Opposition Brief — Knox County Education Ass'n v. Knox County Board of Education

Supreme Court brief1999

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No. 98-1799

IN THE

Supreme Court of the United States

KNOX COUNTY EDUCATION ASSOCIATION,

Petitioner,

KNOX COUNTY BOARD OF EDUCATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

fn a ne ence no ne aren ae eae

mee sorem, > mm ramet nt ne

RESPONDENT?’S BRIEF IN OPPOSITION

RICHARD T. BEELER

JOHN E. OwInGs

_ Counsel of Record

Mary ANN Ross STACKHOUSE

Knox County Law Director

Attorneys for Respondent

City County Building

Suite 612

400 Main Avenue

Knoxville, Tennessee 37902

(423) 215-2327

153273 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

1. Whether the Fourth Amendment prohibits post-offer,

pre-employment suspicionless drug testing of new public

school teachers whose profession is highly regulated and

who, by state law, stand in loco parentis with the

responsibility to protect students from harm and secure order

in the schools.

2. Whether the Fourth Amendment requires a statistical

nexus between student injuries and drug impaired teachers

or a pronounced drug problem among a school system’s

teachers to justify post-offer, pre-employment drug testing

of new public school teachers responsible for the safety,

education and welfare of public school students subject to

compulsory attendance.

TABLE OF CONTENTS

Page

Questions Peeeemtes s.c5 606 sdsdcdesasas ee i

T8090 CT UCR oi 6k tsitioas ins eee li

Table of Cited Authorities .......cceccvccesenss 1V

Teese Of AGPUREIONS «6-2 i.vsesh Keak d eee ix

Constitutional, Statutory and Policy Provisions ... |

prabemnent OF Gee CRO oc sv ccnsssetnsbieeeee l

Reasons for Denying the Writ ................. 11

I. The Fourth Amendment Does Not Prohibit

Post-offer, Pre-Employment Suspicionless

Drug-Testing Of New Public School

Teachers Whose Profession Is Highly

Regulated And Who, By State Law, Stand In

Loco Parentis With The Responsibility To

Protect Students From Harm And Secure

Order In The Seneelt. asc scwsuacesivnves 11

A. The Knox County Public Schools Have

A Legitimate Governmental Interest In

Employing Drug-Free Teachers. ..... 13

iii

Contents

Page

1. By state law, Knox County teachers

act in loco parentis and are

responsible for the safety of public

school students subject to

compulsory attendance. ......... 14

2. Knox County teachers hold “safety-

sensitive” positions. ............ 19

II. The Fourth Amendment Does Not Require

A Statistical Nexus Between Student Injuries

And Drug Impaired Teachers Or A

Pronounced Drug Problem Among A Public

School System’s Teachers To Justify Post-

Offer, Pre-Employment Drug Testing Of

New Teachers Responsible For The Safety

And Education Of Students Subject To

Compulsory Attendance. ............... 21

Dee ene ee tae eeaewees 24

TABLE OF CITED AUTHORITIES

Page

Cases:

Carelli v. Ginsburg, 956 F.2d 598 (6th Cir. 1992) . 20

Chandler v. Miller, 520 U.S. 305 (1997) ..12, 18, 22, 23

Daury v. Smith, 842 F.2d 9 (1st Cir. 1988) ....... 19

Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir.

1989), cert. den. sub. nom., Bell v. Thornburgh,

ee ts DUETS bccocevuWeeuseuceenaes 23

Lyons v. Sullivan, 602 F.2d 7 (1st Cir.), cert. den.,

ee Se. TED hv acco ees craceasubabuns 19

Nat’! Treasury Employees Union v. Von Raab, 489

ie i. PPPerrrrrerrr 12, 18, 19, 21, 22, 23

Plyler v. Doe, 457 U.S. 202 (1982) ............. 15

San Antonio Independent School Dist. v. Rodriguez,

ee Shee eG hd kane dele ena penssebeeena 15

Skinner v. Railway Labor Executives’ Ass'n, 489

et EE ha bbe nadee eases inns 12, 18, 19, 20

Strong v. Uniondale Union Free School Dist., 902

Fae ee Ce Gs SOE. 6:0 64 os SR beeene ners 19

Cited Authorities

Page

Todd v. Rush County Schools, 133 F.3d 984 (7" Cir.

1998), cert. den., 119 S. Ct. 68 (1999) ........ 13

Vernonia School Dist. 475 v. Acton, 515 U.S. 656

CED vii de ducesdvcevesessesepanerere 12, 18, 19

Willis v. Anderson Community School Corp., 158

F.3d 415 (7" Cir. 1998), cert. den., 119S. Ct. 1254

Be er et me Serre ree 13

Statutes:

Bet es Se CEE, «oo veseeececieevasesets 16

th ee rT errr rer rr rrr 2

Po Rik tom ee Ff Pererrrerrrre rrr Tre 16

SS US. | Tseete WO. 2s isis sewn 16

Code of Tennessee § 49-1-101, et seq. .......... 16

Code of Tennessee, § 49-1-214 ................ 16

Code of Tennessee, § 49-1-402, et seg. .......... 16

Code of Tennessee, § 49-2-201, et seq. .......... 17

Code of Tennessee § 49-2-203 ................. l

Cited Authorities

Page

Code of Tennessee, § 49-2-203(a)(1) ........... 17

Code of Tennessee, § 49-2-203(a)(7) ........... 17

Code of Tennessee, § 49-5-153 ................ 18

Code of Tennessee, § 49-5-501, et seq. ........ 1, 16,18

Code of Tennessee, § 49-5-501(3)(E) ........... 18

Code of Tennessee, § 49-5-504 ...........0000. 17

Code of Tennessee, § 49-5-506 ...........0005. 17

Code of Tennessee, § 49-5-511 ................ 17, 18

Code of Tennessee, § 49-5-511(a)(1)(2) ......... 17

Code of Tennessee, § 49-5-512 .............4.. 17, 18

Code of Tennessee, § 49-5-513 ............0.4. 17

Code of Tennessee, § 49-6-901 ................ 16

Code of Tennessee, § 49-6-1001, ef seg. ......... 16

Code of Tennessee, § 49-6-1201, ef seg. ......... 16

Code of Tennessee, § 49-6-1301 ............... 16

vil

Cited Authorities

Page

Code of Tennessee, § 49-6-3001(c)(1) .......... 16

Code of Tennessee, § 49-6-3401 ............... |

Code of Tennessee, § 49-6-4011, ef seg. ......... 1, 16

Code of Tennessee, § 49-6-4101 ............... 16

Code of Tennessee, § 49-6-4105(a) ............. 18

Code of Tennessee, § 49-6-4201, ef seg. ......... l

Code of Tennessee, § 49-6-4203(a) ............. 15

Code of Tennessee, § 49-6-4203(b) ............. 15, 18

Code of Tennessee, § 49-6-4203(d)(e)(1)(2)(4) ... 16

Code of Tennessee, § 49-6-4203(e)(3) .......... 17

Code of Tennessee, § 49-6-4204 ............... 17

Code of Tennessee, § 49-6-4205 ............... 17

Code of Tennessee, § 49-6-4205(a) ............. 17

Code of Tennessee, § 49-6-4213 ............... 17

Code of Tennessee, § 49-6-4214 ............... 17

vill

Cited Authorities

Page

Code of Tennessee, § 49-6-4216(b) ............. 17

Code of Tennessee, § 49-6-4301, et seg. ......... l

Code of Tennessee, § 49-50-1401, et seg. ........ 16

United States Constitution:

Fourth Amendment ................... i th, Bao

Other Authority:

es es Ss CI OE” vnc nd du aswediedeecdes 16, 17

TABLE OF APPENDICES

Page

Appendix A —- Knox County Board Of Education’s

Drug-Free Workplace Substance Abuse Policy .. la

Appendix B — Relevant Statutes ................ 33a

elt

OE ARR a RN, elit a nl iN a Al Rea

ee.

CONSTITUTIONAL, STATUTORY

AND POLICY PROVISIONS

The Fourth Amendment to the United States Constitution

provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, ....

Amand. IV.

Certain Tennessee statutes also govern this case. Those

provisions are found at Code of Tennessee § 49-2-203 (powers

and duties of the Board); Code of Tennessee, § 49-5-501,

et seq. (teacher tenure); Code of Tennessee, § 49-6-4011,

et seq. (student and employee safe environment act); Code of

Tennessee, § 49-6-4201, et seq. (school security act); Code of

Tennessee, § 49-6-4301, et seq. (duty to report student offenses);

Code of Tennessee, § 49-6-3401 (suspension of students). These

Statutes are reproduced at App. 33a through 87a The Knox

County Drug-Free Workplace Policy is reproduced at App. la

through 32a.

STATEMENT OF THE CASE

Petitioners argue that the court below based its decision

solely on common sense and intuitive understanding. To

construe passing comments in one paragraph and one footnote

of a twenty-four page opinion as bearing the weight of the Sixth

Circuit’s ruling defies credibility. The record evidence cited by

the court and set forth below supports the Sixth Circuit’s

considered opinion and renders it consistent with this Court’s

rulings on suspicionless drug testing.

