Volume 1, Issue 2, June 2009
N.C. Court of Appeals Ruling on Random Drug Testing of School Board Employees:
Jones v. Graham County Board of Education
On June 2, 2009, in Jones v. Graham County Board of Education,1 the North Carolina Court of
Appeals ruled that a school board policy mandating random, suspicionless drug and alcohol
testing of all school board employees violated the North Carolina Constitution’s prohibition on
unreasonable searches.
The controversy began in 2006 when the Graham County Board of Education enacted a new
employee drug testing policy that subjected all school board employees to random, suspicionless
drug and alcohol testing. In April 2007, a teacher, Susan Jones, and the North Carolina
Association of Educators (NCAE) brought a lawsuit alleging that the policy violated the North
Carolina Constitution. The Superior Court in Graham County ruled in favor of the school board.
However, the North Carolina Court of Appeals overturned the decision and ruled in favor of Ms.
Jones and the NCAE.
In the challenged drug and alcohol testing policy, the board categorized all employee positions as
safety sensitive, including principals, teachers, coaches, cafeteria workers, and custodians. In
their testimonies, board members stated that the reason for this classification was that employee
use of illegal drugs and alcohol could impact the health, safety, and well-being of students. The
Graham County policy also provided a definition of drug testing and information about specimen
collection, testing procedures, and consequences. Any employee with a detectable amount of
drugs or alcohol in his or her system was to be suspended and have a letter of reprimand placed
in his or her personnel file. Results were not to be turned over to law enforcement unless
otherwise required by law.
The North Carolina Court of Appeals used a reasonableness analysis to review the Graham
County policy. The reasonableness of a governmental search is generally determined by
balancing the nature of the intrusion on the individual’s privacy against the promotion of
legitimate governmental interests.2 Although some individualized suspicion is usually required
for a constitutional search, the United States Supreme Court has also held that the Fourth
Amendment imposes no irreducible requirement of individualized suspicion.3 When the privacy
interests implicated by a search are minimal and a requirement of individualized suspicion would
jeopardize an important governmental interest furthered by the intrusion, a search may be
reasonable despite the absence of such suspicion.
Applying this analysis, the North Carolina Court of Appeals first held that the Graham County
policy was “remarkably intrusive.”4 Accordingly, it was “unnecessary to venture beyond” the
provision that required the suspension of any employee with a “detectable amount of an illegal
drug or alcohol in his or her body” to demonstrate the policy’s intrusiveness.5
The next consideration was whether school employees have a diminished expectation of privacy
because of their status as school employees. The Court of Appeals noted that the Fourth Circuit
had held, in a case addressing the privacy of employees working at a chemical weapons plant,6
that public employees have a diminished privacy expectation when they work in industries that
are heavily regulated for safety reasons.7 However, in the Graham County case, there was no
evidence that safety concerns necessitated the heavy regulation of any school employee’s job.
The board argued that drug and alcohol testing of its school employees was comparable to the
random, suspicionless drug testing of an airport employee whose responsibilities included
operating a vehicle in the airplane loading area—a policy that the North Carolina Court of
Appeals upheld in a 1993 decision. In this case, however, the Court of Appeals concluded that
Graham County school employees were not in safety sensitive positions that were comparable to
that of the airport employee in the earlier case. The evidence in the Graham County case did not
show that a school employee with a detectable amount of drugs or alcohol in his or her body
presented an increased risk of harm to anyone.
The board also argued that Fourth Amendment rights are different in public schools because of
schools’ “custodial and tutelary responsibility for children.”8 The court disagreed, noting that
while the United States Supreme Court has held that random drug tests may be required for
school children's participation in extracurricular activities, this requirement is only permissible
because a school’s “custodial and tutelary” power over students permits a degree of supervision
and control over school children that could not be exercised over “free adults.”9 Ultimately, the
North Carolina Court of Appeals held that it was “unable to conclude from [the] record that any
school employees ha[d] a reduced expectation of privacy by virtue of their employment in a
public school system.”10
Finally, the court found that the board did not have a sufficiently strong interest in conducting
random, suspicionless drug testing to outweigh school employees’ privacy interests. There was
no evidence that Graham County school employees had drug problems or that any student had
ever been harmed by an employee with a detectable amount of drugs or alcohol in his or her
body. Instead, the policy appeared to have been motivated by a desire to take a symbolic stand
against illegal drug use rather than by safety concerns, as required by the United States Supreme
Court.
In sum, the North Carolina Court of Appeals weighed the privacy interest of the employees
against the board’s interest in the drug policy. Because the privacy interest of school employees
was greater, the court ruled that the board may not require all school employees to submit to tests
for drugs or alcohol randomly and without suspicion. The court reached this conclusion without
discussing when, if ever, a school employee might properly be classified as being in a “safety
sensitive” position such that the employee could be required to submit to random, suspicionless
drug and alcohol testing.
Policy Considerations for North Carolina School Boards

The United States Supreme Court has allowed random drug testing of employees with
safety sensitive jobs,11 jobs with “duties fraught with such risks of injury to others that
even a momentary lapse of attention can have disastrous consequences.”12 However, the
Fourth Circuit has not decided a case involving drug and alcohol testing of school
employees. When deciding whether school employees had safety sensitive jobs, the Fifth
Circuit Court of Appeals held that a school custodian who interacted with students
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1
regularly, used dangerous equipment, and used hazardous chemicals worked in a safety
sensitive position.13 However, in a 2009 decision, a West Virginia federal district court
ruled that safety sensitive jobs are those that carry “a concrete risk of massive property
damage, personal injury, or death” in their ordinary execution and that school employees
do not have safety sensitive positions.14
The decision in this case does not preclude the school system from testing employees
based on reasonable suspicion that the employee is under the influence of drugs or
alcohol while at work.
This case did not address the issue of the constitutionality of pre-employment drug tests.
The ruling in this case does not apply to school employees such as school bus drivers
who operate commercial motor vehicles in the course of their duties for the school
system. As required by federal law, the school system must carry out pre-employment,
post accident, random, reasonable suspicion, return to duty, and follow-up drug and
alcohol testing on these employees.15
Jones v. Graham County, No. COA08-477, 2009 N.C. App. LEXIS 695, at *1 (Ct. App. June
2, 2009).
2
Bd. of Educ. of Indep. Sch. Dist. v. Earls, 536 U.S. 822, 829 (2002).
3
Id.
4
Jones, 2009 N.C. App. LEXIS 695, at *24.
5
Id. at *23-24 (emphasis in original).
6
Thomson v. Marsh, 884 F.2d 113, 114 (4th Cir. 1989) (per curiam).
7
Id. at *24-25.
8
Jones, 2009 N.C. App. LEXIS 695, at *25.
9
Id (quoting Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655 (1995)).
10
Id.
11
See Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989); Skinner v. Railway
Labor Executives’ Ass’n, 489 U.S. 602 (1989).
12
Von Raab, 489 U.S. at 670 (quoting Skinner, 489 U.S. at 628).
13
Aubrey v. Sch. Bd. of Lafayette Parish, 148 F.3d 559, 565 (5th Cir. 1998).
14
Am. Fed’n of Teachers v. Kanawha County Bd. of Educ., 592 F. Supp. 2d 883, 902 (S.D.
W.Va. 2009).
15
49 U.S.C. 31306; 49 C.F.R. pts. 40,382.