By Logan Dwyer, ACLR Featured Blogger
In Scott v. AFSCME, Florida Governor Rick Scott is asking the Supreme Court to clarify how two separate parts of Fourth Amendment jurisprudence interact. First, the “special needs” doctrine authorizes some searches without a warrant, probable cause, or individualized suspicion if the search passes a balancing test. There is also the more common exception to the warrant requirement carved out for consent: if a suspect consents to a search, it is generally allowed under the Fourth Amendment. The question in Scott is how consent affects special needs searches—does it merely weigh in favor of the government’s side of the balancing test, or does it authorize searches that would otherwise be unreasonable under the special needs test? This post, will examine the origins of both these doctrines and argue that consenting to an otherwise unreasonable search cures that search of any Fourth Amendment defect. Therefore, if the Court decides to hear Scott, it should keep the consent and special needs exceptions separate, while clarifying the high bar to qualify for either.
At issue in Scott is the Governor’s Executive Order 11–58, (the “Order”) issued March 22, 2011, which required all state agencies under the Governor’s control to “provide for pre-employment drug testing for all prospective hires and for random drug testing of all employees within each agency.” As the Eleventh Circuit noted, the Order applies to around 85,000 current state employees. In his petition for certiorari, Governor Scott reiterates the problems the Order was supposed to correct, including “lost productivity . . . harm[ing] the financial interests of every taxpayer” and “the risk to public safety . . . [when] state employees use drugs.” The Order is a significant expansion of Florida’s previous regime, which applied only to employees in “safety sensitive position[s]” and did not provide for random testing.
Implementation of the Order was stalled by litigation, and Florida’s Department of Corrections (DOC) was the only agency to adopt suspicionless drug tests of employees. Under DOC regulations, the procedures are straightforward: if an employee is randomly selected for testing, he or she is given a consent form to sign along with twenty-four hours to report to a designated collection site. Employees who fail the test may be “subject to disciplinary action,” which “include[s] dismissal for refusal to submit to testing.”
Shortly after the Order was announced, the American Federation of State, County and Municipal Employees sued to enjoin its enforcement. The District Court granted summary judgment in the Union’s favor and invalidated the entire Order. The Court of Appeals agreed that the State had not met its burden of proof. It held, however, that the District Court’s injunction was too broad and remanded for development of the record, reasoning that some classes of employees might be constitutionally required to undergo suspicionless drug testing.
Both the Eleventh Circuit and the District Court analyzed Executive Order 11–58 under the special needs doctrine. Unlike the criminal context, in which searches are reasonable if justified by probable cause (or a warrant), an administrative search is reasonable when backed by individualized suspicion of wrongdoing. If an administrative search serves “a special need, beyond the normal need for law enforcement,” then the search is reasonable provided the government interests outweigh the individual’s privacy interest and the character of the intrusion. The tests challenged in Scott fit into the special needs exception because they are supposed to further safety objectives as opposed to law enforcement, as evidenced by the fact that a positive test result cannot be used in prosecutions against the employee.
The two foundational cases for the special needs exception are Skinner v. Railway Labor Executives’ Association and National Treasury Employees Union v. Von Raab. Skinner held that the Federal Railroad Administration’s random drug testing of railroad employees involved in accidents was reasonable. The government’s interest in maintaining a safe railroad was high, especially in light of the number and severity of recent accidents. The employee’s privacy interests, in contrast, were reduced because they had already submitted to pervasive regulation of their activities by being railroad workers. Additionally, the Court held the privacy intrusion caused by testing blood, breath, or urine samples was minimal.
Von Raab struck down part of a testing program established by the United States Custom Service. The testing regime at issue required random drug tests for three classes of employees: drug interdiction agents, weapons-carrying agents, and all employees who handled classified information. The Court held that the government interest in the “physical fitness . . . and judgment” of the first two classes of employee justified intruding upon their privacy. As for the third, the Court remanded for further findings. While the government interest in preventing the leak of confidential information was compelling, the Court found that the program swept too broadly. Indeed, the Customs Service’s plan covered “accountants,” “[all] Co-op Students,” and “Mail Clerk[s and] Assistant[s].” The Court therefore remanded to establish “whether the [third class of employees] emcompasse[d] only those Customs employees likely to gain access to sensitive information.