On or about June 1, 1994, the Knox County Board of

Education adopted the “Drug-Free Workplace Substance Abuse

Policy” for implementation in the Knox County School System.

(Anderson, JA at 995). The Policy establishes a comprehensive

drug and alcohol testing program for the Board of Education’s

employees.' The first goal and objective of the Policy is

“[t]o establish, promote, and maintain a safe, healthy, working

and learning environment for employees and students.”

(JA 1005; App. 2a).

Consistent with this goal, the Policy divides the tested

employees into two distinct groups: (1) those who may be tested

only for reasonable suspicion of drug or alcohol impairment

while at work (all employees); and (2) those who may be the

subject of suspicionless testing, namely, certain “safety-

sensitive” employees. Suspicionless testing may arise under

three circumstances: persons hired for positions designated

“safety-sensitive” are tested post-offer, pre-employment;

persons transferring to safety-sensitive positions are tested pre-

transfer; persons holding safety-sensitive positions are tested

upon return to duty after undergoing rehabilitation. (App. 3a-

4a, 9a-14a).? The policy does not call for random testing.

The Policy designates certain positions as “safety-sensitive”

and thus subject to post-offer, pre-employment drug and alcohol

testing. Those positions are principal, assistant principal, teacher,

traveling teacher, teacher aide, substitute teacher, and school

secretary (hereinafter, “teachers”).* These positions are

considered “safety-sensitive” by the Board because these

1. The Federal Anti-Drug Act, 41 U.S.C. § 702, requires federal

grant recipients, such as public schools, to establish a drug-free

workplace.

2. Petitioners contest the post-offer, pre-employment suspicionless

drug testing. Drug testing is not the only feature of the policy, however.

The Policy prohibits being under the influence of an illegal drug, alcohol

or a prescription drug “above the level recommended by the prescribing

physician” while on duty or at a system-approved or school-related

function; requires reporting convictions under any criminal drug law;

provides rehabilitation; advises of disciplinary action; and contains

procedures for maintaining confidentiality. (JA 1005; App. 5a-9a, 14a-

21a).

3. School secretaries frequently dispense medication to students.

- fie ete ei WEAR

Sith nana Rea an Ms oe aR Stns

employees have duties where they supervise children and are

responsible for their safety.‘ (Staley, JA 968-969). In the Board’s

view, any momentary lapse in attention or judgment on the part

of these employees could result in an immediate and serious

threat to a child’s safety.

Any momentary lapse in teacher attentiveness is likely to

result in an immediate and serious threat to a child’s safety

because threats to students’ safety already exist in the Knox

County schools. With respect to assault, in the 1992-93 school

year, there were 61 assaults by students on students and 17

assaults on teachers; in 1993-94, there were 68 assaults by

students on students and 9 assaults on teachers; in 1994-95,

there were 44 assaults on students and 7 on teachers; in 1995-

96, there were 16 aggravated assaults on students by students,

20 assaults on students, 5 assaults on principals by students

and 9 assaults on teachers or teacher aides by students.

(JA 1117, 1122, 1141). With respect to weapons, 1993-94 saw

the greatest number of weapons at school, namely 73, of which

49 were knives. (JA 1117). In 1995-96, twenty-eight (28)

weapons were recovered, 19 of which were knives. (JA 1117).

With respect to drugs, in 1995-96, seventy-one (71) incidents

of substance abuse by students occurred at school during the

school day or at school sponsored on-campus functions, 44 of

them involved marijuana. (JA 1117).

According to the Knox County Schools Chief of Security,

Steve Griffin, teachers and principals are “most definitely”

4. These employee positions were deemed “safety-sensitive” by

the U.S. District Court for the Eastern District of Tennessee in its April

14, 1994, decision in the first case brought by the teachers’ union

challenging the drug testing policy. See Knox County Education

Association v. Knox County Board of Education, No. 3-91-cv-72). (JA

267-292). In the first case, the trial court found the procedures wanting.

Consequently, the Board revised its policy on June 1, 1994, consistent

with the district court’s findings and rulings. After the Board revised its

policy, the teachers’ union brought the instant challenge.

important to school safety and security. (Griffin, JA 937). There

are 53,000 students in the Knox County School System. (Sparks,

JA 855). Of those, 9,343 are special education students. There

are 88 schools in the Knox County School System and only 22

full-time uniformed security officers and 4 investigators.

(Griffin, JA 931-932). Thus, all schools in Knox County do not

have a security officer. (Griffin, JA 932). Even in those schools

where there is a uniformed officer, the majority of information

concerning students’ violent behavior and drug or weapon

possession comes to the attention of the school security officer

through the principal’s or teachers’ observations. (Griffin, JA

935-937; JA 1122). According to the Chief of School Security,

“[iJf it weren’t for the teachers we wouldn’t have these reports

[of student violence, drug or weapon possession] in front of

us.” (Griffin, JA 943; JA 1122 and 1141). Thus, teacher alertness

constitutes a frontline defense for student safety.

The testimony of Ms. Betty Sue Sparks, the Human

Resources Director for Knox County Schools and a former

principal, teacher and special education teacher at elementary,

middle and high school, shows that teacher alertness is key not

only to student safety but also to a positive school experience.

(Sparks, JA 812-814; 871-877). Consider a typical elementary

school day as described by Mr. Sparks. According to Ms. Sparks,

teachers have bus, cafeteria and recess duty. Teachers present

lessons, monitor group activities, take students to the rest room,

monitor their breaks, and take students to the library. Afternoon

activities include more lessons or special activities. Teachers

monitor students on specific behavior contracts and often fill

out daily reports for parents about their children’s behavior.

Teachers are expected to give positive reinforcement to the

children as well as discipline. (Sparks, JA 872-877). The overall

responsibility of the teacher is to ensure that students with whom

the teacher is entrusted have a safe, positive, meaningful school

experience. (Sparks, JA 878). Drug and weapon detection —

with respect to student possession — is also one of the

responsibilities of the Knox County teachers. (Sparks, JA 890).

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For these reasons, it is “important to have a sober, functioning

teacher in every classroom, doing the best he or she can do for

the children.” (Sparks, JA 878).

Knox County tests for drugs that impair teachers’ thoughts

and reactions in the classroom. (Sparks, JA 909-910).

With respect to the teaching of children, Ms. Sparks stated:

“. .. [have found that it is vitally important for me to be on my

toes every minute with every youngster that I am working with.”

(Sparks, JA 987). The emotional and physical health and well-

being of the students is of paramount concern. (Sparks, JA 908).

Underlining the importance of teacher alertness, Ms.

Henrietta Grant, a Knox County principal of a 763-student high

school, the smallest high school in the county, described the

hallways in her high school when all the students are changing

classes as a “mad house.” (Grant, JA 948-950). Ms. Grant

pointed out that in high school teachers monitor the halls during

class changes and monitor the cafeteria while some 300 students

are eating lunch. (Grant, JA 948-950).

The typical day of a high school teacher is no less hectic

than that of an elementary school teacher. High school teachers

teach three ninety-minute periods and monitor the halls, the

cafeteria and student assemblies. (Grant, JA 952-953). When

asked about teacher and principal responsibilities, Ms. Grant

said

I think they’re responsible for everything. I think

that you’re responsible for the students’ well-being,

you’re responsible for their learning, you’re

responsible for them getting off the bus or however

they get to school, you’re responsible while they’re

there, you’re responsible to see that they leave the

school safely. And I think you’re responsible for the

students the entire time they’re in the building. And

outside the building, I might add.

(Grant, JA 953-954). More poignantly, when asked for the

reasons why Knox County Schools needs a drug-free workplace

policy that includes teacher testing, Ms. Grant said

I think that my kids are the most important things in

our lives, and that we should be as clear-headed as

we can be when we’re working with those students.

I think that we’re responsible for them. And I don’t

feel that the teachers, anybody who works in the

school should not be clear-headed and clear-thinking

when they’re working with them.

(Grant, JA 953-954). When asked why clear-headedness is

important for teachers and principals, Ms. Grant said

[w]ell, many reasons. Safety: I would not want a

person working with a child whose reaction time

had been ... thrown off with a substance. I think

that it’s true that you react differently when you’re

clear-headed as opposed to when you're not clear-

headed, and I would hope that all of my teachers

would be able to act as quickly and as. . . they’d be

able to act in such a manner that would protect the

children if that were called for.

You know, I just want my folk to be as clear-headed

as they can be. Children are smarter than we are,

they out-think us, and it seems to me that we have

to be careful about being competent enough to work

with them. They’re just smarter than we are, they’re

thinking all the time. At the best you can do it’s hard

to keep up with them.

(Grant, JA 954-955).

