Barrett v. Claycomb (976 F. Supp. 2d 1104, 2013)

ORDER

NANETTE K. LAUGHREY, District Judge.

In September 2011, Defendant Donald Claycomb, President of Linn State Technical College (“Linn State”), implemented a policy requiring all new Linn State students to be drug tested using urinalysis. Plaintiffs, representing a class of current and future students of the college, immediately filed suit against the Defendants in their official capacities seeking a declaratory judgment that this mandatory, suspicionless drug-testing violated their constitutional rights. Plaintiffs moved for a preliminary injunction, which this Court granted after an evidentiary hearing. Defendants filed an interlocutory appeal and the Eighth Circuit vacated the preliminary injunction, finding that Defendants had identified a special need sufficient to justify the suspicionless drug testing of some Linn State students. Specifically, the court held that the testing may be reasonable based on the “interest in deterring drug use among students engaged in programs posing significant safety risks to others.” Barrett v. Claycomb, 705 F.3d 315, 322 (8th Cir.2013). Because Defendants’ policy was constitutional as to some Linn State students who were enrolled in safety sensitive training programs, such as the Aviation Maintenance program, the Eighth Circuit rejected Plaintiffs’ facial challenge. Plaintiffs thereafter clarified their claims in this Court to assert an as-applied challenge. On July 1, 2012, the Court held a second evidentiary hearing to address Plaintiffs’ request for a permanent injunction on both their applied and facial challenges. Given the Eight Circuit’s previous ruling on Plaintiffs’ facial challenge, the primary issue to be resolved now is whether Defendants’ suspicionless drug-testing policy, as applied, violates the Fourth Amendment rights of any Linn State student.

I. The Fourth Amendment and Special Governmental Needs

The Fourth Amendment protects the right of Americans to be free from unreasonable searches and seizures. It is well-established that a urine drug test constitutes a search under the Fourth Amendment. E.g., Chandler v. Miller, 520 U.S. 305, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997); Skinner v. Railway Labor Execs.’ Ass’n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Hess v. Ables, 714 F.3d 1048, 1052 (8th Cir.2013). Ordinarily, a search is unreasonable if it is conducted without individualized suspicion. Chandler, 520 U.S. at 308, 313, 117 S.Ct. 1295; Barrett, 705 F.3d at 321. But there is a “closely guarded category of constitutionally permissible suspicionless searches.” Chandler, 520 U.S. at 309, 117 S.Ct. 1295. Of particular relevance here, a suspicion-less search may be reasonable if it “serves special governmental needs, beyond the normal need for law enforcement.” Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). If such a special need exists, a reviewing court must balance the weight of this interest against the privacy expectations intruded on by the search to determine whether the search is reasonable in the particular context. Id. at 665-66, 109 S.Ct. 1384; Barrett, 705 F.3d at 322.

Because the constitutionality of a suspicionless search is a “context-specific inquiry,” Chandler, 520 U.S. at 314, 117 S.Ct. 1295, the Court must make a program-by-program assessment of the activities engaged in by the students enrolled at Linn State. See Am. Fed’n of State, Cnty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 866-67 (11th Cir.2013) (“[T]he test we apply is a job-category-by-category balancing of the individual’s privacy expectations against the Government’s interests, ----” (quotation omitted)); Nat’l Fed’n of Fed. Emps.-IAM v. Vilsack, 681 F.3d 483, 489, 492 (D.C.Cir.2012) (“[T]he Supreme Court has differentiated between job categories designated for testing, rather than conducting the balancing test more broadly....”). And the Court must evaluate each program offered at Linn State to ensure that the category of students subject to the drug-testing policy has not been defined more broadly than necessary to meet the policy’s purposes. See Von Raab, 489 U.S. at 678, 109 S.Ct. 1384. With respect to each program, the Court must balance the special need asserted by Defendants against Plaintiffs’ reasonable privacy expectations to determine whether the search is reasonable. See id. at 665-66, 109 S.Ct. 1384; Barrett, 705 F.3d at 322. Three factors guide this analysis: “(1) ‘the nature of the privacy interest allegedly compromised by the drug testing’; (2) ‘the character of the intrusion imposed by the Policy’; and (3) ‘the nature and immediacy of the government’s concerns and the efficacy of the Policy in meeting them.’ ” Barrett, 705 F.3d at 322 (quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830, 832, 834, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)).

II. Evidentiary Issues

There is some dispute as to whether the evidence presented at the preliminary injunction hearing automatically became part of the record for the permanent injunction hearing. Due to the unique characteristics of a motion for a preliminary injunction, which by its nature often requires an expeditious hearing and decision, evidence that would ordinarily be inadmissible, such as affidavits, may be received at a preliminary injunction hearing. See Wounded Knee Legal Def./Offense Comm. v. Fed. Bureau of Investigation, 507 F.2d 1281, 1286-87 (8th Cir.1974); see also Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir.1993). With respect to whether evidence received on a motion for a preliminary injunction also becomes part of the trial record, Federal Rule of Civil Procedure 65(a)(2) provides that “evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial.” (emphasis added).

At the preliminary injunction hearing, Defendants submitted a number of affidavits from various Linn State faculty members. On Plaintiffs’ motions in limine, these affidavits were excluded from the trial record as inadmissible hearsay. At trial, however, the parties stipulated to the admission of eight of these affidavits. Consequently, only those affidavits that were admitted pursuant to the stipulation will be considered by the Court. Pursuant to Rule 65(a)(2), the other evidence offered at the preliminary injunction hearing will be considered part of the trial record to the extent that it is admissible under the Federal Rules of Evidence.

III. Burden of Proof

Once Plaintiffs show that a suspicionless search has occurred, there is a presumption that it is unconstitutional. Scott, 717 F.3d at 866-67. The burden of production then shifts to the government to show either consent or a recognized exception to the Fourth Amendment. Der v. Connolly, 666 F.3d 1120, 1127-29 (8th Cir.2012). While the “risk of non-persuasion must remain squarely on the plaintiff,” id. at 1128 (quotation omitted), if the government does not produce evidence to support a recognized exception to the Fourth Amendment, the presumption prevails.

