Is the new Arkansas law letting school districts drug-test teachers and applicants likely to survive a constitutional challenge?

Plain-English summary

Act 323 of 2019 authorized Arkansas public school district boards to adopt policies requiring drug screening before employment, random screening of current employees, or both. Representative Mary Bentley asked whether that law was constitutionally flawed. The Attorney General said it would likely be difficult to win a facial challenge to the Act under the Fourth Amendment. Arkansas presumes legislation constitutional until a court rules otherwise, and courts construe an act as constitutional when possible. The AG also quoted the Eighth Circuit's observation that the U.S. Supreme Court has been especially reluctant to invalidate statutes on their face under the Fourth Amendment.

That conclusion addressed the Act itself. A district's actual drug-screening policy would still be subject to Fourth Amendment scrutiny and likely scrutiny under Article 2, section 5 of the Arkansas Constitution. The opinion's footnote explains that drug testing by urine or blood sample is a search under the Fourth Amendment. The AG said no federal appellate court had conclusively answered whether districts could require teachers and other school employees to undergo testing without suspicion. She did not decide whether any particular district policy would be valid.

For a school board or employee, the practical distinction is whether the question concerns the legislature's grant of authority or a policy adopted by a district. The opinion gives a reason a challenge to the Act itself would be difficult. It leaves the legality of a district's chosen testing policy unresolved.

Currency note

This opinion was issued in 2019 and discusses Act 323 as it then stood. Check the current statute and later decisions before relying on its analysis of a proposed or existing policy.

Common questions

Q: Can an Arkansas school district screen job applicants for drugs under Act 323?
A: The Act authorized a district board to adopt a policy requiring pre-employment drug screening. The AG did not rule on the validity of any particular policy or compare applicants' privacy rights with current employees' rights.

Q: Can a district randomly test current teachers or other employees?
A: The Act also authorized a policy requiring random screening of current employees. The AG cautioned that any such policy would face constitutional scrutiny and said the federal appellate courts had not conclusively answered the question of testing teachers and other school employees without suspicion.

Q: Did the AG find Act 323 unconstitutional?
A: No. The AG said legislation is presumed constitutional until a court declares otherwise and that, as an executive officer, she was not situated to declare a statute unconstitutional. She concluded only that a facial challenge would likely be difficult to win.

Q: Does the Arkansas Constitution also limit school district drug testing?
A: Likely. The AG said a district policy would likely be reviewed under Article 2, section 5 of the Arkansas Constitution as well as the Fourth Amendment. Her footnote says the Arkansas Supreme Court typically interprets that state provision in the same manner as the Fourth Amendment.

Q: What does the opinion say a district should do before adopting a policy?
A: It warns districts that any policy they develop will be subject to Fourth Amendment scrutiny. It does not supply a model policy or decide which employees may be tested, when, or under what conditions.

Background and statutory framework

Act 323 defined a drug screen as a chemical test for the presence or absence of a drug in a person's blood, breath, or urine. It defined an employee as someone currently employed by a public prekindergarten through grade twelve school district. The law allowed the board to choose pre-employment screening, random screening of current employees, or both.

The AG identified the Fourth Amendment as the most likely basis for a facial challenge. Her footnote cited Chandler v. Miller and Skinner v. Railway Labor Executives' Ass'n for the rule that drug tests using urine or blood samples are searches. She cited Vernonia Sch. Dist. v. Acton for the Fourth Amendment's application to state and local governments and McDonald v. State for the Arkansas Supreme Court's usual reading of the state search-and-seizure provision. These authorities frame the question; the opinion does not apply them to a specific district policy.

