On April 6, 2005, the director of the Missouri Department of Mental Health (DMH) notified employees about the DMH's new drug-testing plan in part as follows: In order to provide a safe and secure living environment for the people we serve and for those whom we work with on a daily basis, the [DMH] is implementing random drug testing in May 2005. All employees will be subject to random selection. Chester Jakubowicz and other employees brought suit against the director of DMH, Ron Dittemore, in federal district court, claiming that the random, suspicionless drug-testing policy was unconstitutional on its face and should be permanently enjoined.] LAUGHREY, D. J.... Discussion The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches. U.S. Const. amend.
IV. The purpose of the Amendment is to protect "the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction," Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602. When a governmental entity conducts urinary drug tests, those tests are considered searches under the Fourth Amendment that ordinarily would require a search warrant based on probable cause. Skinner, 489 U.S. at 616. Individualized suspicion and probable cause, however, are not necessary when a government's search is based on special needs, beyond the normal need for law enforcement. Chandler v. Miller, 520 U.S. 305, 313....
When a governmental entity alleges a "special need"-as DMH alleges here-"courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties." Chandler, 520 U.S. at 314. "The special need for drug testing 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." Id. at 318.
In special needs cases, courts employ a balancing test that considers the nature of the privacy interest, the character of the intrusion, and the nature and immediacy of the government's interest. Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 829-33 (2002). The burden of proving whether an employee falls within this special needs exception to the Fourth Amendment falls on the governmental agency seeking to conduct the testing.
"The government must prove... that its search meets a general test of ‘reasonableness.'" Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1058 (7th Cir. 2000).... Role Model DMH's drug testing policy applies, on its face, to every person employed by DMH, from the Director to an accountant to a receptionist, both in and outside residential treatment centers. Defendant Dittemore justifies including all DMH employees in its drug testing program because, according to the Department, every employee is a role model for DMH's clients. Dittemore argues that some or most of DMH's clients participate in vocational programs which require them to work in DMH facilities. He also contends that drug addicts being treated by DMH can spot a drug user better than the professional staff of DMH.
Dittemore then reasons that if a client sees that a drug using employee is not punished by DMH, the client will conclude that DMH is duplicitous when it expects its clients to live a drug free life.... Dr. Vincenz did not identify a single DMH patient who had special skills at detecting prior drug use, making it impossible to test his hypothesis. Nor has Dr. Vincenz identified any testing or professional literature to support a conclusion generally that drug users are better than trained staff at identifying drug users. Dr. Vincenz's conclusions on this subject are particularly puzzling because he suggests that the special ability to discern the subtle evidence of prior drug use is possessed by family members of the addicted person as well.
Vincenz Dep. at p. 43. Yet, he does not explain how an untrained family member is better able to detect this subtle behavior but a trained DMH supervisor who is around drug addicts regularly is not able to discern that DMH employees are using drugs outside the workplace. Because the Court does not find persuasive Dr. Vincenz's testimony that DMH clients are better than trained staff at identifying off duty drug use by DMH employees, it rejects DMH's argument that there is a special need to randomly drug test all DMH employees, even those that do not provide patient care.
If DMH's staff is as able as DMH's clients to see that a DMH employee is engaged in off duty drug use, there is no need for random testing of employees. Drug testing can be done based on an actual suspicion that an employee's drug use is changing cognition, response time, ability to make appropriate judgments; i.e., things that affect the quality of the employee's job performance. The weight to be given to DMH's role model argument is also diminished by the fact that DMH has not instituted any screening mechanism to address other employee behaviors that might undermine DMH's treatment plan.
There are no special testing measures for alcohol use. There is no evidence that people with eating disorders are investigated even if they physically exhibit their disease. It does not make sense that the role model argument would apply only to drug users. DMH's role model argument is also undermined by its own admission that if an employee tests positive for drugs, they are not disciplined unless they refuse treatment. If no discipline is imposed, the employee would continue to work at DMH and a patient with the sixth sense to detect prior drug use would not know that DMH had taken corrective procedures.
Thus, under Defendant's theory, the DMH client would continue to believe that DMH was condoning drug use.... Conclusion In the end, DMH's decision to subject the Plaintiffs to random drug tests is nothing more than a "gesture or symbol" that DMH does not approve illegal drug use. The Court is unaware of any government agency that approves illegal drug use. If DMH's role model justification for agency-wide drug testing is Constitutional, then the Supreme Court has indeed wasted its time identifying the many factors that must be present before Fourth Amendment protections will be sacrificed for the special needs of the government.
Every public employer has an interest in ensuring that its employees are not under the influence of illicit drugs and that they are role models for the community. Because this interest is so pervasive, if it alone were enough to justify warrantless drug testing, the Fourth Amendment's protection for public employees would be meaningless.
The exception would, in the end, swallow the rule. In Chandler, Georgia enacted a statute that required candidates for public office submit to drug testing before their names could be placed on the ballot. The Supreme Court struck down the provision because Georgia's only articulated basis for having the policy was the need for its public officials to serve as role models. The Court stated, "The need revealed, in short, is symbolic, not ‘special,' as that term draws meaning from our case law." 520 U.S. at 322. ORDERED ... DMH is permanently enjoined from randomly drug testing the Plaintiffs.
Case Questions
1. When a governmental agency such as DMH conducts urinary drug tests, are they considered "searches" under the Fourth Amendment?
2. Did the DMH establish that it had a "special need" for the mandatory drug testing of all department employees?