During the school year, children spend the major part of

their waking hours at school. (Grant, JA 955). Echoing the

testimony of Ms. Grant, the District Court took judicial notice

that children are our most important asset and that teaching

children is important. (JA 956). In fact, the District Court noticed

that “[t]he most important thing in the world is getting our

children educated.” (JA 956). With respect to the importance of

teachers, Ms. Grant testified that teachers are “the” role models

for children. (Grant, JA 957). Finally, when asked if even a

momentary lapse of attention on the part of a teacher could

have serious, if not disastrous, tragic consequences for a student,

Ms. Grant answered: “Without a doubt.” (Grant, JA 958-959).

The potential for tragic consequences at school was also

highlighted during the testimony of Mr. Anderson, the chairman

of the Knox County Board of Education at the time the Board

adopted the 1994 Policy and a former elementary and high

school teacher. (Anderson, JA 994-998). Describing a time when

he prevented a fatal knifing, Mr. Anderson said

... when I was a teacher, I taught at Austin-East

High School, I was on bus duty. And a lot of times

in schools, you have less structured situations; bus

duty, lunch duty, chaperoned dances, trips. Well,

there was a bus came in, we were on split campuses

and a bus came in. There was something going on

on the bus and a child got off the bus and told me

there was a fight going on. I got on the bus, and as I

was working my way back to the middle of the bus

where the fight was going on I saw one young man

pull a knife and draw back to stab another young

man.

I grabbed the guy, he didn’t see it, and pulled him

| back, and the knife caught the kid right below his

heart, in the side, and punctured him there. If I had

been delayed one second or been one-tenth of a

second slow reacting, he probably would’ve been

stabbed in the heart.

And that, as always, I think about it every time we

have an opportunity to make sure that everybody’s

alert, that everybody’s judgment’s not impaired. And

it’s very important, I just think it’s very important

for that reason.

(Anderson, JA 996-997). With respect to momentary lapses of

attention, Mr. Anderson said

[o}h, I think momentary lapses are more important

than — the most important situation. Because things

happen so fast when you put seven hundred

teenagers in a school, you know, everyone together,

from all parts of the County.

(Anderson, JA 997). As Mr. Anderson concluded, in light of

the total school experience, “... a lot of things happen in

schools.” (Anderson, JA 998).

Research indicates that twenty-five percent (25%) of the

population uses dangerous drugs and that many have used drugs

on the job. (JA 812, 1309). With respect to the teaching

profession in particular, the District Court took judicial notice

that teachers are no different than any other profession.

(JA 859, 879-880). Likewise, Ms. Sparks, the Human Resources

Director, testified that she had no indication to believe that

teachers are any different than any other workplace or profession

in our society today. (Sparks, JA 880).

To ensure privacy, confidentiality, integrity and reliability,

the Policy establishes a testing protocol, appoints a physician

as the Medical Review Officer, assures confidentiality, and

incorporates the procedures set forth in the Medical Review

Officer Manual published by the National Institute on Drug

Abuse, U.S. Department of Health and Human Services.

(JA 1005; App. 17a-30a). The Policy requires that the laboratory

collecting the urine specimens and performing the tests do so

in accordance with applicable federal Department of

Baad a. ee

Transportation procedures to insure privacy, integrity, validity

and reliability. To ensure privacy, the Policy provides for non-

observance collection, unless otherwise warranted by specified

scientific findings concerning a specific sample. The drug testing

protocol requires the Enzyme-Multiplied Immunoassay

Technique (EMIT) screen to be followed by the gas

chromatography/mass spectrometry (GC/MS) technique for

those specimens identified as positive under the EMIT screen.

(JA 1005; App. 21a). The Policy provides for the confidentiality

of results and sets out specific confidential procedures for the

communication and retention of said results, separate’ from the

employee’s personnel file.’ (JA 1005; App. 17a-30a).

Recognizing the privacy interests of the employees, the

Policy contains strict requirements with regard to confidentiality.

(JA 1014). The Policy protects the confidentiality of the drug

testing results which }

5. The Policy also provides for alcohol testing. Under the written

Policy, the alcohol testing procedure involves the administering of a

breath analysis test by the Sheriff’s Department, followed by an alcohol

urine assay EMIT screen followed by a confirmatory gas

chromatography test on positive screens. The breath test is positive at

-02; the EMIT and GC/MS tests are positive at .04. Like the drug testing

procedures, the alcohol testing procedures follow the same privacy and

confidentiality protocol. (JA 1018-1019). Trial testimony revealed that

the Sheriff’s Department no longer operates the Breathalyzer test for

the Knox County School System. In practice, in cases of reasonable

suspicion, school security officers, employed by the Board and certified

to operate the Breathalyzer, operate the school system’s own

Breathalyzer. The School Security Office is not located in the Sheriff’s

Department. (Griffin, JA 1018-1019). Under the Policy, those results

are then conveyed to the Director of Personnel who, at that point, follows

the procedure for obtaining a urine specimen. (JA 1014). The Sixth

Circuit remanded the alcohol testing procedure to the District Court to

determine whether the blood alcoho! level of .02 is reasonably related

to the purpose of the testing. 158 F.3d at 386. The Board does not appeal

this ruling.

will be released by the MRO and the Director of

Personnel only upon the written consent of the

individual, except the results may be released and

relied upon by the Knox County Board of Education

in any administrative or court action by the employee

involving the drug test, or any discipline resulting

from a violation of this policy, including

employment and court proceedings.

(JA 1016-1017). The Policy requires the MRO to maintain the

substance screens in a secure manner and to disclose the results

to the Director of Personnel only to the extent necessary to

address any work-related safety risks occasioned by either the

drug or alcohol use. (JA 1014). The MRO reports to the

Personnel Director as follows: if the test is negative, he reports

a negative; if the test is positive for an illegal drug, the MRO

identifies the drug; if the test result is positive for a prescription

drug and the employee has no prescription, the MRO identifies

the drug; if, however, the test result is positive for a prescription

drug within prescription level ranges and the employee satisfies

the MRO that he has a valid prescription, the MRO tells the

Director of Personnel only that the employee had a prescription

drug but does not identify the drug; in this latter case, the

employee is actually considered “negative.” (JA 1016). If

substance screening shows a confirmed positive result for which

there is no current physician’s prescription, the MRO may

request a second confirming test on that specimen. (JA 1016).

In the case of post-offer, pre-employment testing for new

teachers, applicants are given a copy of the Policy in advance

of the physical. Applicants sign an acknowledgment of its

purpose prior to substance screening and consent to the summary

result being transmitted to the MRO and, if the MRO deems

necessary under the terms of the policy, to the Director of

Personnel. An applicant refusing to complete any part of the

drug testing procedure will not be considered a valid candidate

for employment and the refusal is deemed a withdrawal of the

individual’s application. The applicant may reapply after one

year and show proof of successful rehabilitation. (JA 1007,

1019).°

REASONS FOR DENYING THE WRIT

THE FOURTH AMENDMENT DOES NOT PROHIBIT

POST-OFFER, PRE-EMPLOYMENT SUSPICIONLESS

DRUG-TESTING OF NEW PUBLIC SCHOOL

TEACHERS WHOSE PROFESSION IS HIGHLY

REGULATED AND WHO, BY STATE LAW, STAND IN

LOCO PARENTIS WITH THE RESPONSIBILITY TO

PROTECT STUDENTS FROM HARM AND SECURE

ORDER IN THE SCHOOLS.

The Sixth Circuit correctly held that the Knox County

public school system’s post-offer, pre-employment suspicionless

drug testing of new teachers does not violate the Fourth

Amendment. 158 F.3d 361.’ Teachers in the Knox County public

6. With respect to discipline of current employees found under

the influence of drugs or alcohol pursuant to reasonable suspicion

testing, the policy states that “[e}mployees in violation of the provisions

of this Policy will be subject to disciplinary action up to and including

termination.” (JA 1013). Any disciplinary action must be carried out in

accordance with the due process requirements of Board Policy, state

law, and the Charters for Knox County, Tennessee, and the City of

Knoxville, where applicable. (JA 1021-1022). Petitioners do not

challenge the reasonable suspicion testing.

7. As the Sixth Circuit analyzed:

[i]t is now well-settled that drug testing which utilizes

urinalysis is a “search” that falls within the ambit of the

Fourth Amendment. See, e.g., Skinner, 489 U.S. at 617,

109 S. Ct. 1402 (the collection and testing of urine intrudes

upon expectations of privacy in such a way “that these

(Cont'd)

school system, by virtue of their legal obligation in loco parentis

and their state statutory obligations to protect the safety and

welfare of their students, hold “safety-sensitive” positions that

justify suspicionless post-offer, pre-employment (not random)

drug testing. By virtue of certain student conduct, threats to

student safety exist in the Knox County school system and

teachers must be alert to those threats. In upholding the Knox

County Schools’ suspicionless post-offer, pre-employment drug

testing of teachers, the Sixth Circuit correctly interpreted this

Court’s rulings in Skinner v. Railway Labor Executives’ Ass'n,

489 U.S. 602 (1989); Nat'l Treasury Employees Union v. Von

Raab, 489 U.S. 656 (1989); Vernonia School Dist. 475 v. Acton,

515 U.S. 656 (1995) and Chandler v. Miller, 520 U.S. 305

(1997).