Citations

• 2019 Ark. Acts No. 323
• U.S. Const. amend. IV
• Ark. Const. art. 2, § 5
• Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989)
• Chandler v. Miller, 520 U.S. 304 (1997)
• Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995)
• McDonald v. State, 354 Ark. 216, 119 S.W.3d 41 (2003)
• Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999)
• ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997)
• Jones v. State, 333 Ark. 208, 969 S.W.2d 618 (1998)
• Barrett v. Claycomb, 705 F.3d 315 (8th Cir. 2013)
• Warshak v. United States, 532 F.3d 521 (6th Cir. 2008) (en banc)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2019-038
August 29, 2019

The Honorable Mary Bentley
State Representative
142 Shady Lane
Perryville, AR 72126-8103

Dear Representative Bentley:

This is in response to your request for my opinion concerning Act 323 of 2019, entitled "An Act to Allow a School District Board of Directors to Implement a Drug Screening Requirement for an Applicant or Current Employee of a Public School District." You ask:

> Is Act 323 constitutionally flawed or suspect in any fashion or manner?

RESPONSE

Act 323 of 2019 authorizes the board of directors of a public school district to implement a policy requiring "[p]re-employment drug screening" and/or "[r]andom drug screening of current employees."

The Act is presumed constitutional unless judicially declared otherwise. While a court is, therefore, the appropriate venue to pose a constitutional challenge to this legislation, I will review the basic guiding legal principles.

DISCUSSION

The Fourth Amendment to the United States Constitution is the most likely basis for a facial challenge to Act 323. But if it is possible to construe the Act as constitutional, a court will do so. The Arkansas Supreme Court has always held that before it will strike down an act of the legislature as unconstitutional, it must clearly appear that the act is at variance with the Constitution. Additionally, as the Eighth U.S. Circuit Court of Appeals has observed, "[t]he [United States] Supreme Court has been especially reluctant to invalidate statutes on their face under the Fourth Amendment."

These observations lead me to conclude that it will likely be difficult to prevail on a facial challenge to Act 323. Any school district wishing to develop a drug-screening policy should nevertheless be aware that any such policy will undoubtedly be subject to scrutiny under the Fourth Amendment (and, likely, under Article 2, section 5 of the Arkansas Constitution as well). According to my research, no federal appellate court has conclusively answered the question whether school districts can require teachers and other school employees to submit to so-called "suspicionless" drug testing.

Sincerely,

LESLIE RUTLEDGE
Attorney General

1 The Act defines “drug screening” as “a chemical test administered for the purpose of determining the presence or absence of a drug in an individual's blood, breath, or urine.” 2019 Ark. Acts No. 323. “Employee” means “an individual who is currently employed at a public prekindergarten through grade twelve (preK-12) school district.” Id.

2 See Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997) (both holding that legislation is presumed constitutional and that a challenger to the legislation bears the burden of proving otherwise).

3 As a member of the executive branch of government, and not the judicial branch, I am not situated to declare a statute unconstitutional.

4 Drug tests based on urinalysis or blood samples are considered searches and are subject to the Fourth Amendment. See Chandler v. Miller, 520 U.S. 304, 313 (1997); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617 (1989). That amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated....” U.S. Const. amend IV. The Fourteenth Amendment to the United States Constitution makes the Fourth Amendment applicable to state and local governments. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 652 (1995). Article 2, section 5 of the Arkansas Constitution also limits the government's power of search and seizure. The Arkansas Supreme Court typically interprets Article 2, section 5 in the same manner as the Fourth Amendment to the United States Constitution. McDonald v. State, 354 Ark. 216, 221, 119 S.W.3d 41, 44 (2003).

5 Jones v. State, 333 Ark. 208, 969 S.W.2d 618 (1998).

6 Barrett v. Claycomb, 705 F.3d 315, 324 (8th Cir. 2013) (quoting Warshak v. United States, 532 F.3d 521, 529 (6th Cir. 2008) (en banc)).

7 See Richard Fossey, J.D., Ed.D. & Robert C. Cloud, Ed.D., The Eleventh Circuit's Friedenberg v. School Board of Palm Beach County and Drug Testing School District Employees: An Analysis of Federal Case Law, 363 ED. LAW REP. 909 (2019).