Blanket drug testing of college students is officially unconstitutional, a US Court of Appeals for the Eighth Circuit ruled in December, reversing a previous panel opinion. The US Court of Appeals for the Eighth Circuit's 9-2 en banc decision in Little-Aikeley v. Strong reinstates a lower court ruling that suspicionless mandatory drug testing of college students' urine violates the Fourth Amendment.
In 2011 a public technical college in Linn, Missouri rolled out a new drug testing plan for all incoming students. Linn State Technical College (recently renamed the State Technical College of Missouri) required students to submit to urine testing by default, imposing on them a $50 fee for a test costing $28. The program's stated purpose was "to provide a safe, healthy and productive environment for everyone who learns and works at Linn State Technical College by detecting, preventing and deterring drug use and abuse among students."
In its first semester Linn State's testing program faced a legal challenge by student activists in coordination with the American Civil Liberties Union (ACLU). Branden Kittle-Aikeley and other members of the Linn State chapter of Students for Sensible Drug Policy brought the class action after being required to provide urine samples. Their lawsuit alleged that blanket urine testing of all students, without any individualized suspicion, violated the Fourth Amendment's prohibition on unreasonable searches. Legal representation was provided by the ACLU of Missouri and the ACLU Criminal Law Reform Project. Students for Sensible Drug Policy Foundation also submitted an amicus curiae brief in the case.
Suspicionless Drug Testing is Unconstitutional, But Not for Students in Safety-Sensitive Programs
The District Court for the Western District of Missouri held a preliminary injunction hearing in October 2011. In November the district court granted the students' request for a preliminary injunction. This injunction was vacated by a panel of the Eighth Circuit in 2013. The panel construing the students' constitutional claim as a facial challenge, found that Linn State's program [PDF] "may have some unconstitutional applications" but could not be deemed unconstitutional on its face.
Plaintiffs amended their complaint to clarify that they were seeking as-applied relief. The Eighth Circuit panel's suggestion that the testing program may be constitutional in certain circumstances led the district court to conduct a program-by-program analysis of safety needs.
At a bench trial in July 2013, Linn State failed to present evidence of safety concerns associated with its programs, some of which involved heavy industrial projects. Linn State failed to demonstrate any relationship between drugs and the very few accidents occurring on its campus. Instead, Linn State argued for a presumption that all its students were involved in safety-sensitive coursework.
The district court did not follow Linn State's proposed presumption. In September 2013 it upheld the drug testing requirement [PDF] only as applied to the students enrolled in five of Linn State's programs found to be "safety-sensitive." Linn State was permanently enjoined from drug testing most of its students, those not enrolled in one of the five programs posing a "significant safety risk to others." For example, students enrolled in Linn State's "non-safety sensitive" Design Drafting program were no longer subject to suspicionless mandatory testing.
On appeal a divided panel of the US Court of Appeals for the Eight Circuit concluded that the district court erred in conducting a program-by-program analysis. The panel found that Linn State's blanket testing program was a reasonable means of fostering a safe and drug-free environment at a school with many safety risks.
In December, the US Court of Appeals for the Eighth Circuit en banc rejected the panel's conclusion and reinstated the district court's injunction, approving its program-specific analysis of safety risk to others.
Is Maintaining a Drug-Free School Environment a Special Need Justifying Suspicionless Testing?
Under Fourth Amendment doctrine, searches such as urine tests may only be conducted absent individualized suspicion of criminal activity when an important government interest is at stake. Only a substantial special need outweighing the individual's privacy interest can justify the reduction in Fourth Amendment protection required for suspicionless drug testing.
Last month's ruling follows precedent in recognizing that public safety may be such a significant special need. The holding accordingly limits the constitutional application of Linn State's suspicionless drug testing to those students enrolled in programs posing a significant safety risk.
Linn State argued that alongside public safety, ensuring a drug-free college environment was an additional special need justifying deviation from traditional Fourth Amendment requirements. Linn State argued that drug testing helps to ready students for the workplace and "helps instructors focus their time on instructing." Linn State also argued that students choosing to attend their college accepted a "package deal" that included drug testing.
The US Court of Appeals for the Eighth Circuit rejected this line of argument. It relied on Chandler v. Miller, a Supreme Court case striking down a Georgia statute requiring candidates for state office to pass drug tests. In Chandler, the court did not accept Georgia's claim that it had a special need for that law. The court conducted a close review of the scheme, finding that Georgia had failed to demonstrate the need.