Because it is well-settled that urinalysis drug-testing is a

“search” within the meaning of the Fourth Amendment, “‘it is

necessary to balance the individual’s privacy expectations

against the Government’s interest. . . .” Von Raab, 489 U.S. at

665. Thus, as this Court directed in Skinner; Von Raab; Vernonia

and Chandler, the threshold inquiry is whether the Knox County

Board of Education has a legitimate governmental interest in

(Cont'd)

intrusions must be deemed searches under the Fourth

Amendment.”).

158 F.3d at 371. However,

the Fourth Amendment does not proscribe all searches and

seizures, but only those that are unreasonable . . . Skinner,

489 U.S. at 619, 109 S. Ct. 1402 (cites omitted). The

reasonableness of a search “depends upon all of the

circumstances surrounding the search or seizure and the

nature of the search or seizure itself.” United States v.

Montoya de Hernandez, 473 U.S. 531, 537, 105 S. Ct.

3304, 87 L. Ed. 2d 381 (1985) (citing New Jersey v. T.L.O..,

469 U.S. 325, 337-342, 105 S. Ct. 733, 740-743, 83 L. Ed.

2d 720 (1985)).

158 F.3d at 371.

controlling the use of drugs by teachers in the workplace. The

follow-up inquiry is whether the Board’s policy balances the

teacher’s privacy expectations® against that governmental

interest.

Inasmuch as the law is well-settled on this issue, and

inasmuch as the Sixth Circuit has correctly applied this Court’s

rulings, further guidance on this subject is not necessary. The

instant case is not one for which certiorari is warranted,

especially in view of the fact that the duties of public school

teachers are governed by state, not federal, law. This Court has

recently denied certiorari in two student drug testing cases. Todd

v. Rush County Schools, 133 F.3d 984 (7" Cir. 1998), cert. den.,

119 S. Ct. 68 (1999); Willis v. Anderson Community School

Corp., 158 F.3d 415 (7" Cir. 1998), cert. den., 119 S. Ct. 1254

(1999). The Board urges this court to do likewise in the instant

case.

A. The Knox County Public Schools Have A Legitimate

Governmental Interest In Employing Drug-Free

Teachers.

The Sixth Circuit correctly found that there are

few governmental interests more important to a

community than that of insuring the safety and

security of its children while they are entrusted to

the care of teachers and administrators.

158 F.3d at 375. This government interest is shared by the

community:

Concomitant with this governmental interest is

the community’s interest in reasonably insuring that

those who are entrusted with the care of our children

will not be inclined to influence children — either

directly or by example — in the direction of illegal

8. Teachers do not challenge the protocol in their petition.

and dangerous activities which undermine values

which parents attempt to instill in children in the

home. Indeed, teachers occupy a singularly critical

and unique role in our society in that for a great

portion of a child’s life, they occupy a position of

immense direct influence on a child, with the

potential for both good and bad. Teachers and

administrators are not simply role models for

children (although we would certainly hope they

would be that). Through their own conduct and daily

direct interaction with children, they influence and

mold the perceptions, and thoughts and values of

children. Teachers and administrators are not some

distant societal role models, as in the case of the

Georgia political candidates in Chandler, rather, on

a daily basis, there is a direct nexus between the

jobs of teachers and administrators and the influence

they exert upon the children who are in their charge.

Indeed, directly influencing children is their job.

158 F.3d 361. Tennessee law recognizes this role and imposes

certain statutory duties on public school systems and teachers.

1. By state law, Knox County teachers act in loco parentis

and are responsible for the safety of public school students

subject to compulsory attendance.

The Sixth Circuit correctly affirmed the Board’s assessment

of Knox County Schools as no longer carefree’ and recognized

9. Referring to the recent tragic schoolyard shootings in Jonesboro,

Arkansas and Springfield, Oregon, the Sixth Circuit observed,

[i]ndeed we do not have to search beyond recent local and

national media headlines to understand that schools are,

unfortunately, too often turned into places in which children

are subjected to grave and even life-threatening dangers

where the split-second vigilance of teachers and

(Cont'd)

the teachers’ statutory duty to protect the students committed

to its care. (JA 1117, 1122, 1 141). In 1981, the State of Tennessee

enacted the School Security Act which recognized

the position of the schools in loco parentis and

the responsibility this places on principals and

teachers within each school to secure order and to

protect students from harm while in their

custody. (emphasis added).

Code of Tennessee, § 49-6-4203(b).'° In that Act, the Tennessee

General Assembly expressed its intent “to secure a safe

environment in which the education of the students of Tennessee

may occur.” '' Code of Tennessee, § 49-6-4203(a). At that time,

(Cont'd)

administrators, and the need for clear-headed thinking, is

absolutely critical to the safety of the school children.

158 F.3d at 378-379 at 23. More tragically, respondent now adds

Paducah, Kentucky, Littleton, Colorado and Conyers, Georgia to this

list.

10. This Court has

acknowledged that for many purposes “school authorities

ac(t] in loco parentis,” Bethel School Dist No. 403 v.

Fraser, 478 U.S. 675, 684, 92 L. Ed. 2d 549, 106 S. Ct.

3159 (1986), with the power and indeed the duty to

“inculcate the habits and manners of civility,” Jd., at 681,

92 L.Ed. 2d 549, 106 S. Ct. 3159 (internal quotation marks

omitted. )

Veronia, 515 U.S. at 655.

11. This Court has held the right to attend a public school is a

state-created, rather than a fundamental, federal constitutional right.

See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 35

(1973); Plyler v. Doe, 457 U.S. 202, 221 (1982). For the most part,

public schools are state and local community undertakings. Thus, the

State of Tennessee regulates and controls public education, consistent

(Cont’d)

the General Assembly found “a rising level of violent activity

and use of drugs is occurring in some public schools . . .”” and

that “removal of dangerous weapons, drug paraphernalia and

drugs from school property is necessary to lessen hazards

to students .. ””"? such that “searches of students themselves

may be necessary to protect the larger student body, ....”

because “[t]he presence on school property of students with

drugs in their bodies may pose a threat to the safety and well-

being of that student and other students... .”'’

§ 49-6-4203(d)(e)(1)(2)(4). Respecting the need for local

community control, the Act states

[i]ndividual circumstances and local particularities

require that individual principals must be relied on

to exercise their professionally trained judgments

(Cont'd)

with the requirements of receiving certain federal financial assistance.

The Tennessee Constitution recognizes the inherent value of education

and requires the General Assembly to provide the maintenance and

support of a system of free public schools. Tenn. Const. Art. XI, § 12.

As a result, public education in the State of Tennessee is a highly

regulated state industry. Code of Tennessee § 49-1-101, et seq. through

§ 49-50-1401, et seg. State law requires compulsory attendance for

children between the ages of seven and seventeen, inclusive. Code of

Tennessee § 49-6-3001(c)(1); regulates curriculum and report cards.

§ 49-6-1001, et seq., § 49-6-1201, et seq., § 49-6-1301 and § 49-6-901;

directs the implementation of drug abuse resistance education,

§ 49-1-402, et seq.; provides for school safety and security, § 49-1-214

and § 49-6-4201, et seq.; regulates school discipline, § 49-6-4011,

et seq. and § 49-6-4101; and governs teacher tenure, dismissal and

suspension. § 49-5-501, et seq. Absent discrimination, the privilege to

teach in the public schools is governed by state law. § 49-5-501, et seq.

See, e.g.,42 U.S.C. § 2000, et seq.; 29 U.S.C. § 621, et seqg.; 42 U.S.C.

§ 12101, et seq. Petitioner teachers do not allege discrimination in the

instant case.

12. The Tennessee legislature saw fit to take these steps in 1981;

subsequent events only further support these findings.

13. By analogy, the presence of teachers with drugs in their bodies

pose a similar threat.

a i eran mii ORAS CR aco

woe ee ee

in determining what action is appropriate within the

provisions of this part; ... .

§ 49-6-4203(e)(3).'* Acknowledging that teachers are the first

observers of student misconduct, the Act provides that a student

may be searched as a result of “information received from a

teacher ...” if such action is reasonable to the principal.

§ 49-6-4205(a).!°

The Tennessee General Assembly delegated its power to

“provide for the maintenance, support and eligibility standards

of a system of free public schools” to local “board[s] of

education elected by the people.” Code of Tennessee,

§ 49-2-201, et seq.; Tenn. Const. Art. XI, § 12. The Board has

the duty to employ teachers eligible for tenure.'®

§ 49-2-203(a)(1). Under Tennessee law, new teachers or teachers

new to a system serve a three year probationary period before

acquiring tenure. § 49-5-504. Even after attaining tenure, a

teacher may be dismissed by the Board for “incompetence,

inefficiency, neglect of duty, unprofessional conduct

and insubordination. ...” as defined under state law.