Applying this rule in cases involving suspicionless drug testing, the Eleventh Circuit has held that such a search cannot be upheld where the testing proponent fails to present evidence to support the special need that justifies the search. Scott, 717 F.3d at 880-82 (citing, inter alia, Der, 666 F.3d at 1127-28; Valance v. Wisel, 110 F.3d 1269, 1279 (7th Cir.1997)); Lebron v. Sec’y, Fla. Dep’t of Children & Families, 710 F.3d 1202, 1211 n. 6, 1213 (11th Cir.2013). As discussed at length by the court in Scott, requiring this threshold showing has considerable support in the Supreme Court’s precedent on suspicionless searches. See Scott, 717 F.3d at 881; see also Chandler, 520 U.S. at 318-19, 117 S.Ct. 1295 (striking down a suspicionless drug-testing statute where the state “failed to show, in justification of [its drug-testing statute], a special need” (emphasis added)); Von Raab, 489 U.S. at 677, 109 S.Ct. 1384 (finding that “the Government has demonstrated that its compelling interests ... outweigh the privacy expectations of employees.” (emphasis added)); Lebron, 710 F.3d at 1211 n. 6 (“[T]he Supreme Court has unequivocally stated that it is the state which must show a substantial special need to justify its drug testing.”).

Similarly, in Doe ex rel. Doe v. Little Rock Sch. Dist., 380 F.3d 349, 356 (8th Cir.2004), the Eighth Circuit held that a suspicionless search was unreasonable where the defendant school district “failed to demonstrate the existence of a need sufficient to justify” the search. Little Rock Sch. Dist., 380 F.3d at 356-57 (emphasis added). In reaching this conclusion, the court rejected the school district’s “generalized concerns about the existence of weapons and drugs in its schools,” because there was “nothing in the record regarding the magnitude of any problems with weapons or drugs that it has actually experienced.” Id. at 356. The court concluded that the suspicionless search at issue could not be upheld based on an alleged special need that was substantiated by nothing more than “a mere apprehension” or “assertion.” Id. at 356-57; accord Scott, 717 F.3d at 877.

Defendants thus bear the burden of producing evidence to show that their case falls within the limited circumstances in which suspicionless searches are permissible based on a concrete safety concern. See Der, 666 F.3d at 1128-29; see also Chandler, 520 U.S. at 308, 117 S.Ct. 1295; Scott, 717 F.3d at 880. Only if Defendants have produced evidence of a special need with respect to a particular program is it necessary to balance Plaintiffs’ reasonable privacy expectations against Defendants’ interests to determine the reasonableness of the search. See Scott, 717 F.3d at 880; Lebron, 710 F.3d at 1207; see also New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (Blackmun, J., concurring).

IV. Findings of Fact

The facts in this case are largely undisputed except for the central question of which Linn State programs pose a substantial risk of harm to others.

Founded in 1961, Linn State is a public, two-year college located in Linn, Missouri. Linn State was established and continues to operate under Missouri statutes. It is governed by a Board of Regents, which is comprised of members appointed by the Governor of Missouri and confirmed by the Missouri Senate. The Board of Regents is responsible for establishing the policies of Linn State.

Defendants Toni R. Schwartz, John Klebba, Diane Benetz, Mark J. Collom, Erick V. Kern, and J. Scott Christianson are members of Linn State’s Board of Regents. An additional defendant, designated simply as “Member, Linn State Technical College Board of Regents,” refers to the yet to be appointed replacement for Defendant Kenneth L. Miller, who died during the course of this litigation. Defendant Donald M. Claycomb is the President of Linn State and is responsible for implementing the policies established by the Board of Regents.

Linn State offers at least twenty-eight distinct academic programs for the roughly 1100 to 1200 students who attend the institution. The academic programs offered at Linn State are divided into five, general categories: mechanical, electrical, civil, computer, and general education. Each of these programs is further divided into more specialized areas. As a technical school, many of the programs offered at Linn State involve a significant amount of hands-on training and manual exercises.

Over the course of Linn State’s fifty-year history, there has never been an accident on campus that resulted in death or substantial bodily injury. There have been accidents that have required some medical attention, but there is no evidence that drug use caused or contributed to any accident in Linn State’s history.

Linn State does not have any greater prevalence of drug use among its students than any other college. However, on June 17, 2011, Linn State’s Board of Regents adopted a drug screening policy, which requires nearly every incoming Linn State student to participate in drug testing by urinalysis in accordance with procedures prescribed by President Claycomb. The June 17, 2011 testing policy also requires drug testing of students returning to Linn State after an absence of six months or more. The drug testing program is mandatory and suspicionless.

The stated purpose of the June 17, 2011 testing policy provides:

The mission of [Linn State] is to prepare students for profitable employment and a life of learning. Drug screening is becoming an increasingly important part of the world of work. It is also believed it will better provide a safe, healthy, and productive environment for everyone who learns and works at [Linn State] by detecting, preventing, and deterring drug use and abuse among students.

The educational purpose of the drug-testing policy, namely preparing students for employment in fields in which drug testing might be required, is the primary reason the policy was implemented. In addition, the Board of Regents adopted the following six “Program Goals,” which set forth the other purposes of this policy: 1.) assisting students in making safe and healthier choices; 2.) supporting students who are drug free; 3.) improving the learning environment; 4.) decreasing the number of students placed on academic probation and academic suspension; 5.) improving Linn State’s retention rate; and 6.) improving Linn State’s graduation rate.

The June 17, 2011 testing policy does not apply to Linn State faculty or staff members. Linn State’s rules and procedures do permit drug testing employees prior to employment, after any accident, and upon reasonable suspicion, but Linn State does not currently drug test any faculty or staff members who participate in the College’s training programs. The policy statement regarding the drug testing of Linn State employees states that the College’s “faculty and employees are entrusted to safely operate the vehicles, machinery and equipment used to train our students and operate our institution.” Nonetheless, Linn State chooses not to test faculty and staff members in the manner provided for in its rules and procedures.

On September 6, 2011, President Clay-comb signed a series of procedures by which Linn State would conduct the drug testing of its students. These written procedures provided that students could petition Linn State’s President to be excused from participation in the drug-testing program. Linn State began drug testing students pursuant to this policy on September 7, 2011, one day after the above procedures were adopted.

