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Public schools, as state actors, are bound by the prohibitions of the Fourth Amendment of the United States Constitution: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” When school administrators suspect employees are using or possessing drugs, a typical search might involve looking in the employee’s pockets, desk, or bag. However, administrators should remember that drug testing—whether through urinalysis, a breathalyzer, or a blood draw—constitutes a search for Fourth Amendment purposes. Importantly, the Fourth Amendment only prohibits unreasonable searches, meaning a school can require a drug test if it is reasonable. In this article, we discuss what constitutes a reasonable search and what school leaders should know about employee marijuana use.

Can a School Require Employees to Submit to a Drug Test?

In short, it depends.

Generally, the Fourth Amendment requires searches—including drug tests—to be based upon probable cause, a high legal standard; however, that standard is applicable in the context of criminal prosecutions. When it comes to searching public school employees, the search must be based upon individualized suspicion or wrongdoing to be considered reasonable.

However, the U.S. Supreme Court has carved out an exception when individualized suspicion is not required. Specifically, public school employees can be searched without individualized suspicion if employees are in safety-sensitive positions. In 1989, the Court decided two cases—Skinner v. Railway Labor Exec. and Nat’l Treasury Emps. Union v. Von Raab—that clarified individualized reasonable suspicion was not required when the drug testing served “special needs, beyond the normal need of law enforcement” (Skinner, p. 619). These cases defined safety-sensitive positions as involving a “discharge of duties fraught with risks of injury to others that even a momentary lapse of attention could have disastrous consequences” (Skinner, p. 628). For example, the Court recognized that substance-impaired railroad operators could cause great human loss and thus, the safety interest to prevent accidents outweighed the privacy interest of the employees.

What Jobs Are Safety Sensitive?

Various courts have attempted to clarify what jobs fall within this safety-sensitive classification. Because some of these decisions are from lower courts throughout the country, the precedent set by these decisions does not bind every school. Administrators should ensure their practices and policies align with the law in their jurisdiction.

School Resource Officers (SROs) and Employees Who Carry Firearms

The Supreme Court in Von Raab permitted the suspicion-less drug testing of government employees who applied for positions enforcing drug laws and prosecuting drug traffickers. In applying the balancing test between the public’s interest and the employee’s reasonable expectation of privacy, the Court determined that the public’s interest in having law enforcement agents capable of using deadly force to execute their duties unimpaired outweighed the individual’s privacy expectations. Based on this precedent, schools across the country can likely require SROs or other employees carrying firearms to submit to a drug test.

Bus Drivers and Commercial Driver License (CDL) Holders

Federal Department of Transportation regulations (49 C.F.R. § 382.305) permit random drug testing for those holding a CDL, which in all states includes bus drivers. The regulations require a drug testing program, so administrators should ensure this testing program is consistently and accurately implemented. Because this guidance comes from the federal government, this regulation applies to all states.

Bus/Vehicle Maintenance Employees

The Northern District Court of Alabama determined that a school bus mechanic is a safety-sensitive position (English v. Talladega Cnty. Bd. of Educ., 1996). Citing the Supreme Court’s decision in Skinner, the court noted that the employee could cause “great human loss” if they were under the influence of drugs or alcohol when repairing or maintaining the vehicle. For this reason, a mandatory, random drug test was permissible.

Custodians, Grounds Crew, and Employees Who Operate Heavy Machinery

The Fifth Circuit Court of Appeals ruled that a custodian could be subjected to suspicion-less searches due to their interaction with students and use of potentially dangerous substances and equipment (Aubrey v. Sch. Bd. of Lafayette Parish, 1998). Similarly, the Michigan Supreme Court determined that a pre-employment, mandatory drug test of an individual who operated a lawnmower near a public highway was constitutionally permissible, as that position was safety sensitive (Middlebrooks v. Wayne Cty, 1994). The court concluded that the public’s interest in preventing collisions between lawnmowers/mechanical equipment and cars traveling on a highway was more important than the individual’s
privacy expectation.

School Nurses

The Northern District Court of California declared that a hospital nurse is a safety sensitive position and thus, random drug testing is permissible (Am. Fed’n of Gov’t Emps., L-2110 v. Derwinski, 1991). Nurses have a lesser expectation of privacy due to the fact they are “licensed members of professions subject to qualifications, examination and regulation…” (p. 1499). While this precedent is binding to schools in the Northern District of California, administrators should be aware that a court may analyze the difference in responsibilities between a school nurse and a hospital nurse and determine a school nurse cannot be required to take a drug test without reasonable suspicion.