§§ 49-2-203(a)(7) and 49-5-511(a)(1)(2).'’ Unprofessional

14. In 1988, the Act was amended to allow drug testing of students

upon “reasonable indications.” § 49-6-4213. In 1989, students were

prohibited from carrying electronic pagers. § 49-6-4214. In 1994, the

search of students and student lockers was broadened for weapons and

drugs. §§ 49-6-4204 and 4205.

15. By 1996, the General Assembly recommended a zero tolerance

policy toward any student who engages in behavior involving drugs,

weapons or violence on school property. § 49-6-4216(b). The Knox

County Board of Education has adopted such a policy.

16. Subject to state approval, the local board of education has the

authority to set standards of employment over and above those required

by the state board of education. § 49-5-506.

17. Dismissal or suspension of a tenured teacher requires an

extensive fair hearing process and allows judicial review and appeal.

§§ 49-5-511, 512, 513.

conduct or “conduct unbecoming to a member of the teaching

profession” includes “improper use of narcotics or intoxicants.”

§ 49-5-501(3)(E). By state law, neither a new teacher on

probation nor a tenured teacher have an expectation of

employment or continued employment if improperly using

narcotics or intoxicants.

Under Tennessee law, public school teachers have statutory

duties and responsibilities in loco parentis to protect the safety

of students compelled to attend school. § 49-6-4203(b). Like

the railroad employees in Skinner, for teachers monitoring

students “even a momentary lapse in attention could have

disastrous consequences.” Skinner, 489 U.S. at 628. Like the

customs service agents in Von Raab, teachers have the statutory

responsibility to report student drug and weapon offenses and

should have unimpeachable integrity and judgment.

§ 49-6-4105(a). Like the athletes in Vernonia, teachers “go out

for the team,” expecting their conduct to be scrutinized.

§ 49-5-501, 511, 512, 153. Unlike the Georgia political

candidates in Chandler, teachers are not some distant societal

role models, but rather,

on a daily basis, there is a direct nexus between

the jobs of teachers ... and the influence they

exert upon the children who are in their charge.

(emphasis added).

158 F.3d at 375. As the Sixth Circuit correctly observed,

“{i]Jndeed, directly influencing children is their job.” 158 F.3d

at 375. In Vernonia, this Court recognized the special

responsibility of the schools to care for and direct students,

stating that

deterring drug use by our Nation’s school children

is at least as important as enhancing efficient

enforcement of the Nation’s law against the

importation of drugs, which was the governmental

concern in Von Raab ... or deterring drug use by

Pe ee a a ee

engineers and trainmen, which was the governmental

concern in Skinner. . .. Moreover, the necessity for

the State to act is magnified by the fact that this evil

is being visited not just upon individuals at large,

but upon children for whom it has undertaken a

special responsibility of care and direction.

515 U.S. at 661. In view of the schools’ special responsibility,

it is legitimate that Knox County test the new teachers who will

be teaching and influencing its school children. Further, the

testing of new teachers comes at an early time in the employment

relationship when the school system knows very little about

the new teacher. Given these considerations, Knox County has

a legitimate interest in employing drug free teachers. To

paraphrase this Court in Von Raab, the community should not

bear the risk that new teachers with impaired perception and

judgment will be caring for school children who are, by state

law, compelled to attend school.'* 489 U.S. at 671.

2. Knox County teachers hold “safety-sensitive” positions.

Not only does Tennessee law place public school teachers

in safety-sensitive positions, but the record evidence shows that

Knox County teachers hold, in fact, safety-sensitive positions

as that term is understood in the context of drug-testing. Under

Skinner, the test for whether employees hold safety sensitive

18. See also Strong v. Uniondale Union Free School Dist., 902

F.2d 208, 212 (2nd Cir. 1990) (school district can require tenured teacher

to provide medical records relevant to her month-long absence because

district has a strong interest in safeguarding the health and welfare of

the students in a teacher’s class); Daury v. Smith, 842 F.2d 9 (ist Cir.

1988) (recognized a legitimate public interest in providing a safe and

healthy educational environment for students in requiring a principal,

alleged to have put a “strangle-hold” on a student, to submit to a

psychiatric examination); Lyons v. Sullivan, 602 F.2d 7 (1st Cir.), cert.

den., 444 U.S. 876 (1979) (no constitutional infirmity in requiring

tenured teacher to place himself in the care of a psychiatrist as a

condition of his continued employment).

positions is whether the employees discharge duties such that

“even a momentary lapse of attention can have disastrous

consequences.” Skinner, 489 U.S. at 628.'°

The testimony of Knox County teachers and principals

revealed the myriad of duties and tasks they must discharge in

a typical school day with respect to the children in their care,

from classroom teaching to bus and cafeteria duty to recess.

(Sparks, JA 812-814, 871-878; Grant, JA 958-959; Anderson,

JA 004-998). Vested with these duties of caring for children

and teenagers, teachers are safety-sensitive because “even a

momentary lapse of attention can have disastrous

consequences.” Skinner, 489 U.S. at 628. Anderson’s testimony

of how his alert response saved the life of a student on the bus

is but one example of why even a momentary lapse of attention

on the part of a teacher can have disastrous consequences for a

student. (Anderson, JA 996-997). For this reason, teachers’

perceptions and judgments must not be impaired.

Acknowledging the unique role of teachers, the Sixth

Circuit correctly stated,

[jJust as the Customs agents in Von Raab must be

considered in their own unique context, so too must

the nature of the work and positions of school

teachers and administrators be viewed as unique.

19. As the Sixth Circuit noted, positions other than railroad

engineers and customs agents have been found safety-sensitive: nuclear

power plant workers, seamen operating oil tankers, a meter repairman

for a gas company, a firefighter and emergency medical technician, a

process technician at a petro-refining facility, police officers, a bus driver,

pipeline operators, airline industry personnel, correctional officers in

regular contact with inmates, Army civilian guards, civilian workers in

Army chemical weapons plant, mass transit workers. 158 F.3d at 377-

378, n.14 through 21. (citations omitted) See also Carelli v. Ginsburg,

956 F.2d 598 (6th Cir. 1992) (upheld drug testing of thoroughbred horse

trainers).

158 F.2d at 374. The record evidence reflects that teachers in

the Knox County Schools are the “frontline” of school security

and first-hand observers of student substance abuse and weapon

possession. (Griffin, JA 935-943). In 1996, there were

71 documented occurrences of student substance abuse and

28 recovered weapons. In 1993-94, there were 73 recovered

weapons. (JA 1117). As the Chief of Security testified, (“[i}f it

weren't for the teachers we wouldn’t have these reports in front

of us.”). (Griffin, JA 943). Thus, in approving the post-offer,

pre-employment drug test for new teachers, the Sixth Circuit

rightly concluded

the suspicionless testing regime is justified by the

unique role [teachers] play in the lives of school

children and the in loco parentis obligations imposed

upon them.

158 F.3d at 375.

Il.

THE FOURTH AMENDMENT DOES NOT REQUIRE A

STATISTICAL NEXUS BETWEEN STUDENT INJURIES

AND DRUG IMPAIRED TEACHERS OR A

PRONOUNCED DRUG PROBLEM AMONG A PUBLIC

SCHOOL SYSTEM’S TEACHERS TO JUSTIFY POST-

OFFER, PRE-EMPLOYMENT DRUG TESTING OF

NEW TEACHERS RESPONSIBLE FOR THE SAFETY

AND EDUCATION OF STUDENTS SUBJECT TO

COMPULSORY ATTENDANCE.

Petitioners, not the Sixth Circuit, misapprehend this Court’s

“teachings” (Pet. 22) with respect to the kind of nexus that must

be shown to justify drug testing. Petitioners believe that in order

to show a “special need” to justify suspicionless drug testing,

the Board must demonstrate a problem of drug abuse among its

teachers or offer evidence that an impaired teacher allowed harm

to befall the students. Petition at 15. In Von Raab, this Court

rejected a nexus approach requiring empirical evidence.

489 U.S. at 673-674. Finding unpersuasive the customs agents’

contentions that the drug testing program was unjustified

because it was not based on “any perceived drug problem among

Customs employees” and did not reveal “a significant number

of drug users” (no more than 5 employees out of 3,600 tested

positive for drugs), this Court stated: “(t]he mere circumstance

that all but a few of the employees tested are entirely innocent

of wrongdoing does not impugn the program’s validity.”

489 U.S. at 674-75. Focusing on the harm to be avoided rather

than statistics, this Court concluded:

[w]here, as here, the possible harm against which

the government seeks to guard is substantial, the

need to prevent its occurrence furnishes an ample

justification for reasonable searches calculated to

advance the Government’s goal.

Von Raab, 489 U.S. at 674-5. Again, in Chandler, this Court

acknowledged that a demonstrated problem of drug abuse is

“not in all cases necessary to the validity of a testing regime. . . .”