Linn State’s drug-testing policy is not intended to be punitive and is not used for law enforcement purposes. Pursuant to Linn State’s drug-testing policy, a student who initially tests positive for any of the drugs Linn State tests is given forty-five days to be retested and is not excluded from class during this period. If a retest is negative, the student is permitted to remain enrolled at Linn State, on disciplinary probation and subject to a random drug screen later in the year. Student-initiated or administrative withdrawal from Linn State is required if the retest returns any positive result or if the student refuses the retest.

Prior to the adoption of the challenged testing policy, students enrolled in Linn State’s Heavy Equipment Operations program were subject to suspicionless and random drug testing. Students in this program who failed a drug test were permitted to reenroll in other programs offered at Linn State. The drug testing of Heavy Equipment Operations students has continued unabated during the course of this lawsuit. Students in this program are not subject to the drug-testing policy at issue in this case.

Prior to the adoption of the challenged testing policy, some Linn State students were subject to drug testing in connection with voluntary or required off-campus internships in their field of study. This testing is not at issue in this case and has continued unabated during the course of this lawsuit.

Prior to the adoption of the , challenged testing policy, Linn State students seeking a Commercial Driver’s License were subject to federally mandated suspicionless and random drug testing. This testing is not at issue in this case and has continued unabated during the course of this lawsuit.

Prior to the adoption of the challenged testing policy, Linn State’s rules and regulations permitted suspicion-based drug testing of students as well as drug testing of students involved in accidents on Linn State’s property or with a Linn State vehicle. This testing is not at issue in this case and Linn State’s ability to require testing in these circumstances has continued unabated during the course of this lawsuit. From 2007-2012, only one Linn State student was drug tested following an accident, and this student did not test positive.

Linn State is an arm of the State of Missouri and all Defendants acted under color of state law in developing, approving, and implementing the challenged drug-testing policy.

V. Conclusions of Law

A. Parameters of the special need/safety-exception to the Fourth Amendment

The Eighth Circuit found that Linn State’s drug-testing policy was constitutional as to some students because the University had an interest in “deterring drug use among students in programs posing significant safety risk to others.” Barrett, 705 F.3d at 322. To reach that conclusion, the Eighth Circuit drew an analogy to the safety interest identified in Skinner and Von Raab. See id. at 322. This has three important implications. First, to be analogous to the safety risks at issue in those cases, the activities performed by students at Linn State must pose such a threat that “even a momentary lapse of attention can have disastrous consequences,” Skinner, 489 U.S. at 628, 109 S.Ct. 1402. This is the language relied on by the Eighth Circuit. Barrett, 705 F.3d at 322. As the D.C. Circuit has explained:

• The public safety rationale adopted in Von Raab and Skinner focused on the immediacy of the threat. The point was that a single slip-up by a gun-carrying agent or a train engineer may have irremediable consequences; the employee himself will have no chance to recognize and rectify his mistake, nor will other government personnel have an opportunity to intervene before the harm occurs.

Harmon v. Thornburgh, 878 F.2d 484, 491 (D.C.Cir.1989); accord Am. Fed’n of Gov’t Emps. v. Cheney, No. C-88-3823-DLJ, 1992 WL 403388, at *4 (N.D.Cal. Aug. 14, 1992); Burka v. N.Y.C. Transit Auth., 739 F.Supp. 814, 821 (S.D.N.Y.), decision supplemented, 751 F.Supp. 441 (S.D.N.Y.1990).

Second, to override the ordinary requirements of the Fourth Amendment, the safety risks at issue must be of a unique or unusual degree. Cf. Von Raab, 489 U.S. at 674, 109 S.Ct. 1384 (finding that “the almost unique mission” of the employees subject to the drug testing program presented “extraordinary safety and national security hazards”). Certainly, there are innumerable common, daily activities that, if performed under the influence of an illicit drug, could fairly be said to pose a significant safety risk to others— for instance driving a car. As a result, if any modicum of danger was deemed sufficient to justify drug testing, then there would be no principled reason why the government could not subject every person seeking or holding a driver’s license to suspicionless drug testing. But the Court is not aware of any authority that supports such an expansive reading of the safety exception and, in fact, courts have rejected drug testing policies that applied to persons who operated motor vehicles under ordinary driving conditions. See Nat’l Treasury Emps. Union v. Watkins, 722 F.Supp. 766, 769-70 (D.D.C.1989) (enjoining the drug testing of employees whose job duties included driving cars and vans based on the finding that “the safety risks involved with the motor vehicle operators carrying-out their duties are no greater than the normal risks associated with vehicle use by the general public.”); Nat’l Treasury Emps. Union v. Lyng, 706 F.Supp. 934, 947 (D.D.C.1988) (same). It is only by examining the character of the risk at issue that courts can establish “an outer limit on the nature of the safety threat that justifies random drug testing,” Krieg v. Seybold, 481 F.3d 512, 518 (7th Cir.2007). If suspicionless searches are to remain “particularized exceptions” to the Fourth Amendment, Chandler, 520 U.S. at 313, 117 S.Ct. 1295, the applicability of the safety exception must be limited to circumstances that present unique safety hazards.

Third, the safety risk must be to others, as opposed to the individual student performing the task. The Eighth Circuit in its opinion said: “the public has a valid interest in deterring drug use among students engaged in programs posing significant safety risks to others.” Barrett, 705 F.3d at 322 (emphasis added). Furthermore, all of the cases that have upheld suspicionless drug testing relied on the risk of harm to others, not the person being searched. The parties have not cited, and the Court’s independent research has not revealed, any case that upheld suspicionless drug testing based on a safety rationale absent a showing that the asserted safety concern applied to others, as opposed to just the individual who is subject to the testing. Accord Cheney, 1992 WL 403388, at *4 (“Every recent case on drug testing raising the safety nexus involved a testing program that threatened members of the public.”); see also Int’l Bhd. of Elec. Workers, Local 1215 v. Skinner, 913 F.2d 1454, 1462 (9th Cir.1990).