In Linn State's case, it made no showing that student drug use presented a concrete danger. Linn State did not believe that it had a student drug use problem greater than that experienced by other colleges. Nor did the college present any evidence that student drug use distracted its instructors.
The latest ruling in Kittle-Aikeley v. Strong holds that fostering a drug-free environment is simply not a "special need" justifying Linn State's suspicionless drug testing program.
Implications for Future Drug Testing of College Students
What lessons for college administrators and student activists can be taken from the latest decision? The ruling against Linn State on the question of the drug-free school environment as a special need focuses on the college's failure to substantiate any hazards posed by student drug use.
It does say unequivocally that "protecting adults from disadvantaging themselves in future employment contexts does not constitute a special need" sufficient to justify suspicionless testing. Therefore, any future college drug testing program cannot be premised on the notion that drug testing instills workplace readiness in students.
Notably, Kittle-Aikeley leaves open the possibility that a college in the midst of a demonstrated drug crisis might be able to implement a suspicionless drug testing program without running afoul of the Fourth Amendment. Quoting Chandler, the US Court of Appeals for the Eighth Circuit notes that a "demonstrated problem of drug use, while not in all cases necessary to the validity of a testing regime, would shore up an assertion of a special need." Thus, a college that demonstrated the concrete dangers presented by its students' drug use might be well on its way to justifying a suspicionless testing regime.
Just how substantial a campus drug crisis must be to rise to the level of a "special need" is unclear. As noted in Judge Beam's dissent (joined by Judge Loken), the death rate from drug abuse in the US has doubled from 2000 to 2014. If the status quo is problematic, then perhaps Linn State's admission that its student drug problem is no greater than at other colleges is not persuasive.
The en banc majority likely would want to see campus-specific evidence of a drug crisis. Their dismissal of Linn State's drug-free environment "special need" claim on the basis of a lack of evidence stops short of denying that such a "special need" may be shown in the future. In two cases involving middle and high school students, Vernonia School District 47J v. Acton and "Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, the Supreme Court upheld suspicionless drug testing programs. In these cases the district courts' findings that the schools were faced with imminent drug problems were not disturbed.
On the other hand, drug testing programs like Linn State's are distinct from Vernonia/Earls in two significant ways. First, as the US Court of Appeals for the Eighth Circuit notes, the government's interests in Vernonia and Earls were heightened because public middle and high schools act as temporary state custodians of their pupils. Meanwhile colleges like Linn State do not play this in loco parentis role with respect to their adult students. Second the drug testing schemes at issue in Vernonia and Earls were not applied to all students, but only to those desiring to participate in extracurricular activities.
Future drug testing schemes at the college level will face difficulty equating themselves to permissible testing schemes at the high school and middle school level. Schemes applying to all incoming students are particularly suspect from a Fourth Amendment perspective. Ultimately however, a college with strong evidence of a campus drug crisis may be able to convince a court that a short-term suspicionless test, for example, would be justified in that circumstance. The US Court of Appeals for the Eighth Circuit's holding that suspicionless mandatory drug testing of college students is unconstitutional is an important ruling for the rights of students everywhere to be free of invasive, generalized searches.
Drug use is a significant public health crisis in the US, with students particularly at risk of harm from drug use. Suspicionless drug testing programs that violate the Fourth Amendment are not the answer. Studies show that costly student drug testing programs are of limited effectiveness at reducing drug use. Suspicionless student drug testing programs are opposed by prominent organizations such as the National Education Association, the Association for Addiction Professionals, the American Public Health Association, the American Academy of Pediatrics, the National Association of Social Workers and the National Council on Alcoholism and Drug Dependence.
Reid T. Murdoch, Esq., serves on the board of directors for Students for Sensible Drug Policy. Mr. Murdoch is currently doing research in comparative juvenile justice on a Fulbright grant to Slovenia. He previously served on the editorial board for the Michigan Journal of Race and Law and is a current member of the NLG Drug Policy Committee.
Suggested citation: Reid T. Murdoch, What the Eighth Circuit Court Decision Against Blanket Drug Testing Means for Students , JURIST - Professional Commentary, Jan. 11, 2016, http://jurist.org/hotline/2017/01/Reid-Murdoch-drug-testing-of-college-students.php
This article was prepared for publication by Krista Grobelny, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at