Mandatory Student Drug Testing Ruled Unconstitutional

Micah E. Kamrass, Manley Burke, mkamrass@manleyburle.com

A Federal Court of Appeals has ruled public colleges and universities that impose mandatory drug testing on all students are in violation of their students’ Fourth Amendment Rights. In a 9-2 ruling, the Eighth Circuit Court of Appeals, sitting en banc, overturned a prior decision by a three-judge panel from the same Court, which had upheld the constitutionality of mandatory drug testing for all students.

The full Court’s decision, handed down on December 22, 2016 in Kittle-Aikeley v. Strong,¹ reviewed the drug testing policies of the State Technical College of Missouri (which was previously known as Linn State). The college essentially had two policies. The first was a mandatory drug test for all new students beginning in 2011. These tests were administered within the first ten days of the semester, and all students who failed the screening were placed on disciplinary probation, required to complete a drug-awareness course, required to submit to an additional drug test 45 days later, and also required to be subject to random future drug-testing.² “Students who refused to take the mandatory test were not allowed to remain enrolled with the college unless they received a waiver from the Office of the President.³  The second testing program was a discretionary drug test for “students who enroll in the [programs like the] college’s Heavy Equipment Operations program.”⁴

In reviewing both sets of drug testing programs, the Court held that “[w]hile the Constitution generally prohibits searches conducted without individualized suspicion, the Supreme Court has recognized exceptions to the general rule in certain well-defined circumstances.”⁵ One of these “special needs exceptions” is public safety.⁶ Linn State argued that its mandatory drug-testing policy was designed “to provide a safe, healthy, and productive environment for everyone who learns and works” at the college, which the college argued satisfied the public safety exception.⁷

The Court did not accept this rationale, writing that while the college’s goal is “laudable,” it is not sufficient to subject all students to warrantless searches in the form of a drug test.⁸ However, the Court also held that Linn State may require drug tests for “students enrolled in safety-sensitive programs”⁹ such as the Heavy Equipment Operations Program, because this satisfied the public safety exception.

This case may become more important in the fraternity and sorority context. As we reported a year ago in the January 2016 edition of Fraternal Law¹⁰, universities such as the University of Alabama are beginning to institute drug-testing programs for members of fraternities and sororities. While some of these programs may be optional or used as punishment, many of the consequences of the implementation of these programs remain unclear. If this trend continues, it is very likely that these programs (at least at public institutions) will be challenged on Fourth Amendment grounds. This type of challenge would likely be resolved by whether or not a court views fraternity and sorority membership as a “public safety exception” to the Fourth Amendment.

1 Case Nos. 13-3264, 14-1145. For a copy of the full opinion, please see: http://media.ca8.uscourts.gov/opndir/16/12/133264P.pdf.

2 Id. at pp. 5-7.

3 Id. at 7.

4 Id. at 5.

5 Id. at 12.

6 Id. at 13-14.

7 Id. at 15-16.

8 Id. at 19.

9 Id. at 21.

10 Callan, Sean. “Drug Testing for Alabama Football Fraternities.” Fraternal Law No. 140, Jan. 2016.