520 U.S. at 319. Although this Court indicated that such a

demonstrated drug problem would “shore up an assertion of

special need for a suspicionless general search program,” /d.,

this Court did not hold that a demonstrated drug problem among

a particular employee group is the only method by which the

government can justify its assertion of special need to test new

safety-sensitive employees. Rather, the nexus requirement is

met if “the possible harm against which the government seeks

to guard is substantial.” Von Raab, 489 U.S. at 674-675. As this

Court stated, “[t]he need to prevent its occurrence furnishes an

ample justification for reasonable searches calculated to advance

the government’s goal.” Jd.

In the case of Knox County teachers, this Court’s rulings

do not require the Board to “shore up” its assertion of special

need to drug test new teachers acting in loco parentis. To the

contrary, the nexus this Court requires is satisfied because the

State statutes imposing the duty to protect and the record

evidence shows that the possible harm to be avoided is

substantial. Thus, the Sixth Circuit correctly found that the

Board demonstrated “‘a clear, direct nexus . . . between the nature

of the employee’s duty and the nature of the feared violation.”

158 F.3d at 378, citing Harmon v. Thornburgh, 878 F.2d 484,

490 (D.C. Cir. 1989), cert. den. sub. nom., Bell y. Thornburgh,

493 U.S. 1056 (1990). The record evidence and the Tennessee

Statutes clarify the duties and responsibilities of teachers to

protect students from harm and report student offenses. The

record evidence shows the nature of the feared violation of that

duty, namely, harm to students and undetected weapons and

drugs. (Sparks, JA 812-814, 871-878; Grant, JA 948-959;

Anderson, JA 994-998; and Griffin, JA 931-943). The record

evidence shows that teachers are assigned bus, cafeteria and

recess duties to protect students from harm. If teachers are not

alert, students can be knifed on buses, (Anderson, JA 994-998),

OF possess weapons or drugs undetected. (Griffin, JA 931-943).

As this Court said in Von Raab, “[t]he need to prevent its

occurrence furnishes an ample justification for reasonable

searches calculated to advance the government’s goal.” 489 U.S.

at 674-675. The possible harm to school children, subject to

compulsory attendance, from drug-impaired teachers amply

justifies the Board’s policy of drug testing new teachers.

Empirical evidence of drug use or drug abuse among Knox

County teachers is not necessary under Von Raab or Chandler

in order to justify post-offer, pre-employment drug screening

of new teachers. The safety-sensitive nature of the tasks which

the teachers perform in a highly regulated state industry justifies

such screening. Tennessee law is heavily focused on the safety

and security of the public school environment for the protection

of the students who compulsorily attend. Required by federal

law to have a drug free workplace policy and by state law to

provide a safe and secure school environment, and aware of the

events which have occurred in its school system that require

teachers to be alert for the safety of its students, Knox County

has elected to screen new teachers before entrusting to them

the care of school children. Taking these matters into account,

the Sixth Circuit based its decision on the record evidence and

correctly followed the rulings of this Court in approving the

suspicionless post-offer, pre-employment drug testing of new

teachers in Knox County, Tennessee.

CONCLUSION

For the foregoing reasons, the Petition for Certiorari should

be denied.

Respectfully submitted,

RICHARD T. BEELER

JOHN E. OwINnGs

Counsel of Record

Mary ANN Ross STACKHOUSE

Knox County Law Director

Attorneys for Respondent

City County Building

Suite 612

400 Main Avenue

Knoxville, Tennessee 37902

(423) 215-2327

APPENDIX

“

ack

e ;

APPENDIX A — KNOX COUNTY BOARD OF

EDUCATION’S DRUG-FREE WORKPLACE

SUBSTANCE ABUSE POLICY

KNOX COUNTY BOARD OF EDUCATION’S

DRUG-FREE WORKPLACE

SUBSTANCE ABUSE POLICY

For Reference Only

Drug-Free Workplace Substance Abuse Policy

Section 3° 1.00

O01 Purposes

1. The Knox County Board of Education is committed

to a safe working environment, to making adequate

provisions for the safety and health of its employees at their

place of employment, and to the safety and health of the

Students we serve as well as the general public. The Knox

County Board of Education regards its personnel as

individuals as well as employees. Therefore, the Board

believes that alcoholism and drug addiction are illnesses

and should be treated as such. The Board further believes

that employees who develop alcoholism or other drug

addictions can be helped to recover and should be offered

appropriate assistance. It is in the best interest of the

employee and the board that when alcoholism or drug

addiction is present, it should be diagnosed and treated at

the earliest possible date. Confidential treatment of the

diagnosis and recovery process for alcoholism or drug

addiction is essential.

Appendix A

2. The Knox County Board of Education recognizes

that substance abuse in our nation and our community exacts

staggering costs in both human and economic terms.

Substance abuse can be reasonably expected to produce

impaired job performance, lost productivity, absenteeism,

accidents, wasted materials, lowered morale, rising health

care costs, and diminished interpersonal relationship skills.

The Knox County Board of Education and its employees

share a commitment to create and maintain a drug-free

workplace.

3. The Knox County Board of Education is responsible

for the instruction and well-being of the students entrusted

to its care. A consistent message needs to be communicated

by the Board that the use of illegal drugs, the abuse of

alcohol, and the misuse of prescription drugs are

unacceptable.

4. Provisions of the Federal Anti-Drug Act, 41

U.S.C.A. § 702, require federal grant recipients to establish

a drug-free workplace. Employees must be provided with a

statement notifying them of the prohibitions pertaining to

controlled substances, consequences of violations, and

compliance with the drug-free policy as a condition of

employment. Employers must inform employees of drug-

free requirements through an awareness program.

.02 Policy Goals and Objectives

1. To establish, promote, and maintain a safe, healthy,

working and learning environment for employees and

students.

RASS NBT AA A

Appendix A

2. To aid the affected employee in locating a

rehabilitation program for employees with a self-admitted

or detected substance abuse problem.

3. To promote the reputation of the Knox County

School System and its employees as responsible citizens of

public trust and employment.

4. To eliminate substance abuse problems in the

workplace.

5. To aid in the reduction of absenteeism, tardiness,

and apathetic job performance.

6. To provide a clear standard of job performance for

Knox County Schools employees.

7. To provide a consistent model of substance-free

behavior for students.

.03 Pre-Employment Testing

In the furtherance of achieving the Knox County Board

of Education’s goals and objectives as enumerated above,

all applicants being considered for employment positions

identified by the Knox County Board of Education as being

safety-sensitive will be required to submit to a urinalysis

test for the detection of the illegal use of drugs, as part of

the currently required post-offer, pre-employment physical.

Applicants for positions which require testing will be given

a copy of this policy in advance of the post-offer, pre-

employment physical.

Appendix A

Applicants will acknowledge having read or had this

policy explained to them and should understand that as a

condition of employment they are subject to its contents.

Applicants will sign an acknowledgement prior to substance

screening, permitting the summary result to be transmitted

to the Medical Review Officer and the Director of Personnel.

An applicant refusing to complete any part of the drug

testing procedure will not be considered a valid candidate

for employment with the Knox County Board of Education

and such will be considered as a withdrawal of the

individual’s application for employment. The applicant will

not be permitted to re-apply for employment with the Knox

County Board of Education for at least twelve (12) months

and not until the applicant shows proof of successful

completion of a drug rehabilitation program or proof that

the applicant has otherwise rehabilitated successfully and

is no longer engaging in illegal drug use.

If substance screening shows a confirmed positive result

for which there is no current physician’s prescription, a

second confirming test may be requested by the MRO. If

the first or any requested second confirming test is positive,

any job offer will be revoked.

The Knox County Board of Education has several

positions which are considered safety sensitive. In general,

these are positions where a single mistake by such employee

can create an immediate threat of serious harm to students

and fellow employees.

Safety-sensitive positions requiring post-offer, pre-

employment drug testing are: principal, assistant principal,

Appendix A

teacher, traveling teacher, teacher aide, substitute teacher,

school secretary, and school bus driver. The procedure for

testing these positions is contained in Section 3011.11 of

this Policy. Individuals applying for other positions shall

not be required to submit to a post-offer, pre-employment

substance screen.

-04 Employee Conduct

Substance abuse is the misuse or illicit use of alcohol,

drugs, or controlled substances, including marijuana, heroin,

or cocaine.

1. Illegal drugs

Drug abuse by employees interferes with the

educational and work process, and compromises the safety,

productivity, and well-being of staff and students.

Employees are expected to conduct themselves in a manner

consistent with the following provisions:

(1) Employees shall not engage in the illegal use of

drugs at any time and- such use will not be

tolerated. Further, employees on duty, or on Knox

County Board of Education property, or in

attendance at system-approved or school-related

functions will not manufacture, distribute,

dispense, possess or use illegal drugs or drug

paraphernalia, nor will they be under the

influence of such drugs.

Appendix A

(2) Anemployee convicted of any criminal drug law

(

)

shall notify the Knox County Schools Director

of Personnel no later than five (5) days after such

conviction. Within thirty (30) days after recei ving

notice of a conviction, Knox County Schools will

take appropriate disciplinary action and/or refer

the employee to an appropriate substance abuse

rehabilitation program.

