. We distinguish, at the outset, those businesses and industries which, because, inter alia, of the threat of criminal involvement, have historically been so pervasively regulated by the State that any person who...