Pubdate: Mar 2000
Source: American School Board Journal (US)
Contact:  Benjamin Dowling-Sendor
Note: Benjamin Dowling-Sendor, an authority on school law, is an assistant
appellate defender of North Carolina in Durham.


Here's a two-question quiz: Should a school board take strong measures to
prevent employees and students from using or possessing drugs and alcohol on
campus and during off-campus, school-sponsored activities? Of course. That's
easy, a no-brainer. But as soon as boards turn to the next question -- what
kind of measures to take -- the complications arise. It's a question with no
simple answers, as shown by the decision of the 11th U.S. Circuit Court of
Appeals in a case from Savannah, Ga., Hearn v. Board of Public Education.

Here are the facts, as summarized in the majority and dissenting opinions in
the case: As of 1996, Sherry Hearn had taught in the Chatham County schools
for 27 years, and she had three years left before she could retire with
benefits. In 1994 she was named Teacher of the Year.

In 1992, the Chatham County Board of Public Education adopted a
zero-tolerance policy for drugs, alcohol, and weapons. The next year, the
board issued a drug-free workplace policy for employees. The policy provides
for drug testing of any employee if a supervisor's observations or other
objective facts "reasonably support a suspicion" that an employee might have
violated the policy. The policy requires that school officials test the
employee within two hours after the incident that prompted the reasonable
suspicion. Any employee who tests positive for drugs, alcohol, or other
controlled substances will be fired. Also, although school officials cannot
search an employee's property (including a vehicle) on campus without the
employee's consent, the board may discipline an employee who refuses to
consent to a search based on reasonable suspicion.

In April 1996, when Hearn was a high school teacher, school officials
arranged for a search of the entire school by a school security officer and
a police officer with a drug-sniffing dog. Hearn's car was parked in the
school parking lot; it was unlocked and a window was down. The dog "alerted"
at Hearn's car. When the police officer let the dog enter the car through
the open window, the dog alerted at a closed ashtray. In the ashtray was a
partially burned, still-warm, hand-rolled cigarette that tested positive for
marijuana in a field test and in a later lab test. The officers found that
the car belonged to Hearn and reported their finding to Principal Linda
Herman. Hearn had been in class at all times that morning.

Herman questioned Hearn, who denied possessing or knowing about the
marijuana. One of the police officers warned Hearn of her rights and told
her she probably would be charged with possession of marijuana. Herman told
Hearn that the drug-free workplace policy required her to take a urinalysis
test within two hours. Hearn refused. Even after Herman gave her a letter
warning her of disciplinary action if she continued to refuse, Hearn still

Several hours later, Hearn spoke to her lawyer, who advised her to take a
drug test. She was tested the next day, and the results were negative.
(According to the dissenting opinion, urinalysis can detect the active
ingredients in marijuana in the body for up to 30 days for casual users and
for up to a year in chronic users; the body does not rid itself of these
ingredients in a matter of just a few hours.) Despite the negative results,
Superintendent Patrick Russo suspended Hearn and recommended that the board
fire her for insubordination and for "other good and sufficient cause"
because of her refusal to take a drug test within two hours. The school
board accepted the superintendent's advice and fired Hearn. Hearn appealed
to the State Board of Education, which affirmed the local board's decision.

The teacher sues

Hearn sued the school board in Federal District Court, claiming that the
decision to fire her violated her right under the Fourth Amendment to the
U.S. Constitution to be free of unreasonable searches and seizures and her
right under the Fifth Amendment against self-incrimination. After the judge
dismissed her suit without a trial, Hearn appealed to the 11th Circuit.

By a 2-1 vote, the 11th Circuit affirmed the lower court's ruling and the
school board's decision to fire Hearn. Senior Judge James C. Hill wrote the
majority decision. As Judge Hill observed, the school board fired Hearn for
insubordination for refusing to take the drug test within two hours.
However, Hearn contended that she had no duty to take the drug test because
the search of her car was illegal under the drug-free workplace policy and
the Fourth Amendment and, therefore, school officials' suspicion that Hearn
had violated the policy by possessing marijuana was not "reasonable."
Specifically, Hearn argued that the search of her car was illegal under the
policy because she had not consented to the search and because the police
and school security officers had not obtained a search warrant.

Judge Hill concluded that the policy provision prohibiting school employees
from searching other employees' property did not apply because a county
deputy -- not the school security officer -- conducted the sweep search of
the school. The campus officer entered the car and found the cigarette, but
Hill reasoned that the entire search of the school was a law enforcement
operation, not a campus security operation. Although the policy was binding
on searches conducted by school employees (including campus security
officers), it was not binding on searches conducted by law enforcement

Hill also concluded that the search of Hearn's car was lawful under the
Fourth Amendment because the dog's alert gave county and campus officers
reasonable suspicion, and even probable cause, to believe that a search of
the car would find drugs. As Hill pointed out, the Fourth Amendment permits
a law enforcement officer to search a car, without a warrant, if the officer
has probable cause to believe the car contains evidence of a crime.