Failure of the employee to report the conviction

within the time prescribed will lead to

disciplinary action up to and including discharge.

Convictions of a criminal drug law can result in

disciplinary action up to and including discharge.

In determining whether and to what extent an

employee will be disciplined or discharged for

the conviction of a criminal drug law, the Board

will consider the following factors: the degree to

which the nature of the criminal offense reduces

the Knox County Board of Education’s ability to

maintain a safe working environment; the degree

to which the nature of the criminal offense

unreasonably endangers the safety of other

employees and/or students; the degree to which

the conviction unreasonably undermines the

public confidence in the Knox County Board of

Education’s operations; the nature of the criminal

offense; the nature of the employee’s job with

the Knox County Board of Education; the

existence of any explanatory or mitigating facts

or circumstances; whether the employee promptly

reports the conviction; and any cther facts

Appendix A

relevant to the employee, including but not

limited to years to service and record of

performance with the Knox County Board of

Education.

2. Alcohol and Drugs

Alcohol, prescription and over-the-counter drugs are

legal and readily available. These drugs, when abused over

time or used in combination with one another, can result in

chemical dependency or poly-drug addiction. Employees

are expected to conduct themselves in a manner consistent

with the following provisions:

(1)

(2)

Employees on duty, or on Knox County Board of

Education property, or in attendance at system-

approved or school-related functions will not be

under any degree of intoxication or odor from

alcohol. Employees will not manufacture, sell, or

use alcoholic beverages or possess open alcoholic

beverage containers while on duty, or on Knox

County Board of Education property, or in

attendance at system approved or school related

functions.

Employees on duty will not use or take

prescription drugs above the level recommended

by the prescribing physician, and will not use

prescribed drugs for purposes other than those for

which they are intended. Employees will not

distribute or dispense such drugs except as

provided in Board Policy 6008.05, Part 3.

(3)

(4)

Appendix A

An employee convicted of any criminal drug law

involving the use of alcohol, prescription or

over-the-counter drugs shall notify the Knox

County Schools Director of Personnel no later

than (5) days after such conviction. Within thirty

(30) days after receiving notice of a conviction,

Knox County Schools will take appropriate

disciplinary action and/or refer the employee to

an appropriate substance abuse rehabilitation

program.

Failure of the employee to report the conviction

within the time prescribed will lead to disciplinary

action up to and including discharge. Convictions

of a criminal drug law involving the use of

alcohol, prescription or over-the-counter drugs

can result in disciplinary action up to and

including discharge. In determining whether and

to what extent an employee will be disciplined or

discharged for the conviction of a criminal drug

law involving the use of alcohol, prescription or

over-the-counter drugs, the Board will consider

the following factors: the degree to which the

nature of the criminal offense reduces the Knox

County Board of Education’s ability to maintain

a safe working environment; the degree to which

the nature of the criminal offense unreasonably

endangers the safety of other employees and/or

students; the degree to which the conviction

unreasonably undermines the public confidence

in the Knox County Board of Education’s

operations; the nature of the criminal offense; the

Appendix A

nature of the employee’s job with the Knox

County Board of Education; the existence of any

explanatory or mitigating facts or circumstances;

whether the employee promptly reports the

conviction; and any other facts relevant to the

employee, including but not limited to years to

service and record of performance with the Knox

County Board of Education.

05 Physical examination/screening based upon

reasonable suspicion.

Whenever the Knox County Board of Education,

through its Director of Personnel or the person authorized

to act as the Director in the Director’s absence, and/or the

Medical Review Officer, reasonably Suspects that an

employee’s work performance or on-the-job behavior may

have been affected in any way by illegal drugs or alcohol,

or that an employee has otherwise violated the Knox County

Board of Education Drug-Free Workplace Substance Abuse

Policy, the employee may be required to submit a breath

and/or urine sample for drug and alcohol testing. When a

supervisor observes or is notified of behaviors or events

that lead the supervisor to believe that the employee is in

violation of the Drug-Free Workplace Substance Abuse

Policy, the Supervisor should notify the Director of

Personnel.

An employee who is required to submit to drug/alcoho!

testing based upon reasonable suspicion and refuses will

be charged with insubordination and necessary procedures

taken to terminate the employee in accordance with Board

10a

Appendix A

Policy, state law, and the Charters of Knox County,

Tennessee, and the City of Knoxville, where applicable.

An employee who tests positive on a reasonable

suspicion test will be in violation of this Policy. Violation

of this Policy will constitute grounds for termination in

accordance with Board Policy, state law, and the Charters

of Knox County, Tennessee, and the City of Knoxville,

where applicable.

The Knox County Schools Director of Personnel, or

the person authorized to act as the Director in the Director’s

absence, or the Medical Review Officer are the only

individuals in the Knox County School System authorized

to make the determination that reasonable suspicion or cause

exists to order a drug screen and is the only individual in

the Knox County School System who may order an

employee to submit to a drug screen.

Two types of cases for which reasonable suspicion

procedures may be invoked are:

(1) Chronic case

Deteriorating job performance or changes

in personal traits characteristics where the

use of alcohol or drugs may be reasonably

suspected as the cause. These cases may

develop over a fairly long period of time.

Appendix A

(2) Acute Case

Appearing in a specific incident or

observation to then be under the present

influence of alcohol and/or drugs or

investigation of an accident where the use

of alcohol or drugs is reasonably suspected

to be a contributing cause. Regardless of any

previous history, immediate action is

necessary.

Circumstances under which substance screening

may be considered, in either the chronic or acute cases,

include but are not limited to the following:

1. Observed use, possession, or sale of illegal drugs

and/or use, possession, sale, or abuse of alcohol and/or the

illegal use or sale of prescription drugs.

2. Apparent physical state of impairment of motor

functions.

3. Marked changes in personal behavior not attributable

to other factors.

4. Employee involvement in or contribution to an

accident where the use of alcohol or drugs is reasonably

suspected or employee involvement in a pattern of repetitive

accidents, whether or not they involve actual or potential

injury.

12a

Appendix A

5. Violations of criminal drug law statutes involving

the use of illegal drugs, alcohol, or prescription drugs and/

or violations of drug statutes.

The circumstances under which substance screening

may be considered, as outlined above, are strictly limited

in time and place to employee conduct on duty or during

work hours, or on or in Knox County Board of Education

property, or at school system-approved or school related

functions.

Prior to substance screening, employees will sign an

acknowledgement that the summary result will be

transmitted to the Medical Review Officer and the Knox

County Schools Director of Personnel.

Drug and/or alcohol screening shall be conducted by

Board approved, independent, certified laboratories utilizing

recognized techniques and procedures, more specifically

described in the Drug and Alcohol Abuse Testing

Procedures contained in this Policy at Section 3011.11. A

breath analysis test may also be performed by the Knox

County Sheriff's Department.

.06 Promotion and Transfer Testing

When an employee applies for a position through the

Knox County Board of Education’s selection process for a

job that has been identified by the Knox County Board of

Education as being a safety-sensitive position, the employee

will be subject to drug testing in accordance with the

procedures contained in this Policy before the employee

i i ARS A A i a nM em eam

13a

Appendix A

will be considered a valid candidate for that job opening.

An employee who tests positive for illegal drugs on a

promotion/transfer test, will no longer be considered an

applicant for that position. Such employee will also be in

violation of this Policy. Violation of this Policy will

constitute grounds for immediate termination in accordance

with Board Policy, state law, and the Charters for Knox

County, Tennessee, and the City of Knoxville, where

applicable.

An employee may withdraw the application for the

position at any time up until the employee is scheduled for

promotion/transfer testing. Once an employee is scheduled

for promotion/transfer testing, if that employee refuses to

submit to the test, he/she will be disqualified for

consideration for the position and will be considered as

being insubordinate and subject to discipline. Under no

circumstances will this employee be considered as a viable

candidate for any future openings in this classification until

the employee has signed a release for drug testing at the

time of submitting the application for the position in

connection with a job posting.

07 Return to Duty Testing

An employee who has been given the Opportunity to

undergo rehabilitation for drugs will, as a condition of

returning to duty, be required to agree to a reasonable

follow-up testing established by the Director of Personnel.

The extent and duration of the follow-up testing will depend

upon the safety or security nature of the employee's

position, and the nature and extent of the employee’s

l4a

Appendix A

substance abuse problem. The Director of Personnel is to

review the conditions of continued employment with the

employee prior to the employee’s returning to work. Any

such condition for continued employment shall be given to

the employee in writing. The Director of Personnel may

consult with the employee’s rehabilitation program in

determining an appropriate follow-up testing program,

including, the frequency of any substance screening

contained in a follow-up testing program. In no instance

shall such screening be ordered by the Director of Personnel

more than one (1) time within a seventy-two (72) hour

period.

Any employee subject to return to duty testing that has

a confirmed positive drug test will be in violation of this

Policy. Violation of this Policy will constitute grounds for

immediate termination in accordance with Board Policy,

state law, and the Charters for Knox County, Tennessee,

and the City of Knoxville, where applicable.