Consequently, to the extent that Defendants rely on the risk of harm to the individual students themselves, the Court declines to uphold the drug-testing policy based on such an unprecedented basis. Rather, the Court will focus, as the Eighth Circuit did, on whether a particular program poses a significant safety risk to others.

In addition, the Supreme Court has held that, to justify suspicionless drug testing based on a special need, “the proffered special need for drug testing must be substantial — important enough to override the individual’s acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment’s normal requirement of individualized suspicion.” Chandler, 520 U.S. at 318, 323, 117 S.Ct. 1295 (“[Wjhere ... public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged.”). Thus, in order to justify the search at issue in this case, the existence of the special need with respect to each program must be supported by more than a mere apprehension or assertion. See Little Rock Sch. Dist., 380 F.3d at 356-57; see also Lanier v. City of Woodburn, 518 F.3d 1147, 1150-51 (9th Cir.2008).

Requiring this showing is indispensable, as permitting suspicionless drug testing on the basis of a hypothetical or unsubstantiated safety interest would encourage the bare recitation or post hoc assertion of illusory safety concerns in order to justify drug-testing policies that are in truth enacted to serve entirely different, unconstitutional purposes. Opening the door to expansive and widespread testing in this manner would significantly erode the protections of the Fourth Amendment, which the Supreme Court has “has consistently asserted” to be “of the very essence of constitutional liberty,” Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), and “basic in free society,” Camara v. Mun. Court of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

The risk of using illusory safety concerns to mask unconstitutional purposes is apparent in this case, as the evidence shows that the adoption of Linn State’s drug-testing policy was motivated predominantly by considerations other than the safety interest ultimately relied upon by Defendants in response to this litigation. The six “Program Goals” adopted by the Board of Regents do not even mention preventing accidents or injuries caused or contributed to by drug use, and instead focus on goals like improving retention and graduation rates. [Plaintiffs’ Exhibit 4]. Likewise, the minutes from an advisory committee meeting show that Dr. Clay-comb, in discussing the proposed drug-testing policy, told the committee “that parents want their kids to attend a school that enforces a drug free environment,” and that, “[tjhis alone could up the enrollment numbers.” [Plaintiffs’ Exhibit 5]. There is no indication in these minutes that any concern for reducing or preventing drug-related accidents was also discussed. Furthermore, based on the President of the Board of Regents’ testimony at trial, the primary purpose of the policy was educational in nature, namely preparing students for employment in fields in which drug screening might be required. This testimony is consistent with the other evidence in the trial record, including the minutes from the Board of Regents meeting at which the drug-testing policy was adopted and the testimony of Dr. Clay-comb and Dr. Pemberton. See [Plaintiffs’ Exhibit 4]; [Doc. # 92 at 21,116-17].

This is not to say that any of these other purposes are unimportant or invidious, but they do not provide a recognized justification for overriding the constitutional protections of the Fourth Amendment. Consequently, it is necessary to scrutinize in a meaningful way, government claims that safety concerns justify a suspicionless search, or else oblique references to safety may become a carte blanche for suspicion-less searches conducted for reasons that fall well beyond the limited, permissible exceptions to the Fourth Amendment.

Accordingly, only evidence of a substantial and concrete risk to others can justify the suspicionless search at issue in this case.

B. The nature of Plaintiffs’ privacy interest

It is well-settled that “the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable.” Skinner, 489 U.S. at 617, 109 S.Ct. 1402. Nonetheless, in some circumstances, individuals may have a diminished expectation of privacy with respect to the content of their urine. E.g., id. at 627, 109 S.Ct. 1402 (“[T]he expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees.”). Regarding the students at Linn State specifically, the Eighth Circuit found that “some college students that attend Linn State have a diminished expectation of privacy because they are seeking accreditation in heavily regulated industries and industries where drug testing, in practice, is the norm.” Barrett, 705 F.3d at 323. Consequently, where the evidence shows that students in a particular program are seeking accreditation in a heavily regulated industry or industries in which drug testing is the norm, the Court will take into account the diminished privacy expectations of these students. However, Defendants have not presented any other recognized basis for finding that Linn State students have limited privacy expectations. Accordingly, where there is little or no evidence suggesting that students in a given program are entering such a heavily regulated field, these students will be considered to have the full privacy expectations common to all adults, which are substantial. See Von Raab, 489 U.S. at 671, 109 S.Ct. 1384.

C. The character of the privacy intrusion

On appeal, the Eighth Circuit found that the manner in which Linn State’s drug testing is conducted is “relatively noninvasive.” Barrett, 705 F.3d at 323. This conclusion was based in part on the fact that the policy’s written procedures provide that “the testing will be conducted in accordance with federal drug-testing procedures outlined in 49 C.F.R. Part 40, which ‘significantly minimize the program’s intrusion on privacy interests.’ ” Id. (quoting Von Raab, 489 U.S. at 672, 109 S.Ct. 1384). In addition, the Eighth Circuit relied on the facts that: “[t]he testing is not random and students are given notice of the testing and procedures used. The testing does not reveal any medical condition about the student other than the presence of certain drugs, and any positive results are not relayed to law enforcement.” Id.

Plaintiffs argue that the evidence received at trial shows that the drug-testing policy actually omits certain protections that are contained in the federal drug-testing procedures. Specifically, Linn State’s drug testing procedures differ from the procedures outlined in the federal regulations in the following seven respects:

1. The regulations limit testing to five drugs — and explicitly prohibit testing for other drugs, 49 C.F.R. § 40.85, whereas Linn State tests for eleven types of drugs, [Plaintiffs’ Exhibit 6].

2. The regulations only require persons who test positive to be removed “from performing safety-sensitive functions,” 49 C.F.R. § 40.23, whereas Linn State ultimately mandates complete withdrawal from the College, [Plaintiffs’ Exhibit 54].

