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Friedenberg v. School Board of Palm Beach County

United States Court of Appeals, Eleventh Circuit

December 20, 2018

JOAN E. FRIEDENBERG, on behalf of herself and a class of similarly situated individuals, Plaintiff-Appellant,

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:17-cv-80221-RLR

          Before ED CARNES, Chief Judge, MARCUS, and EBEL, [*] Circuit Judges.


         A suspicionless search by the government is presumptively unconstitutional. So goes the basic hornbook law of the Fourth Amendment. The details are a bit more complex. Suspicionless searches are permissible in a narrow band of cases where they serve sufficiently powerful and unique public needs. The force of these needs depends heavily on the context in which the search takes place.

         At issue today is a matter of first impression -- whether a county school board may require all applicants for substitute teacher positions to submit to and pass a drug test as a condition of employment. That is, to put it more directly, whether the Palm Beach County School Board (the "School Board") may, without any suspicion of wrongdoing, collect and search -- by testing -- the urine of all prospective substitute teachers. We think that the School Board has a sufficiently compelling interest in screening its prospective teachers to justify this invasion of the privacy rights of job applicants, and thus conclude that the School Board has not violated the constitutional mandate barring unreasonable searches and seizures. As we see it, ensuring the safety of millions of schoolchildren in the mandatory supervision and care of the state, and ensuring and impressing a drug-free environment in our classrooms, are compelling concerns. Because we recognize today a special need to conduct such testing, and because the balance of interests weighs heavily in its favor, we hold that the suspicionless testing of substitute teacher applicants in Palm Beach County is permissible and affirm the district court's denial of a preliminary injunction.



         Joan Friedenberg applied for several advertised positions -- tutor, substitute teacher, and early childhood aide -- in the Palm Beach County School District. Among other things, the online application required Friedenberg to agree to be tested for drugs. In February 2017, Friedenberg received a conditional offer to become a substitute teacher. She was told, however, that she would need to be fingerprinted -- for a full background check -- and would need to pass a drug test before she could be officially hired. Friedenberg was fingerprinted but refused to submit to drug testing.

         Since our constitutional analysis depends in substantial measure on the specific facts and the unique circumstances found in our public schools, we are obliged to examine closely the testing protocol adopted by the School District, the efficacy of the testing regime, and the duties and responsibilities of substitute public school teachers. The drug testing was required under the School District's "Drug and Alcohol-Free Workplace" policy, which provides for drug testing to be performed in conformity with Florida's Administrative Code. See Fla. Admin Code. R. 59A-24.005(3). The policy required, among other things, pre-employment drug testing of all job applicants. The relevant provision read this way:

Pre-employment screening will be required of all applicants before employment with the District. Any applicant who tests positive in the pre-employment screening for a drug as defined in this Policy will not be hired and is not eligible to re-apply for employment with the District for one year following the confirmed positive test.

         The School District has a separate policy requiring suspicionless drug testing of those employees and volunteers who perform "safety-sensitive functions," mostly involving the operation of commercial vehicles.[1]

         Under the pre-employment drug-testing policy, the applicant typically provides a urine sample in the privacy of a bathroom stall. Fla. Admin Code. R. 59A-24.005(3). While the applicant provides the sample, collection site staff remain in the room, but outside the stall. Fla. Admin Code. R. 59A-24.005(3)(c)(7). Before collection, applicants are asked to wash their hands, empty their pockets, remove outer clothing, and place all personal belongings aside. Fla. Admin Code. R. 59A-24.005(3)(c)(5)-(6). A wallet may be kept, but staff may search it for contaminants. Fla. Admin Code. R. 59A-24.005(3)(c)(5). After collection, the testing staff observe the urine sample for evidence of tampering. Fla. Admin Code. R. 59A-24.005(3)(c)(12). If tampering is suspected, a supervisor may approve collection of a second sample under direct observation by a person of the same gender as the applicant. Fla. Admin Code. R. 59A-24.005(3)(c)(13). Drug-tested applicants are also required to disclose all medications they are taking before being tested.

         Select information from the drug testing is reported to the School Board. Among other things, positive test results, including the substance or substances for which the specimen tested positive, are reported. The reports also indicate whether an individual refused testing or left the testing site. Five individuals within the School Board's Department of Risk and Benefits Management receive this information. The results are held in a "confidential electronic medical folder" and are not reported to any law enforcement official. The hiring school site or department is informed only that the applicant did not pass a medical examination. Moreover, self-disclosed information about medications is seen only by the collection staff and a review officer -- a position the District outsources.

