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

Plain-English summary

Representative Mary Bentley asked whether Act 323 of 2019, "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," was constitutionally suspect. The Act lets school boards adopt policies requiring pre-employment drug screening or random drug screening of current employees, defined as a chemical test of blood, breath, or urine.

The AG's answer was framed in two layers:

1. A facial constitutional challenge would likely fail. Statutes are presumed constitutional in Arkansas (Ford v. Keith, ACW v. Weiss), and the AG, as an executive officer, cannot declare them unconstitutional. Where a statute can be construed constitutionally, courts will do so (Jones v. State). The U.S. Supreme Court "has been especially reluctant to invalidate statutes on their face under the Fourth Amendment," as the Eighth Circuit put it in Barrett v. Claycomb. So the Act is unlikely to fall on its face.

2. Specific district policies will face Fourth Amendment scrutiny. Drug tests by urinalysis or blood draw are searches under the Fourth Amendment (Skinner, Chandler v. Miller), made applicable to state and local governments by the Fourteenth Amendment (Vernonia). Article 2, § 5 of the Arkansas Constitution adds a parallel state-level limit, which the Arkansas Supreme Court generally interprets in lockstep with the Fourth Amendment (McDonald v. State). The AG noted that no federal appellate court had conclusively answered whether school districts can require teachers and other employees to submit to "suspicionless" drug testing.

So the Act survives in the abstract, but each district's policy needs to be designed with Fourth Amendment doctrine in mind. The case law touches random testing of employees with safety-sensitive functions and special-needs categories more comfortably than blanket suspicionless testing of all employees.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The body of federal Fourth Amendment doctrine on suspicionless employee drug testing has continued to develop after this opinion was issued.

Common questions

Q: What is the difference between a facial and an as-applied challenge?
A: A facial challenge argues the statute is unconstitutional in every application. An as-applied challenge argues the statute (or a particular policy adopted under it) is unconstitutional as applied to a specific person or situation. Facial challenges are much harder; the U.S. Supreme Court is "especially reluctant" to grant them in the Fourth Amendment context.

Q: Does the Fourth Amendment ban all government drug testing?
A: No. Drug tests are searches under Skinner and Chandler, but the Court has upheld testing in safety-sensitive contexts (railway employees, customs agents who carry firearms or interdict drugs, student athletes, students in extracurriculars). The "special needs" doctrine carves out tests where ordinary law-enforcement purposes are not the goal.

Q: What about random testing of all teachers, with no safety-sensitive job?
A: That's where the law is least clear. The AG specifically noted that "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." Districts adopting blanket policies should expect litigation.

Q: How is Article 2, § 5 of the Arkansas Constitution different from the Fourth Amendment?
A: In doctrine, mostly not. McDonald v. State, 354 Ark. 216 (2003), said the Arkansas Supreme Court typically interprets Article 2, § 5 the same way as the Fourth Amendment.

Q: Could a district require pre-employment testing only?
A: Pre-employment testing has historically faced less constitutional resistance than random testing of incumbents, because applicants have a diminished expectation of privacy and consent more clearly. But the safer approach is to draft any policy with constitutional doctrine in mind and seek legal counsel.

Background and statutory framework

Act 323 of 2019 added authority for public school district boards to implement drug-screening policies. The Act defines "drug screening" as a chemical test of blood, breath, or urine, and "employee" as someone employed in a preK-12 public school district.

The presumption of constitutionality is well-settled in Arkansas (Ford v. Keith, 338 Ark. 487 (1999); ACW v. Weiss, 329 Ark. 302 (1997)). The AG, as an executive-branch officer, cannot pronounce a statute unconstitutional; that is the judiciary's role. Where ambiguity exists, courts construe statutes to be constitutional (Jones v. State, 333 Ark. 208 (1998)).

The Fourth Amendment doctrine on drug testing comes from Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (drug test = search), and Chandler v. Miller, 520 U.S. 304 (1997) (suspicionless testing requires special needs beyond ordinary law enforcement). The Eighth Circuit's Barrett v. Claycomb, 705 F.3d 315 (8th Cir. 2013), echoed Warshak v. United States, 532 F.3d 521 (6th Cir. 2008) (en banc), in noting the U.S. Supreme Court's reluctance to invalidate statutes facially under the Fourth Amendment.

Article 2, § 5 of the Arkansas Constitution provides parallel state-law protection, generally interpreted in line with federal doctrine (McDonald v. State, 354 Ark. 216 (2003)).

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