3. The regulations require that initial positive results be given directly, and only, to a Medical Review Officer (“MRO”) to verify the results— including privately discussing possible causes of a false positive with the individual, 49 C.F.R. §§ 40.97(b), 40.121-40.169, whereas under the contract Linn State executed with Employee Screening Services (“ESS”), the testing entity must receive permission from Linn State before sending any positive tests to an MRO, [Plaintiffs’ Exhibit 24 at 2],

4. Unlike the federal regulations, Linn State’s policy does not permit an individual who tests positive to request a second test of “the split specimen” to be conducted by a different laboratory before the positive result is verified and reported, see 49 C.F.R. §§ 40.153, 40.171-40.189.

5. The regulations permit only the MRO to request and review medical and prescription information from an individual and only after a positive result, 49 C.F.R. § 40.129, whereas Linn State requires students who petition for a waiver in advance or contest a positive result to submit this private information directly to Linn State’s President.

6. The regulations contain strict confidentiality provisions, see 49 C.F.R. § 40.165, whereas Linn State’s policy only prohibits sharing results with law enforcement and specifically contemplates sharing results with parents of students under the age of twenty-one, [Plaintiffs’ Exhibit 16].

7. Under the regulations, an individual may be charged for testing only when that person requests the optional retest of the split-sample and, even then, only when the individual is willing and able to pay, 49 C.F.R. § 40.173, whereas Linn State students are assessed a $50.00 fee for the drug testing, [Plaintiffs’ Exhibit 8].

As to the issue of private medical information, Plaintiffs have failed to prove that they are required to submit confidential medical information to Linn State faculty, either before or after the drug screening. At trial, Dr. Richard Pemberton, Linn State’s Associate Dean of Student Affairs, testified that it was Linn State’s policy to have any positive result sent to an MRO, who would review it and contact the student about any potential causes of a false positive. Plaintiffs attempted to impeach this testimony using the contract executed with ESS, but this contract provides only that the testing provider must receive permission before sending positive results to an MRO. [Plaintiffs’ Exhibit 24 at 2]. This requirement, on its own, fails to establish that positive results would not be sent to an MRO but instead directly to Linn State. In addition, Dr. Pemberton testified that it was his understanding that Linn State gave ESS permission to send all positive tests to an MRO. Furthermore, Linn State’s “Frequently Asked Questions” document provides, “Q = Should I report any prescriptions that I am taking at the time of the screening? A = No. If you have a positive result the Medical Review Officer will contact you directly for a legitimate medical explanation for the drugs detected in the screening.” [Plaintiffs’ Exhibit 8]. Thus, the evidence does not show that Linn State’s testing procedures differ meaningfully from the federal regulations with respect to the release of confidential medical information.

Nor is there a reason to alter the Eighth Circuit’s conclusion that the policy is “relatively noninvasive”, simply because lawful prescription drugs are included in the drug screen. Plaintiffs do not dispute that even a lawfully prescribed drug can impair an individual’s ability to engage in safety-sensitive activities, so this distinction does not render the policy sufficiently distinguishable from the federal regulations to make it measurably more burdensome.

With respect to the remaining issues raised by Plaintiffs, several of these, including the fee assessed to the students and the lack of an optional retest of a split specimen, reflect only minor or technical deviations from the federal regulations. Thus, the Court finds that these variations do not significantly increase the character of the privacy intrusion, especially considering that Linn State’s testing procedures parallel and in some ways are even less intrusive than those upheld in Earls and Vemonia. Cf. Earls, 536 U.S. at 832-33, 122 S.Ct. 2559; Vernonia School District 47J v. Acton, 515 U.S. 646, 658, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). To the extent that Linn State’s policy mandates withdrawal from the College, this intrusion is mitigated by the fact that, prior to incurring any adverse consequences, students have the chance to pass a second drug test forty-five days after the first. [Plaintiffs’ Exhibit 54], Furthermore, Plaintiffs do not contest the other facts cited by the Eighth Circuit in finding that the testing is “relatively noninvasive,” including, among others, the fact that “the testing does not reveal any medical condition about the student other than the presence of certain drugs.” Barrett, 705 F.3d at 323.

All that remains, then, is Plaintiffs’ concern with the confidentiality provisions of the drug-testing policy. The testing procedures signed by Dr. Claycomb do contain strict confidentiality requirements, but the policy adopted by the Board of Regents specifically provides that “[p]arental notification ... is appropriate for students under the age of 21 or dependent students.” [Plaintiffs’ Exhibit 16]. Although the trial record is not clear as to whether Defendants actually would notify parents of positive results, the explicit reservation of the right to do so increases the intrusiveness of this policy. Consequently, while the character of the privacy intrusion is not so substantial as to render the entire drug-testing policy unreasonable, the Court will consider the heightened intrusiveness of the policy when balancing the parties’ competing interests.

D. The immediacy of Defendants’ concerns and the efficacy of the drug-testing policy in meeting them

With respect to the immediacy of Defendants’ interest in deterring drug use, it is relevant, but not dispositive, that the record in this case is almost devoid of any particularized evidence of drug use among Linn State’s students. There is also no evidence suggesting that drug use has ever caused or contributed to an accident involving a Linn State student. While such evidence “is not in all cases necessary to the validity of a testing regime,” it “would shore up an assertion of special need for a suspicionless general search program. Proof of unlawful drug use may help to clarify — and to substantiate — the precise hazards posed by such use.” Chandler, 520 U.S. at 319, 117 S.Ct. 1295; accord Little Rock Sch. Dist., 380 F.3d at 356; see also Scott, 717 F.3d at 877-78 (“Nor does the State shore up its case for across-the-board, suspicionless drug testing with evidence of a preexisting drug problem____ The bulk of the evidence canvasses the prevalence and harms of drug use in the general population. But Supreme Court case law contemplates a more targeted showing of drug abuse in the group to be tested, not people as a whole.”); Lebron, 710 F.3d at 1212 (“[T]he State failed to offer any factual support or to present any empirical evidence of a ‘concrete danger’ of illegal drug use within Florida’s TANF population.... Thus, unlike Skinner, Vernonia, and Earls, in which the government presented evidence of drug use within the affected populations, here, the State presented no empirical evidence to bolster its special needs argument that suspicionless drug testing of TANF applicants is in any way warranted.”). That said, these deficiencies, on their own, do not render Defendants’ drug-testing policy unreasonable, per se, if the students are enrolled in programs that pose significant safety concerns. See Barrett, 705 F.3d at 323 (“In the end, the need to prevent and deter the substantial harm that can arise from a student under the influence of drugs while engaging in a safety-sensitive program provides the necessary immediacy for Linn State’s testing policy.”).