         Testing under this policy has revealed relatively few positive results. In 2016, 4, 965 job applicants were subject to the District's pre-employment screening. Of that total, forty individuals were disqualified by testing positive or failing to submit to the drug test. The disqualifications included thirty-three positive tests and seven individuals who refused to take the test or left the testing site. That is, of 4, 958 job applicants who submitted to drug testing, 0.67 percent tested positive. Twenty-seven of the thirty-three positive tests were positive for marijuana; three more were positive for benzodiazepines (antianxiety drugs), two for cocaine, and one for opiates.

         Among the forty job applicants disqualified by the drug testing regime were twenty-five applicants for noninstructional roles and fifteen applicants for instructional roles, including six substitute teacher applicants. Of the six disqualified substitute teacher applicants, four tested positive for marijuana, one tested positive for cocaine, and one refused to take the test. Eleven of the forty disqualified applicants began work with the District and worked for some time before the results of the drug test disqualified them, including three teachers and a coach. Notably, the record does not reflect how many applicants for substitute teachers -- or how many applicants for instructional positions -- were tested of the total number of job applicants tested during the 2016 year. Nor is there any empirical data addressing how many would-be applicants for instructional positions were deterred by the County's drug-testing regime.

         The typical workday of a substitute teacher in the School District includes five to six hours of classroom time, generally alone with students. Before the school day, substitute teachers check in and are seen by others, such as a school principal, in the school office; they also check out at the office at the end of the day. During the day, substitutes may be monitored by supervisors or by other teachers through classroom visits or perhaps when taking students to lunch, recess, or other locations. Substitute teachers also have a variety of safety-related responsibilities which include monitoring students for safety purposes, such as preventing or stopping fights; reporting and addressing hazards or other unsafe circumstances; detecting and promptly responding to student health issues; detecting and reporting student drug use or possession; and reporting suspected child abuse. As the Chief of the County's school district police explained, school personnel, including substitute teachers, are "on the frontlines of securing the campus and are often the first responders to any given incident."

         According to the School District's Substitute Teacher Handbook, a substitute teacher's specific responsibilities include addressing student behavior and emergencies. Thus, for example, any complaint about student illness "should receive immediate attention." Student accidents must be reported immediately as well. And control of the classroom is characterized as "a primary concern." The Handbook further provides: "It is [the substitute teacher's] responsibility to discuss any limitation or restriction with the substitute contact before [the substitute teacher] begin[s] the assignment so that [the substitute teacher] will be prepared to provide safety and accountability for students in any situation and at all times." And the Handbook says that substitutes are "as legally responsible for students, equipment, and materials as is the regular teacher."


         In February 2017, Friedenberg sued the School Board in the United States District Court for the Southern District of Florida, claiming that the requirement of suspicionless drug testing of School District employment applicants violated the Fourth Amendment. She sought class action relief, describing the putative class as including "[a]ll job applicants for non-safety-sensitive positions with the Palm Beach County School District." Friedenberg sought declaratory and injunctive relief.

         Friedenberg moved the district court for preliminary injunctive relief, arguing, among other things, that she could establish a substantial likelihood of success on the merits. After conducting a hearing, the district court denied preliminary injunctive relief. As an initial matter, the district court determined that Friedenberg had established standing to challenge only the application of the drug-testing policy to substitute teachers, not as to all School District employment applicants. Therefore, the court addressed only suspicionless drug testing of substitute teacher applicants. The district court also concluded that the School Board had established a special need to conduct suspicionless drug testing of substitute teacher applicants. It explained that even "a momentary lapse of attention . . . could be the difference between life and death," and that while "the magnitude of the public safety risk presented by an impaired teacher is not comparable to that presented by an impaired railway operator or armed customs official," the special responsibility of substitute teachers for "the care of society's most vulnerable members" was distinct and notable.

