Sunday, June 10, 2012
Over a dissent and reversing the district judge, a DC Circuit panel held unconstitutional the random drug testing policy applicable to all employees working at Job Corps Civilian Conservation Centers operated by the U.S. Forest Service in its opinion in National Federation of Federal Employees-IAM v. Vilsack.
The majority described the random drug testing policy as “a solution in search of a problem” and thus concluded that the “designation of all Forest Service Job Corps Center employees for random drug testing does not fit within the ‘closely guarded category’ of constitutionally permissible suspicionless searches” permissible under the Fourth Amendment.
The panel reasoned that "where the government asserts 'special needs' for intruding on Fourth Amendment rights, as here, the specific context matters" and in demonstrating that the governmental interests are “important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy,” the government must provide a foundation for the "determination that the requirement of individualized suspicion is impractical in the Forest Service Job Corps Center context."
While the usual employees subject to random drug testing are those involved in high security or safety positions, the US Department of Agriculture in 1996 designated all Forest Service Job Corps staff positions for random drug testing. There were, however, various objections and drug testing only occurred on the basis of individualized suspicion. It was not until 2010 that the Forest Service informed the Union, during collective bargaining, "that all Job Corps Center staff would be subject to the random testing program." (emphasis in original). Interestingly, the government argued that because the policy had first been advanced (even if not implemented) in 1996, the employees no longer had any expectation of privacy in not being subject to random drug tests.
The panel rejected this argument and also found the Secretary of Agriculture's rationales supporting special needs too speculative. Quoting from the government's brief that the government has a “legitimate interest in deterring drug use that might affect work performance, that employees who use drugs off the job risk performance-impairing addiction, that off-duty drug users may buy [or sell] drugs at work,” the panel found these interests insufficient to justify a Fourth Amendment intrusion absent more specifics.
The government argued that because the Job Corps Civilian Conservation Centers employees supervised students, this essentially constituted a special need. The dissenting judge found this contention persuasive. However, as the majority noted, in Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) - - - upholding random drug testing of student athletes in the context of a documented drug abuse issue - - - "the Supreme Court did not imply that protection of this interest would justify random drug testing of the teachers and other staff at the schools — to the contrary, it 'caution[ed] against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts.' "
In short, without some sort of documented problem, or some particular special need such as security or safety, a random drug testing policy of federal employees does not satisfy the Fourth Amendment.