Regarding the efficacy of the drug-testing policy, Plaintiffs argue at length that a one time, preannounced drug test is not effective. In support, Plaintiffs cite the testimony of their expert witness, Melanie Ziebart. Ziebart offered a number of uncontroverted criticisms regarding the efficacy of Defendants’ drug-testing policy. Based on her education, training, and experience, Ziebart concluded that this policy does not advance Defendants’ asserted safety interest or deter or prevent future drug use. E.g., [Plaintiffs’ Exhibit 28 at 3, 6-8]. In addition, Ziebart presented a variety of reasons why the specific drug-testing procedures at issue in this case may be unreliable, which could result in the removal of students who do not engage in illicit drug use while overlooking students who do. E.g., [Plaintiffs’ Exhibit 28 at 6, 7-8],

While this testimony provides evidentiary support for Plaintiffs’ critiques of Defendants’ drug-testing policy, Plaintiffs’ arguments as to how these criticisms affect the reasonableness of the drug-testing policy are substantively identical to those that, on appeal, the Eighth Circuit found “unpersuasive.” Barrett, 705 F.3d at 323-24. Plaintiffs argue that circumstances have changed because Ziebart’s testimony shows that the drug-testing policy is not effective at all, as opposed to simply being a less effective option. Yet, Ziebart conceded on cross-examination that it was not her opinion that the drug-testing policy would be wholly ineffective at detecting individuals who have used drugs.

VI. Application of Facts to Law

A. Aviation Maintenance, Electrical Distribution Systems, Heavy Equipment Operations, and Industrial Electricity

The Eighth Circuit explicitly considered three programs offered at Linn State: 1) Aviation Maintenance, 2) Heavy Equipment Operations, and 3) Industrial Electricity. Id. at 319. With respect to the Aviation Maintenance and Industrial Electricity programs, the trial record contains, in all crucial respects, the same evidence that was before the Court of Appeals. As these were the programs that motivated the Eighth Circuit’s decision, the Court finds, for the reasons set forth in that decision, that Linn State’s drug-testing policy is constitutional as applied to students enrolled in the Aviation Maintenance and Industrial Electricity programs. With respect to the Heavy Equipment Operations program, however, it became apparent at trial that the drug testing of the students in this program is not at issue in this case. Specifically, Dr. Pemberton testified that the students in this program are subject to a separate drug-testing requirement and consequently are not subject to the challenged drug-testing policy. Accordingly, it is not necessary to consider the reasonableness of Linn State’s drug-testing policy with respect to the Heavy Equipment Operations program because this policy does not apply to this program.

The drug testing policy, however, does apply to students enrolled in the Electrical Distribution Systems program and the Court finds that those students perform safety-sensitive tasks, similar to the tasks found by the Eighth Circuit to be sufficient to justify Linn State’s drug testing policy. Electrical Distribution students work with power lines, climb forty-foot poles, and operate digger derricks and bucket trucks. [Defendants’ Exhibit 35]. According to Dr. Pemberton’s testimony at trial, these students also auger the holes necessary to plant these poles, wire the poles using electrical wiring and bracings, and operate large trucks with booms. In addition, all of these students are required to complete internships for graduation and all of these internships require drug testing. [Defendants’ Exhibit 35].

Erecting, climbing, and wiring forty-foot power poles, and operating the heavy equipment necessary to accomplish these tasks, presents a concrete risk of injury to others in the vicinity. These risks are at least as substantial as those posed by the activities of the students in the Aviation Maintenance program, who “work in close proximity to active propeller blades” and “taxi airplanes,” which the Eighth Circuit found sufficient to justify the drug-testing policy, Barrett, 705 F.3d at 319, 322. In addition, as with the students in the Industrial Electricity program, the fact that internships are required for the Electrical Distribution Systems program shows that the potential hazards involved in this program are not confined to Linn State’s campus. Cf. id. Moreover, the fact that drug testing is required for all of these internships suggests that drug testing is the norm in this field. Consequently, the Court finds that Linn State’s drug-testing policy is constitutional as applied to students in the Electrical Distribution Systems, Aviation Maintenance, and Industrial Electricity programs.

B. Auto Body, Auto Mechanics, Heavy Equipment Technology, Medium/Heavy Truck Technology, CAT Dealer Service Technician, and Power Sports

The only evidence in the record regarding any safety risks associated with the Auto Body and Auto Mechanics programs is the testimony of the Department Chair of these programs, Jimmy Brandon. When asked to describe the “most dangerous” aspects of the training involved in these programs, Brandon testified that students lift cars with jack stands, handle chemicals like refrigerants, and use washers, air tools, presses and other hand tools such as hammers. [Doc. # 92 at 102-03]. Brandon did not, and in fact was not asked to, provide any further context or elaboration as to how these activities pose a significant safety risk, either to the individual students themselves or to the people around them. Consequently, the only evidence before the Court with respect to whether these programs pose a significant safety risk to others is Brandon’s brief and conclusory list of the equipment and materials that might be used by the students in these programs.

From this testimony, the equipment used by these students appears to be, in large part, no different than that which might be found in any household garage. Even assuming that Brandon’s limited testimony permits some inference of a safety risk, it would be pure conjecture to find, based on this evidence, that the work of these students is “fraught with such risks of injury to others that even a momentary lapse of attention [could] have disastrous consequences,” Skinner, 489 U.S. at 628, 109 S.Ct. 1402. Cf. Lebron, 710 F.3d at 1213 (“[T]he Supreme Court has required that a state must present adequate factual support that there exists a ‘concrete danger,’ not simply conjecture____” (quoting Chandler, 520 U.S. at 319, 117 S.Ct. 1295)).

