IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30885

UNITED TEACHERS OF NEW ORLEANS; JEFFERSON FEDERATION OF TEACHERS;

PORTIA ELLY; MELANIE C JONES; FRANK BECKEND ORF; GAIL THOMPSON;

LOUIS THOMPSON; MARILYN HORTON

Plaintiffs-Appellants,

versus

ORLEANS PARISH SCHOOL BOARD, through; MORRIS HOLMES, Superintendent

in his official capacity, and the individual Orleans Parish School

sued in their official capacity named as follows:; MAUDELLE D.

CADE; GAIL GLAPION; SCOTT T SHEA; J BEHRENGER BRECHTEL; CAROLYN G

FORD; BILL BOWERS; CHERYL Q CRAMER; JEFFERSON PARISH SCHOOL BOARD,

through; ELTO N LAGASSE, in his official capacity as the

Superintendent and the individual members of the Jefferson Parish

School Board sued in their off icial capacity named as follows:;

ROBERT WOLFE; BARRY BORDELON; O H GUIDRY; LAURIE ROLLING; CEDRIC

FLOYD; MARTIN MARINO; LIBBY MORAN; POLLY THOMAS; DR. GENE KATSANIS

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

May 29, 1998

Before WISDOM, HIGGINBOTHAM, and JONES, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Teachers and other employees attack drug testing rules of two

Louisiana school boards as contrary to the Fourth Amendment of the

United States Constitution and Article I, Section V, of the

Louisiana Constitution. The rules of the two parish boards2

requiring employees injured in the course of employment to submit

a urine specimen are claimed to be both unreasonable searches and

contrary to Louisiana Revised Statute 23:1121, which permits

employees to seek medical treatment from the physic ian of their

choice.

Plaintiffs demand injunctive relief, and several individuals

also seek money damages. The district court denied a preliminary

injunction. Today we decide plaintiffs’ appeal from that denial.

I

l

The testing requirements at issue here are part of a larger

regulatory scheme for state administration. Louisiana provides by

statute that:

A. A public employer may require, as a condition of

continued employment, samples from his employees to test

for the presenc e of drugs following an accident during

the course and scope of his employment, under other

circumstances which result in reasonable suspicion that

drugs are being used, or as a part of a monitoring

program established by the employer to assure compliance

with terms of a rehabilitation agreement.

B. A public employer may require samples from prospective

employees, as a condition of hiring, to test for the

presence of drugs.

C. A public employer may implement a program of random

drug testing of those employees w ho occupy safetysensitive or security-sensitive positions.

D. Any public employee drug testing shall occur pursuant

to a written policy, duly promulgated, and shall comply

with the provisions of this Chapter.

. . . .3

La. Rev. Stat. Ann. § 49:1015. Louisiana law governing workers’

compensation provides:

(1) no compensation shall be allowed for an injury

caused:

. . . . (b) by the injured employee’s intoxication at

the time of the injury, unless the employee’s

intoxication resulted from activities which

were in pursuit of the employer’s interests or

in which the employer procured the

intoxicating beverage or substance and

encouraged its use during the employee’s work

hours, or

. . . . (5) if there was, at the time of the accident, evidence

of either on or off the job use of a nonprescribed

controlled substa nce as defined in 21 U.S.C. 812,

Schedules I, II, III, IV, and V, it shall be presumed

that the employee was intoxicated.

. . . . (7)(a) For purposes of this Section, the employer has the

right to administer drug and alcohol testin g or demand

that th e employee submit himself to drug and alcohol

testing immediately after the alleged job accident.

(b) If the employee refuses to submit himself to drug and

alcohol testing immediately after the alleged job

accident, then it shall be presumed that the employee was

intoxicated at the time of the accident.

. . . . La. Rev. Stat. Ann. § 23:108 1. Pursuant to these statutes, the

Jefferson Parish School Board adopted the following policy:

The Jefferson Parish School System will require, as a

condition of continued employment, all employees to

submit to a drug abuse screening panel and a blood

alcohol test by the Jefferson Parish School board’s

designated agent for worker’s compensation cases following an accident dur ing the course and scope of

employment. Laboratory work will be performed by the

Board’s designated drug testing laboratory. Failure to

comply with this ma ndatory requirement may result in

disciplinary action included, but not limited to,

suspension without pay.

The Orleans Parish School Board adopted the following policy:

In addition to pre-employment substance abuse screening,

employment actions that shall require s uch testing may4

include the following: Reasonable Suspicion that there

has been a violation of rules and regulations pertaining

to substance abuse, OPSB-required annual physical

examinations, Post Accident/Post Incident screening, and

during the six (6) month random testing period following

disciplinary action and reinstatement.

2

The test requires production of a urine sample under

supervision of a monitor. Males must face a urinal in the presence

of the monitor. Females may repair to a stall where the monitor

remains separated by a visual barrier but able to hear the sounds

of the person urinating. This control is said to be necessary to

the validity of the testing program.

3

Plai ntiffs did not in seeking a preliminary injunction urge

state law beyond a general assertion that Louisiana offered greater

protection for privacy than the Constitution of the United States.

The district court did not treat state law in its orde r denying

preliminary injunctive relief, and state issues have not been urged

here as an independent basis for relief. As have the parties, we

review only the refusal to enjoin the testing as violative of the

Fourth Amendment to the United States Constitution.