         The district court then determined that the balance of interests strongly favored the policy of suspicionless testing of substitute teacher applicants. And though Friedenberg's privacy interests were implicated in the testing regime, the district court concluded that the urinalysis was a "relatively noninvasive" process and the testing regime was "not unduly intrusive." The court found that "although the efficacy of the scheme is not beyond question, the need asserted by [the School Board] -- the protection of the children under a substitute teacher's charge -- is compelling indeed." Accordingly, Friedenberg had not established a substantial likelihood of success on the merits.

         Friedenberg then filed this interlocutory appeal.


         We review the denial of a preliminary injunction for abuse of discretion. See, e.g., Siegel v. LePore, 234 F.3d 1163, 1175 (11th Cir. 2000) (en banc). A preliminary injunction may be entered when a plaintiff establishes four elements: "(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) that the threatened injury to the plaintiff outweighs the potential harm to the defendant; and (4) that the injunction will not disserve the public interest." Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002) (citing Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001)). Here the district court determined that a preliminary injunction was not warranted because Friedenberg had not shown a substantial likelihood of success on the merits. The heart of this dispute surrounds whether, on this preliminary record, there is a substantial likelihood that the drug testing policy violates the Fourth Amendment. We hold that there is not.

         The Fourth Amendment protects the "right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. amend. IV. Undeniably the school district's urinalysis drug tests are searches that implicate the Fourth Amendment. See, e.g., Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989). We consider whether the search is a reasonable one.

          "The default rule in this context . . . is that 'to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.'" AFSCME v. Scott, 717 F.3d 851, 866 (11th Cir. 2013) (quoting Chandler v. Miller, 520 U.S. 305, 313 (1997)). However, "neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." Von Raab, 489 U.S. at 665. The Supreme Court has developed a narrow exception to the Fourth Amendment expectation of individualized suspicion where a search "serves special governmental needs." Id.; Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (search made without individualized suspicion of wrongdoing can be reasonable "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable" (quotation omitted)). The special need must raise a "concern[] other than crime detection," and in order to satisfy the Fourth Amendment, the special need must be "substantial -- important enough to override the individual's acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment's normal requirement of individualized suspicion." Chandler v. Miller, 520 U.S. 305, 314, 318 (1997).

         When a special need is claimed, we are obliged to "undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties." Id. at 314. And "[i]n limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion." Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 624 (1989). As we wrote in AFSCME v. Scott, 717 F.3d 851 (11th Cir. 2013), a "'compelling state interest,' in the Fourth Amendment context, [does not describe] a fixed, minimum quantum of governmental concern." Id. at 717 F.3d at 867 (quotations omitted). Resolving a case like this one requires identifying what interest the government has, then measuring the weight of that interest and, eventually, balancing it against other factors. See id.

         Our consideration of the merits then is twofold. Once a plaintiff has shown that the government conducted a search without individualized suspicion -- which the School Board concedes -- the burden shifts to the government to establish that it has a "special need" sufficient to warrant departure from the Fourth Amendment's baseline requirement of individualized suspicion. See Id. at 880. If a special need is presented, we "undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties to determine the reasonableness of the search." Lebron v. Sec'y, Fla. Dep't of Children & Families, 710 F.3d 1202, 1207 (11th Cir. 2013) (quotation omitted). At this balancing stage, "the ultimate burden of persuasion remains squarely on the plaintiff." AFSCME, 717 F.3d at 880. On this record, and in the unique context of public schools, we are satisfied that the School Board's testing regime as applied to substitute teacher applicants is a reasonable one, and the district court committed no abuse of discretion in denying a preliminary injunction.


         Neither the Supreme Court nor this Court has ever faced the question whether there is a sufficiently compelling need to justify the invasion of privacy entailed in suspicionless drug testing of public school teachers. But we are not writing on a blank slate. The Supreme Court has considered the constitutionality of suspicionless drug-testing regimes five times in the past thirty years. It has found special needs compelling enough to permit suspicionless drug testing of public school students participating in extracurricular activities and also of government employees whose work implicates public safety.


         For our purposes, the relevant precedent begins with the Supreme Court's declaration that, for Fourth Amendment purposes, public schools are unique. In New Jersey v. T.L.O., 469 U.S. 325 (1985), the Court set out as a foundational principle that "[a]lthough the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place." Id. at 337. In that case, a student had been caught smoking in a school lavatory and a school administrator had searched her purse. Id. at 328. It will come as no surprise that the administrator, an Assistant Vice Principal, had not sought or obtained a warrant before performing this search. See id. The ...

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