Hearn v. Board of Public Education

191 F.3d 1329, 15 I.E.R. Cas. (BNA) 1013, 1999 U.S. App. LEXIS 24841
Court of Appeals for the Eleventh Circuit·Decided October 6, 1999·No. 98-8390·Published·Cited by 2 cases

Opinions

HILL, Senior Circuit Judge:

Sherry Hearn was terminated from her position as a high school teacher for refusing to take a drug test after marijuana was allegedly found in her car in the school’s parking lot. She sued defendants alleging, among other things, denial of her substantive and procedural due process rights, intentional breach of contract, violations of the Fourth and Fifth Amendments. She sought damages as well as reinstatement. The district court granted summary judgment for defendants on all claims and Hearn brought this appeal. For the following reasons, we affirm.

I.

Sherry Hearn was a teacher in Savannah for many years. She was employed under a contract which required that she abide by the policies of the Board of Education of Chatham County (Board).

In 1992, the county enacted its “Safe School Plan” which called for “zero-tolerance” of drugs, alcohol and weapons. In 1993, the Board promulgated a “Drug-Free Workplace Policy” (DFWP) governing its employees. The policy is intended to “deter users and abusers of alcohol, drugs and other controlled substances.” [1331]*1331It provides for drug testing of any employee when “supervisor observations or other objective circumstances reasonably support a suspicion that an employee may have violated the Board drug and alcohol policy.”1 The policy further requires that such testing be conducted within two hours of the incident which generates the “reasonable suspicion.” An employee’s refusal to consent to the drug test, or to a search of her personal property located at the school is cause for termination.2 Finally, “[a]ny employee who tests positive ... [for] alcohol, drugs or other controlled substances will be terminated.”

In April of 1996, campus and Chatham County, Georgia police conducted a “drug lockdown” and random drug search at Hearn’s high school in Savannah. Hearn’s car was in the school’s rear parking lot, unlocked and with its passenger side window down.

The Chatham County deputy’s drug-sniffing dog alerted at Hearn’s vehicle. The deputy let the dog enter the car through the passenger window. The dog alerted on the vehicle’s closed ashtray. A campus officer opened it and found a partially burned, hand-rolled cigarette. He testified that he field-tested it for marijuana, and it tested positive.3 The officers noticed the faculty parking permit on the dash and took it with them.

The officers went to the school’s principal, Linda Herman, and informed her of these events. She summoned Hearn, who denied knowledge or possession of any marijuana. One of the County’s officers “Mirandized” Hearn, telling her that she probably would be charged with criminal possession of marijuana.

Herman informed Hearn that, under the DFWP, she must take a urinalysis drug test within two hours. Hearn refused. Herman gave Hearn a warning letter which directed her to take the drug test. The letter stated:

[I]n the course of a drug search, a substance [found to have tested positive for cannabinoid] was found in your personal vehicle.... Based on this finding, in compliance with BOE Policy 766 — Drug Free Workplace, you are hereby directed to submit to a drug test for reasonable suspicion within [the two-hour limit]. Your failure to comply may result in disciplinary action.

Hearn, however, continued to refuse to take the drug test. Later, the Superintendent of Schools for Chatham County suspended her.4 He recommended that she be terminated for “insubordination” and “other good and sufficient cause” as the result of her failure to consent to take the drug test within the prescribed two hour period.

The Board provided Hearn with a hearing. She appeared with counsel and testified. At the end of the hearing, the Board made no findings of fact, but voted to accept the superintendent’s recommendation and terminated Hearn. Hearn appealed to the State Board of Education, which issued a written opinion upholding the Board.

H.

Hearn’s termination was for insubordination — her refusal to take the drug test within the prescribed two hour period. She argues that she cannot be terminated for her refusal because she was under no [1332]*1332obligation to take the drug test. She was not obliged to take the test because there was no “reasonable suspicion” as required by the Board’s policy prior to directing an employee to take the test. There was no reasonable suspicion because the search of her car was illegal under both the Board’s own policy which requires an employee’s consent or a search warrant in order to search an employee’s personal property at school, and under the Fourth Amendment. We find no merit in either of these contentions.5

First, the Board’s policy regarding searches of employee property is legally irrelevant to the search of Hearn’s car. The Board’s policy applies only to intraschool events, i.e., those involving only school officials and school employees. It provides what will happen when reasonable suspicion arises in an exclusively intra-school setting, as when school officials discover circumstances generating reasonable suspicion that an employee is using drugs.

That was not the case here. Reasonable suspicion arose in the context of a drug sweep of a parking lot by local law enforcement officers whose dog alerted at Hearn’s car — a law enforcement event. Neither the Board’s policy nor Hearn’s contract of employment trumps the legal authority of law enforcement officers to perform such a sweep or the subsequent search. The officers’ authority is limited only by the Constitution.

Hearn implicitly recognizes this distinction. She makes much of the fact that both the Superintendent and Herman testified that the “reasonable suspicion” which required Hearn’s consent to a drug test was based on the campus police officer’s finding of marijuana in her car, an intra-school event, not on the dog sniff and alert, a county law enforcement event. Her argument is that since a campus police officer actually found the marijuana, the Board’s policy governed his search and it should not have been conducted without her consent. Because the search was without her consent, no reasonable suspicion could arise from it and she was not required to consent to the drug test.

We find no basis in the law or in the real world to distinguish two legally distinct events in the one sweep and search. Merely because a campus police officer was present during the sweep and happened to be the one to find the marijuana does not change the fact that this was a law enforcement event, not bound by any school policy or employment contract. Even if, as Hearn argues, the Board’s policy gave employee’s a heightened expectation of privacy with regard to their personal property at school, that expectation does not bind local law enforcement. They are not parties to the contract. Whatever expectation of privacy Hearn had in her vehicle during a law enforcement event must be located in constitutional law, not local school board policies.

Second, the Constitution does not provide Hearn with any expectation of privacy in the odors emanating from her car. A dog sniff of a person’s property located in a public place is not a search within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 103 S.Ct.

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Hearn v. Board of Public Education, 191 F.3d 1329, 15 I.E.R. Cas. (BNA) 1013, 1999 U.S. App. LEXIS 24841 (11th Cir. 1999).

191 F.3d 1329 (Hearn v. Board of Public Education) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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