Since the search of the car gave Principal Herman reasonable suspicion that
Hearn had used marijuana, Hill wrote, the policy gave Herman authority to
direct Hearn to take a drug test within two hours of the seizure of the
cigarette. The school board then had power to discipline -- even to fire --
Hearn for refusing to take the test within two hours, even though the test
the next day was negative.

Judge Hill also rejected Hearn's argument that her termination violated her
Fifth Amendment right against self-incrimination. Hearn contended that her
initial refusal to take the test was protected by the Fifth Amendment right
against self-incrimination, her right to remain silent. However, Hill
observed, long-standing U.S. Supreme Court precedent holds that the
production of body fluids for testing (such as urinalysis) is not a form of
communication and, therefore, that the compelled production of body fluids
for testing does not violate the Fifth Amendment.

One judge dissents

Judge Wilkie D. Ferguson Jr. wrote a spirited dissent. According to
Ferguson, the school board violated the drug-free workplace policy by
searching Hearn's car without her consent. As a result of that violation, he
reasoned, Herman's suspicion that Hearn had been using marijuana was not
reasonable and, therefore, Herman had no authority to order Hearn to submit
to a drug test.

A key point in Judge Ferguson's analysis was his view that the search of the
school -- including the search of Hearn's car -- was conducted by the campus
security officer, with the county law enforcement officer acting as an
invited helper. It was the school officer who decided to send the dog
through the window into Hearn's car and the school officer who then entered
the car and found the cigarette. According to Judge Ferguson, Superintendent
Russo admitted during the board's termination hearing that the search of
Hearn's car without her consent violated the policy.

Judge Ferguson said the board made new legal arguments in federal court,
arguments not made in the board hearing: that the dog's alert outside the
car was enough by itself to give Herman reasonable suspicion to order the
drug test, and that no warrant was needed because a law enforcement officer
was present, However, both Herman and Russo admitted during the termination
hearing that Herman's reasonable suspicion was based solely on the discovery
of the cigarette in the car. Judge Ferguson also stated that the county
officer's authority to search without a warrant was not relevant, since the
campus officer directed the whole operation. Indeed, it was the campus
officer, not the county officer, who searched the inside of the car without
a warrant.

In Judge Ferguson's eyes, this dispute was, at heart, a contract dispute:
The search of Hearn's car violated Hearn's contract with the school board by
violating her rights under the drug-free workplace policy. As a matter of
standard contract law, the board's violation of Hearn's rights released her
from her contractual obligation to submit to a drug test.

A difficult decision

To me, this is a tough case to decide. In the end, I side with the board,
but just barely. It seems to me the campus officer violated Hearn's rights
under the policy by searching inside her car without her consent. However,
the alert by the dog outside the car was not, as a legal matter, a "search."
And the external alert was reliable enough to give Herman grounds to direct
Hearn to take a drug test. That is, it gave Herman enough information to
give her "reasonable suspicion."

Even though Herman and Russo testified at the board hearing that Herman
relied on the discovery of the cigarette inside the car, not on the external
alert by the dog, in asking Hearn to take a drug test, the law generally
resorts to objective criteria -- not to a person's actual reasons for
acting. For example, in this case, the dog's alert made Herman's suspicion
objectively reasonable, even though the alert was not the actual reason for
her suspicion.

The board might have the legal upper hand in this case, but I am concerned
about its overly clever use of the policy and the county officer's presence
to undermine Hearn's privacy rights under the policy.

Don't get me wrong; I support reasonable efforts by school districts around
the nation to combat drug use by staff and students. But I believe the board
sent two messages here, one good and the other bad. The good one is zero
tolerance for drugs. The bad one is that the ends justify the means, that
it's OK to cut contractual corners and undermine a teacher's expectation of
privacy in order to fight the war on drugs.

The board spoke clearly about zero tolerance, but it also fired an honored
teacher three years from retirement, a teacher who quite possibly did not
put the cigarette in her car or even know about it, a teacher who tested
negative the next day. Hearn made a diplomatic mistake by standing on what
she thought were her legal rights and refusing to take a drug test within
two hours. But termination seems to be an excessive, albeit lawful, response
in these circumstances.

Benjamin Dowling-Sendor, an authority on school law, is an assistant
appellate defender of North Carolina in Durham.
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