Most recently, the Court struck down a Georgia statute requiring drug tests of all candidates for a handful of public offices in Chandler v. Miller on the basis the program was ineffective and the government interest at stake were not significant enough. In the first place, the challenged plan allowed candidates to self-schedule tests, meaning that the purpose of deterring drug use could be completely avoided. The Court also held that the state’s purported interest—protecting the “judgment and integrity” of state officials while safeguarding their “discharge of public functions”—did not justify a departure from the usual rigors of the Fourth Amendment. As further support for its holding, the Court noted that, unlike the agents in Von Raab or the railroad employees in Skinner, the officials in Chandler were not involved in “high-risk, safety-sensitive tasks.”
Against this background, the Eleventh Circuit correctly held that Governor Scott’s Order could not survive under the special needs exception. It may be the case that the privacy interests of state employees have been diminished by Florida transparency laws requiring disclosure of both public employee financial information and documents produced by public employees. Even if this were the case, however, the Order requires the pre-employment testing of applicants who are not yet covered by those laws and who therefore retain their traditional privacy rights. In addition to those applicants, the Order also covers around 85,000 current employees. While this number probably includes some employees in high-risk, safety-sensitive positions like the railroad workers in Skinner, it probably includes some whose jobs are closer to the mail clerks and assistants in Von Raab. While these are factual questions that should not be resolved through guesswork, it is certain that the Order did not include any job-specific justification for the randomized tests. Without these justifications, the Order is like the regime in Von Raab: partially justified but too broad to completely survive review.
Perhaps sensing that the Order is unlikely to survive under the special needs test, Governor Scott also argues that requiring employees to sign consent waivers makes random drug testing constitutionally permissible. It was established as early as 1940 that consenting to a search obviated the need for a warrant, and the Supreme Court later set out the test for consent in Schenckloth v. Bustamonte. Under that case, courts examine whether, under all the circumstances, consent was freely and voluntarily given and free of express or implied coercion. While it is not necessary for a suspect to know of his or her right to refuse to consent, such knowledge does weigh in favor of finding valid consent.
When faced with the question of consent in the context of the special needs exception, the Eleventh Circuit joined the Seventh, Eighth and D.C. Circuits in holding that consent was a factor to be considered in the special needs balancing test, as opposed to an independent ground to establish Fourth Amendment reasonableness. These Courts reason that the privacy interests side of the balancing test incorporates employee consent, using for support Skinner’s holding that railroad workers have reduced privacy interests owing to the amount of government regulation to which they were subject. Essentially, the government was already intruding upon the railroad worker’s lives, so their expectations of privacy were less than the average citizen. Furthermore, the Eleventh Circuit read Veronia School Dist. v. Acton, a case involving suspicionless drug tests in schools, in support of its theory consent is merely a factor in the special needs balancing test. Viewing the random drug tests as a condition of employment, the Eleventh Circuit therefore held that the special needs balancing test already accounted for consent.
There are two problems with this holding, one practical and one at a more abstract and doctrinal. On the facts of Scott before the Eleventh Circuit, the court’s conclusion that consent was incorporated in the special needs test seems to have been influenced by its holding that the DOC regulations did not allow for authentic consent. The court correctly noted that “[e]mployees who must submit to a drug test or be fired are hardly acting voluntarily.” The court could have, and should have, disposed of the Governor’s argument on these grounds alone; the consent exception is simply inapplicable where there has been no consent. Instead, however, the court continued to the doctrinal portion of its holding, outlined above. Ideally, the Eleventh Circuit should have restricted its holding to the simplest method of disposing of the case.
At the doctrinal level, the consent exception is independent of the special needs test for two reasons. First, the consent exception, when its requirements are met, renders otherwise unreasonable searches reasonable. Just as consenting enables a warrantless search, consenting to a search that fails the special needs balancing test should enable that search as well——there is no principled distinction between the two cases.
Second, the Eleventh Circuit incorrectly read Vernonia as supporting its position. The regime challenged in Vernonia required all students involved in extracurricular athletics to submit to random drug testing. Consent forms were issued to the parents of all eligible students. The parents in Vernonia refused to consent to testing and challenged the regime. The Supreme Court ultimately found the tests constitutional, but it did so without considering the weight of student consent.  The Court did hold that the student-athletes’ decision to participate in after-school sports reduced their privacy interests, but it did so without mentioning any decision by the students to submit to drug testing.
While the Eleventh Circuit incorrectly merged the consent exception into the special needs exception, its larger holding that the DOC procedure does not produce valid consent was nevertheless correct. For that reason, the Supreme Court may decide not to hear Scott at all, preferring to wait for a case involving genuine consent to an otherwise unreasonable special needs search or seizure. If the Court grants certiorari, it should it should clarify the independent nature of the consent exception.