Although Brandon offered no testimony as to whether serious injuries are even possible in these programs, he did testify that “[v]ery, very few” students have been injured in these programs in the last five years and that the injuries that did occur were all “minor,” such as “mashed fingers, scrapes, cuts, and ... gasoline in the eye.” [Doc. # 92 at 104-05]. Defendants cite no authority that suggests the risk of a hurt finger or a scrape poses the type of substantial and real public safety risk that is required to justify suspicionless drug testing. Cf. Chandler, 520 U.S. at 318, 117 S.Ct. 1295. To find a special need on this record, would open the door to almost unlimited drug testing of many college students and others involved in any government sponsored activity who might be exposed to such minimal injuries. This is clearly not contemplated by the limited circumstances in which the courts have permitted drug testing of public employees or recipients of government services. This is not to say that a state actor must wait for a serious injury to occur before being permitted to drug test an employee or program participant. But the evidence of minimal injuries at Linn State and the absence of any evidence of problems at other schools like Linn State, or from the automotive industry generally, persuade the Court that the risk of any harm to students in the automotive program is minimal and the harm likely to be suffered is not substantial. Had there been evidence to the contrary either at Linn State or elsewhere, the Court would have expected to hear it, given the opportunities provided to Defendants to present their factual record.

Furthermore, there is evidence that the students in the Auto Body and Mechanics programs are highly supervised and subject to a number of faculty-enforced safety precautions. For instance, these students are required to wear safety glasses, attend safety instruction at the start of each semester, and pass a safety test before they are allowed to go into the lab. [Doc. # 92 at 104], In addition, these students are supervised closely enough for the faculty to ask a student to leave the shop if she is acting erratically. [Doc. # 92 at 105]. Although these students sometimes work on vehicles owned by people in the local community, the instructors are required to test drive these vehicles before they are returned to their owners, [Doc. # 92 at 103, 105], which substantially mitigates any immediate risk to the public. Cf. Harmon, 878 F.2d at 491 (“The public safety rationale adopted in Von Raab and Skinner focused on the immediacy of the threat. The point was that a single slip-up by a gun-carrying agent or a train engineer may have irremediable consequences; the employee himself will have no chance to recognize and rectify his mistake, nor will other government personnel have an opportunity to intervene before the harm occurs”). Thus, to the extent that there are any safety concerns associated with these programs, it appears that faculty supervision and faculty-enforced safety measures effectively mitigate them, as evidenced by Brandon’s testimony regarding the very limited number and trivial nature of the injuries that have been sustained by the students in these programs. See [Doc. # 92 at 104-05].

In addition, there is no evidence that students in the Auto Body and Mechanics programs are entering a heavily regulated field or a field in which drug testing is the norm. In Skinner, the Court found that the railroad industry was “regulated pervasively” and had “long been a principal focus of regulatory concern.” Skinner, 489 U.S. at 627-28, 109 S.Ct. 1402. By contrast, the trial record in this case contains no evidence indicating that the field of automotive repair is a similarly, pervasively regulated industry. The fact that this industry apparently does not present the kind of public safety concerns that would warrant regulatory oversight further confirms the Court’s conclusion that the activities involved in these programs do not pose a significant safety risk. There is also no admissible evidence that shows these students are entering a field in which drug testing is the norm, and so there is no basis for concluding that these students have diminished privacy expectations. Cf. Barrett, 705 F.3d at 323 (“[W]e think some college students that attend Linn State have a diminished expectation of privacy because they are seeking accreditation in heavily regulated industries and industries where drug testing, in practice, is the norm.”).

Finally, Defendants acknowledge that no faculty or staff at Linn State are drug tested as a condition of their participation in the Auto Body and Auto Mechanics programs. Yet they are the people most responsible for providing hands on training and feedback as well as enforcing safety rules and protecting their students from harm. If these programs posed a significant safety risk one would expect that all participants would be drug tested, not just the students.

In conclusion, the evidence shows that Defendants’ asserted safety interest is, with respect to the Auto Body and Auto Mechanics programs, minimal if not nonexistent. The lack of a substantial and real public safety risk alone compels the conclusion that the drug-testing policy is unconstitutional as applied to these students. See Chandler, 520 U.S. at 323, 117 S.Ct. 1295. Furthermore, as discussed previously, Defendants made no attempt to shore up their assertion of a special need with evidence of drug use among Linn State’s students and there is no evidence of even a single drug-related accident in Linn State’s fifty-year history. In addition, these students’ undiminished and therefore substantial privacy expectations as well as the somewhat heightened intrusiveness of the challenged drug-testing policy, due to the parental notification provision, further weigh against the reasonableness of the drug-testing policy as applied to the students in these programs. Accordingly, Defendants’ unsubstantiated assertion of a special need does not outweigh the privacy interests of these students, and the Court finds that Linn State’s drug-testing policy is unconstitutional as applied to students in the Auto Body and Auto Mechanics programs.

The evidence in the record regarding the Heavy Equipment Technology and Medium/Heavy Truck Technology programs similarly fails to demonstrate that these students perform the kinds of safety-sensitive tasks that might justify the drug-testing policy. The testimony of one instructor for these programs, Edward Frederick, is the only evidence in the record on this issue. As with the auto repair programs, much of Frederick’s testimony on the safety risks involved with these programs is little more than a conclusory list of the equipment and materials these students use. Specifically, according to Frederick, these students use “[cjommon hand tools,” like hammers, chisels, wrenches, power tools and drills, and are exposed to chemicals like coolant and various cleaners. [Doc. # 92 at 86-87].

Absent any further context or explanation that might show how the students’ use of these items presents a concrete danger of serious harm, which Defendants made no attempt to provide, the Court can only speculate as to whether these students engage in activities that pose significant safety risks. Once again, the items listed by Frederick appear to be of the type that might be found in any common household garage. Thus, for the same reasons discussed with respect to the auto repair programs, this evidence, without more, does not suggest that these students discharge duties so fraught with risk of injury to others that even a momentary lapse in attention could have disastrous consequences.

In addition, the credibility of Frederick’s testimony is somewhat questionable, in light of one rather obvious attempt to exaggerate the dangers associated with these programs. Specifically, Frederick initially testified that these students “work with live electrical wiring,” [Doc. #92 at 87], but later admitted on cross-examination that they avoid working with live wiring “if at all possible,” and that when they do work with live wiring it is to “attach[ ] a power tool,” which means simply “[plugging [the tool] into an outlet,” [Doc. # 92 at 92].

