United Teachers v. Orleans Parish School Board

142 F.3d 853, 13 I.E.R. Cas. (BNA) 1835, 1998 U.S. App. LEXIS 10720, 1998 WL 276237
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 29, 1998
Docket97-30885
StatusPublished
Cited by21 cases

This text of 142 F.3d 853 (United Teachers v. Orleans Parish School Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United Teachers v. Orleans Parish School Board, 142 F.3d 853, 13 I.E.R. Cas. (BNA) 1835, 1998 U.S. App. LEXIS 10720, 1998 WL 276237 (5th Cir. 1998).

Opinions

Patrick e. 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 boards 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 physician 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

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 presence 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 [855]*855assure 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 who occupy safety-sensitive 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.

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 substance 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 testing or demand that the 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. § 23:1081. 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 during the course and scope of employment. Laboratory work will be performed by the Board’s designated drug testing laboratory. Failure to comply with this mandatory 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 such testing may 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.

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.

Plaintiffs 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 order denying preliminary injunctive relief, and state issues have not been urged here as an independent basis for relief. As have the parties, we review [856]*856only the refusal to enjoin the testing as viola-tive 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 been 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 testing of urine, it conducts a search. Ordinarily there must be “individualized suspicion of wrongdoing” to meet the Fourth Amendment’s prohibition of unreasonable searches. Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). There are exceptions based on “special needs, beyond the normal need for law enforcement.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 619, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989)

The two school boards require testing 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.

Ill

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United Teachers v. Orleans Parish School Board
142 F.3d 853 (Fifth Circuit, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
142 F.3d 853, 13 I.E.R. Cas. (BNA) 1835, 1998 U.S. App. LEXIS 10720, 1998 WL 276237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-teachers-v-orleans-parish-school-board-ca5-1998.