Plaintiffs urge that theirs is a facial attack of the rules

of the two districts in requiring testing of teachers, teachers’

aids, and clerical workers. Plaintiffs include workers in each

category as well as the United Teachers of New Orleans and the

Jefferson Federation of Teachers. Some of the plaintiffs have been5

tested and seek money damages. We have jurisdiction, there is

standing, and they are not challenged.

The usual standards for grant of a preliminary injunction are

applicable. The only element at issue is the likelihood of success

on the merits. The district court found that there was no such

likelihood of success, and we turn directly to that issue.

II

Several relevant principles are settled. When a state orders

the collection and testin g of urine, it conducts a search.

Ordinarily there must be “individualized suspicion of wrongdoing”

to meet the Fourth Amendment’s prohibition of unreasonable

searches. C handler v. Miller

, 117 S. Ct. 1295 (1997). There are

exceptions based on “special needs, beyond the normal need for law

enforcement.” Skinner v. Railway Labor Executives’ Ass’n , 109 S.

Ct. 1402, 1414 (1989)

The two school boards require te sting of all employees

injured in the course of employment without regard to the

circumstances, even without any suggestion that a triggering injury

was caused by any misstep of the employee to be tested. Our

question is whether the school boards can fit their testing rules

within a special needs exception.

III

The Supr eme Court recently instructed that “[w]hen such

special needs

-- concerns other than crime detection

-- are alleged6

in justification of a Fourth Amendment intrusion, courts must

undertake a context-specific inquiry, examining closely the

c ompeting private and public interests advanced by the parties.”

Chandler

, 117 S. Ct. at 1301. Directly to the point, “[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.” Id . at 1295 (quoting Skinner , 109 S.

Ct. at 1417).

The interest of the state asserted here to justify its drug

testing is as well defined by what it is not as well as what it is.

We agree that evidence of drug use on the job by teachers could

identify a strong state interest. Teachers are entrusted with this

nation’s most precious asset

-- its children. We need not lower

the privacy expectations of teachers to that of students to observe

that the role model function of teachers, coaches, and others to

whom we give this responsibility adds heavy weight to the state

i nterest side of the ledger in justifying random testing without

individualized suspicion. How that balance on a given record might

be struck is not before us. Despite hints of the school boards,

the testing here does not respond to any identified problem of drug

use by teachers or their teachers’ aids or clerical workers. The

school district offered evidence that during the seven months these

tests were in place, four teachers or substitute teachers tested

positive for drugs. This datum, while troubling, is in this7

undeveloped form an uncertain base for extrapolating drug use. If

any of these three classes of workers were the object of concern,

w orkers chosen for testing are simultaneously underinclusive and

overinclusive, remarkably so. The bite is underinclusive because

only persons injured in the course of employment are to be tested.

It is overinclusive because all persons injured are tested, not

just persons inju red under circumstances suggesting their fault.

S tated another way, there is an insufficient nexus betwee n

suffering an injury at work and drug impairment. The school boards

have not shown that their rules are responsive to an identified

problem in dr ug use by teachers, teachers’ aids, or clerical

workers. Regardless, their general interest in a drug-free school

environment is not served by these rules.

That the triggering event for testing is any injury-producing

incident is no qu irk or inept rulemaking. To the contrary, the

rules appear to do precisely what they were intended to do: support

the state’s generalized interest in not paying compensation claims

o f employees whose injury was caused by drug use. Under the

Louisiana workers’ compensation scheme intoxication is a defense to

a claim. A claimant refusing “drug and alcohol testing” faces a

presumption that must be overcome to be awarded benefits. La. Rev.

Stat. § 49:1015. The statute does not insist upon the testing of

urine. Rather, the parish boards do so and reinforce the shifting

of burdens by suspending any teacher who does not submit to

testing.8 IV

The two parish school boards have offered no legal

justification for insisting upon drug testing urine without a

showing of individualized suspicion of wrongdoing in a given case,

certainly nothing beyond the ordinary needs of law enforcement.

Special needs are just that, special, an exception to the command

of the Fourth Amendment. It cannot be the case that a state’s

preference for means of detection is enough to waive off the

protections of privacy af forded by insisting upon individualized

suspicion. It is true that the principles we apply are not

absolute in their restraint of government, but it is equally true

that they do not kneel to the convenience of government, or allow

their teaching to be so lightly slipped p ast. Surely then it is

self-evident that we cannot rest upon the rhetoric of the drug

wars. As destructive as drugs are and as precious are the charges

of our teachers, special needs must rest on demonstrated realities.

Failure to do so leaves the effort to justify this testing as

responsive to drugs in public schools as a “kind of immolation of

privacy and human dignity in symbolic opposition to drug use,” that

troubled Justice Scalia in Von Raab

. National Treasury Employees

Union v. Von Raab

, 109 S.Ct. 1384, 1399 (1989) (Scalia, J.,

dissenting).

V

The rule s attaching adverse consequences to refusals to

consent to such searches cannot stand. The district court abused9

its discretion in refusing a preliminary injunction. We reverse

and remand with instructions that defend ants are to be enjoined

f rom requiring teachers, teachers’ aids, and clerical workers to

submit urine specimens for testing in post-injury screening, absent

adequate individualized suspicion of wrongful drug use. This

injunction will not cover testing of blood or breath.

REVERSED and REMANDED with instructions.

EDITH H. JONES, special concurrence:

I concur in all but Part IV of Judge Higginbotham’s

excellent opinion and emphasize that it deals only with the

constitutionality of the schools’ p olicies of testing teachers

post-injury on the specific facts presented before us.