Furthermore, although these students diagnose and repair heavy machinery, as “a general rule” they do not operate this machinery, with the limited exception of moving it in and out of the shop area. [Doc. # 92 at 86-87]. While the Eighth Circuit found that the students in the Heavy Equipment Operations program discharge duties comparable to those considered in Skinner, see Barrett, 705 F.3d at 322, the students in that program actually “go off campus to build in communities,” and “operate machinery on public roads,” [Defendants’ Exhibit 37]. By contrast, the safety risks associated with moving a piece of equipment a short distance, with an instructor in attendance, and for the sole purpose of bringing it into or out of a shop are fundamentally different, and necessarily less substantial, than the kind of public safety concerns that must be present to justify suspicionless drug testing. Cf. Chandler, 520 U.S. at 318, 323, 117 S.Ct. 1295; Krieg, 481 F.3d at 518 (finding that the plaintiffs occupation was “safety sensitive” where he operated the heavy equipment “in the City near other vehicles and pedestrians,” as opposed to “in rural areas away from traffic and pedestrians”); Burka, 751 F.Supp. at 443 (“If these employees operate vehicles on a regular basis in the presence of their fellow employees or the public, their task is safety sensitive. If their operation of motorized vehicles is only done on specific instructions of a supervisor in attendance, ... their task does not rise to the level of a safety sensitive occupation.”).

In addition, as with the auto repair programs, there is evidence that these students are highly supervised and subject to a variety of faculty-enforced safety measures. Frederick testified that an “instructor and/or the lab assistant” supervises these students any time they are working on heavy equipment or using chemicals. [Doc. # 92 at 93]; see also [Plaintiffs’ Exhibit 58, Pemberton Deposition Designations at 37:06-10]. Frederick also testified as to a number of general safety precautions utilized by these programs, including the mandatory use of personal protective equipment, such as face shields, safety glasses, and protective gloves. [Doc. # 92 at 91, 92], The efficacy of faculty supervision and these safety precautions is evidenced by the fact that Frederick could recall only two minor injuries during his time as an instructor, and these were slight cuts or abrasions. [Doc. # 92 at 91]. Accordingly, any safety concerns that might be associated with using this equipment appear to be substantially mitigated by supervision and faculty-enforced safety procedures. Cf. Burka, 751 F.Supp. at 443-44 (finding that the positions of carpenter, mason, iron worker, plumber, sight maintainer, tinsmith, painter, sign painter, heating and air conditioning maintainer, and ventilation and drainage maintainer were not “safety sensitive” in part because these employees were subject to supervision).

Furthermore, there is no evidence from other schools or industry programs where significant injuries have occurred under similar supervised circumstances. Nor was there evidence of a Linn State student being so injured. This absence of evidence also persuades the Court that these programs are not safety sensitive. And the faculty who work in these programs are not drug tested. As previously discussed, if the work being done in these programs is inherently dangerous under these circumstances, one would expect the faculty to be drug tested as well.

Finally, there is no evidence that the students in the heavy equipment repair programs are entering heavily regulated fields, which suggests the safety risks associated with these industries do not present the type of significant public safety concerns that might demand regulatory oversight. There is, however, some evidence that students who work in these fields are tested by private employers. Specifically, Frederick testified that students in the Heavy Equipment Technician and Medium/Heavy Truck programs must complete internships for graduation and that “a large percentage” of these internships require drug testing. [Doc. # 92 at 88].

Even assuming that some or even all of these students have a diminished expectation of privacy, the drug-testing policy may not be constitutionally applied to them unless the activities required by their programs pose a substantial and real risk to public safety. Chandler, 520 U.S. at 323, 117 S.Ct. 1295 (“[W]here the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’... But where, ... public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged.”). Accordingly, the Court finds that Linn State’s drug-testing policy is unconstitutional as applied to students in the Heavy Equipment Technology and Medium/Heavy Truck Technology programs.

The activities performed by students in the Power Sports and CAT Dealer Service Technician programs are similar to those discussed above, but differ in some crucial respects. The Power Sports students deal with on- and off-road motor vehicles, which requires the use of hydraulic and air type lifts. [Doc. # 92 at 96], If these lifts are not properly locked, there is a possibility of injury or death. [Doc. # 92 at 96]. In addition, due to the unique kinds of vehicles which these students repair, this program uses a dynamometer, which is used to keep vehicles stationary while running them at a very high rate of speed. [Doc. # 92 at 96]. For instance, if a motorcycle is experiencing a problem at 120 miles per hour, the students will use the dynamometer to run the vehicle at this speed in order to try and find the problem. [Doc. # 92 at 96]. The use of this equipment necessarily requires a high degree of caution, as there is a constant risk that a tire could blow out or that parts could fly off. [Doc. # 92 at 96-97]. Furthermore, the students in this program routinely operate all of the vehicles with which they work, for test drives and other purposes. [Doc. # 92 at 97]. With respect to the CAT Dealer Service Technician program, these students are required to operate jib cranes, which are used to lift and move heavy equipment weighing up to 3,000 pounds. [Doc. # 92 at 89-90]; see also [Defendants’ Exhibit 48]. While the students are moving heavy items around the shop using these cranes, other students are in close proximity and walking around on the floor of the shop. [Doc. # 92 at 89].

• Based on the unique and heightened safety risks associated with the Power Sports and CAT Dealer Service Technician programs, the Court finds that these programs, which are analogous to the Aviation Maintenance program, pose a significant safety risk even with faculty supervision. They are therefore similarly safety sensitive. Furthermore, the students in the Power Sports program are already subject to random drug testing, separate and apart from the challenged drug-testing policy. [Doc. # 92 at 99]. The fact that this program was specifically selected for random drug testing, while the other mobile equipment repair programs were not, further supports the conclusion that this program involves peculiar and comparatively significant safety concerns. Likewise, the students in the CAT Dealer Service Technician program must complete an internship in order to graduate and all of these internships require drug testing. [Doc. # 92 at 88],

As the students in both of these programs are already subject to suspicionless drug testing by virtue of their enrollment in these programs, these