Teachers and Administrators

Most sweepingly, the Sixth Circuit Court of Appeals, which includes Ohio, Michigan, Tennessee, and Kentucky, considered the question of whether teachers occupy safety-sensitive positions, and determined they do (Knox Cnty. Educ. Ass’n v. Knox Cnty. Bd. of Educ., 1998). The court explained:

Although the position of schoolteacher may not fit neatly into the prototypical ‘safety-sensitive’ position, we do not read the definition of ‘safety-sensitive’ so narrowly as to preclude application to a group of professionals to whom we entrust young children for a prolonged period of time on a daily basis…Children, especially younger children, are active, unpredictable, and in need of constant attention and supervision. Even momentary inattention or delay in dealing with a potentially dangerous or emergency situation could have grievous consequences (p. 378).

The court further stated that situations quickly arise in schools that can result in student harm or injury, such as a student choking at lunch or being injured during recess. Due to the safety-sensitive nature of the teacher position, the court upheld a one-time, suspicion-less drug testing of teachers and administrators. Currently, this precedent applies only to the above-mentioned states, and may be persuasive to other circuits.

Can Employees Be Disciplined for Marijuana Use?

Again, it depends.

Marijuana is still an illegal, Schedule I drug under the federal Controlled Substance Act of 1970 (21 U.S.C. § 801 et seq.); however, many states have moved to legalize or at least decriminalize marijuana use. Most states permit marijuana use for medicinal purposes only, and almost half allow recreational use.

School leaders should consider state and local laws and regulations when deciding whether to discipline an employee for marijuana use. For example, some states prohibit an employer from taking adverse actions against an employee who has a medical certification use. In other states that still strongly prosecute marijuana use, employees could be terminated.

To complicate matters, an employee could legally use marijuana in one state then return to work in a state where marijuana is prohibited. Further, marijuana can stay in a person’s system for up to 30 days, so a positive drug test does not mean the person is impaired or has used it recently.

Recommendations

To avoid legal violations, school districts should have clear policies in place that define who is subject to drug testing, when those employees can be tested, and the factors the district considers when determining whether there is reasonable suspicion for drug testing. Equally important to having a good policy in place is applying it uniformly and consistently. This helps to ensure an employer will not be vulnerable to a potential discrimination lawsuit. For example, if only male employees are subject to drug tests, the school opens itself up to liability for disparate treatment.

Schools can also explicitly outline signs and symptoms that could suggest drug use and permit the school to test based
on reasonable suspicion. These may include:

  • “Strong odors.
  • Questionable movements such as twitching or staggering.
  • Dilated or watery eyes.
  • Flushed, confused, or blank facial expression.
  • Slurred speech or an inability to verbalize.
  • Argumentative, irritable, or drowsy behavior.
  • Sleeping, falling unconscious, or otherwise being nonresponsive” (Nagele-Piazza, 2020).

School leaders should follow local laws and consider prioritizing discipline when an employee’s marijuana use or possession has directly interfered with job duties. For example, employees who either used or had marijuana at work or were under the influence at work could be disciplined similarly to those using/possessing alcohol in school environments.

Hannah B. Gahimer, JD, is an associate attorney at Church Church Hittle + Antrim. Janet R. Decker, JD, PhD, is an associate professor of education at Indiana University and a co-author of Legal Rights of School Leaders, Teachers, and Students.

References

21 U.S.C. § 801 et seq.

49 C.F.R. § 382.305

Am. Fed’n of Gov’t Emps., L-2110 v. Derwinski, 777 F. Supp. 1493, 1499
(N.D. Cal. 1991).

Aubrey v. Sch. Bd. of Lafayette Parish, 148 F.3d 559 (5th Cir. 1998).

English v. Talladega Cnty. Bd. of Educ., 938 F. Supp. 775 (N.D. Ala. 1996).

Knox Cnty. Educ. Ass’n v. Knox Cnty. Bd. of Educ., 158 F.3d 361 (6th Cir. 1998).

Middlebrooks v. Wayne County, 521 N.W.2d 774 (1994).

Nagele-Piazza, L. (2020). Workplace drug testing: Can employers still screen for marijuana? SHRM. shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/can-employers-still-test-for-marijuana.aspx

Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989).

Skinner v. Railway Labor Exec. Assoc., 489 U.S. 602, 619 (1989).