.08 Rehabilitation

The Knox County Board of Education recognizes that

chemical dependency is an illness that may be successfully

treated.

1. It is the policy of the Knox County Schools, where

possible, in addition to appropriate personnel action, to refer

for rehabilitation an employee with a self-admitted or

detected drug or alcohol problem.

1Sa

Appendix A

2. Employees seeking medical attention for chemical

dependency will be entitled to benefits to the extent covered

under the Knox County Schools group medical insurance

plans, if they have chosen to be covered by said plans.

3. For employees enrolled in a formal treatment/

rehabilitation program, Knox County Schools may grant

sick leave and then annual leave until the same are exhausted

and then may grant leave without pay not to exceed one (1)

year.

4. The cost of the drug rehabilitation or treatment

program shall be borne by the employee and/or the

employee’s insurance provider.

The Knox County Board of Education strongly

encourages employees using illegal drugs or alcohol to

voluntarily refer themselves to a treatment program. A

voluntary referral is defined as being one that occurs prior

to any positive test for illegal drugs under this Policy, or

prior to any other violation of this Policy, including a

criminal conviction of that individual on a drug-related

offense. Employees are not subject to disciplinary action

for voluntarily referral to rehabilitation, even where

rehabilitation is for the use of illegal drugs or alcohol.

09 Disciplinary Action

1. Employees in violation of the provisions of this

policy will be subject to disciplinary action up to and

including termination.

16a

Appendix A

2. The fact that an employee has been referred for

assistance and his/her willingness or ability to rehabilitate

are appropriate considerations as to what, if any, personnel

action may be taken.

10 Confidentiality

Records that pertain to the Knox County Board of

Education employee required substance screens are

recognized to be private and sensitive records. They will

be maintained by the Medical Review Officer in a secure

fashion to insure confidentiality and privacy and be

disclosed to the Director of Personnel only to the extent

necessary to address any work-related safety risks

occasioned by either the drug or alcohol use. The Director

of Personnel will maintain any such records in a secure

fashion to insure confidentiality and privacy. Medical

records, and information relating directly thereto, will be

maintained in accordance with provisions of Tennessee law

and used with the highest regard for employee privacy

consistent with law and the purpose of achieving and

maintaining a drug-free workplace. All Personnel records

and information regarding referral, evaluation, substance

screen results and treatment will be maintained in a

confidential manner and no entries concerning such will be

placed in an employee’s personnel file.

-11 Drug and Alcohol Abuse Testing Procedures

1. Purpose

The purpose of this procedure is to establish

guidelines to be followed in the drug/alcohol testing of

17a

Appendix A

external applicants for safety-sensitive positions with the

Knox County Board of Education as well as Knox County

Board of Education employees.

2. Responsibility.

The Knox County Board of Education Director of

Personnel has the overall responsibility for this program.

3. Designation of Medical Review Officer.

The Knox County Board of Education has

designated Dr. Joseph W. Harb, Room 591, City-County

Building, 400 Main Avenue, Knoxville, Tennessee 37902,

as the Medical Review Officer (MRO). The Medical Review

Officer will be responsible for reviewing the results of drug

tests before they are reported to the Knox County Board of

Education’s Director of Personnel; reviewing and

interpreting each confirmed positive test to determine if

there is an alternative medical explanation for the positive;

conducting an interview with the individual testing positive;

reviewing the individual’s medical history and medical

records made available to the individual to determine if the

positive result was caused by legally prescribed medication;

requiring a re-test of the original specimen if the MRO

deems it necessary; and verifying that the laboratory report

and the specimen are correct. The MRO is expected to

follow the Medical Review Officer Manual published by

the U.S. Department of Health and Human Services for tests

conducted under this Policy.

18a

Appendix A

If the MRO determines that there is a legitimate

medical explanation for the positive test other than the use

of a prohibited drug, the MRO will conclude that the test is

negative and will not take any further action. If the MRO

concludes that a particular test is scientifically insufficient,

the MRO will conclude that the test is negative for that

individual. IF the MRO determines that there is no

legitimate explanation for the positive test other than use

of a prohibited drug, the MRO will communicate the test

results as a positive to the Director of Personnel. The results

of negative tests will be communicated by the MRO to the

Director of Personnel.

4. Designation of Laboratory.

The National Psychopharmacology Laboratory,

Inc. (NPL), 9320 Park West Blvd., Knoxville, Tennessee

has been selected to perform the testing on specimens

submitted. NPL will be responsible for performing the

required drug test in accordance with applicable Federal

Department of Transportation (DOT) procedures for

transportation workplace testing programs, 49 CFR part 40

and, more specifically, as contained in this policy. NPL will

also be responsible for properly handling specimens for

alcohol testing. NPL is a Substance Abuse and Mental

Health Services Administration (SAMHSA) certified lab

approved for DOT drug testing.

5. Collection Site.

The MPL Laboratory located at 9320 Park West

Blvd., Knoxville, Tennessee is the designated collection site

for collecting urine specimens.

19a

Appendix A

6. Authorization for Testing.

When the person reports to the collection site, the

drug and/or alcohol screening procedure will be explained

and the person will be asked to assist completing any

necessary forms. All persons subject to testing for any

reason will be asked to sign the necessary authorization

forms which will allow the test to be performed and for the

information to be provided to the Medical Review Officer

and the Director of Personnel about the required drug and/

or alcohol test.

7. Specimen retention.

The retention of specimens for possible future

analysis is the responsibility of NPL. NPL will retain all

specimens for a minimum period of one (1) week. At such

time, negative specimens will be discarded. Positive

specimens will be resealed, and retained in a separate and

secure area for a minimum of one (1) year. Within this one

(1) year period, the person tested, the Medical Review

Officer, or the Director of Personnel can request in writing

that the laboratory retain the sample for an additional

reasonable period specified in the request. If no proper

written request is received within the one (1) year period,

the sample may be discarded.

Any transfer of the original specimen to another

laboratory for reconfirmation of positive results will follow

the chain of custody procedures described in the regulations

contained in 49 CFR part 40.

20a

Appendix A

8. Notification and Administrative Processing of

Positive Results.

All analytical results, negative and positive, will

be reported by the laboratory to the MRO within an average

of five (5) days after receiving the specimens. The MRO

will review the individual’s medical history, questionnaire,

relevant bio-medical information, and interview the person

to determine if there is any satisfactory explanation for the

positive result. The Medical Review Officer may conduct

an additional medical interview with the individual and may

require the original specimen to be reanalyzed if necessary.

The MRO will advise the Director of Personnel of

any positive test results on external applicants where alcohol

and drug testing has been required, and where in the view

of the MRO, there is not legitimate medical explanation

for the confirmed positive test result other than the

unauthorized use of an iliegal drug.

The MRO will advise the Director of Personnel of

any positive drug or alcohol test results on employees that

were done for any reason in order that proper disciplinary

actions can be coordinated and will advise the Director of

Personnel of negative test results.

9. Record Retention — Confidentiality.

Records of drug test results are recognized to be

private and sensitive records, which will be maintained in

a secure fashion to insure confidentiality. Records showing

an employee passed a drug test will be kept for at least one

21a

Appendix A

(1) year. Records showing that an employee failed a drug

test, the type of test (e.g., reasonable suspicion), the

functions of the employee, the illegal drug(s) used by the

employee, and the disposition of each employee will be kept

for at least five (5) years. These records, or any of them,

may be maintained at the MRO or the Director of

Personnel’s discretion for an indefinite period of time

beyond the above specified minimums.

Information regarding an individual’s drug testing

results are confidential and will be released by the MRO

and the Director of Personnel only upon the written consent

of the individual, except that results may be released and

relied upon by the Knox County Board of Education in any

administrative or court action by the employee involving

the drug test, or any discipline resulting from a violation of

this Policy, including employment and court proceedings.

10. General Drug Testing Procedures:

A. Test Methods and Cutoff Levels:

The initial test performed on the urine at the

laboratory will be the Enzyme-Multiplied-Immunoassay

Technique (EMIT) screen which will be used to eliminate

negative urine specimens from further consideration. All

specimens identified as positive on the initial test shall be

confirmed using gas chromatography/mass spectrometry

(GC/MS) techniques at the cutoff values listed below. Tests

will screen for the drugs listed below. The cutoff levels

(positive tests) are as follows:

22a

Appendix A

EMIT GC/MS

1. Marijuana 100 ng/ml 15 ng/ml

2. Cocaine 300 ng/ml 150 ng/ml

3. Phencyclidine 25 ng/ml 25 ng/ml

4. Amphetamines 1,000 ng/ml 500 ng/ml

5. Methamphetamine 1,000 ng/ml 500 ng/ml

6. Phenobarbital 300 ng/ml 200 ng/ml

7. Secobarbital 300 ng/ml = 200 ng/ml

8. Amobarbital 300 ng/ml = =200 ng/ml

9. Butalbital 300 ng/ml = 200 ng/ml

10. Pentobarbital 300 ng/ml = =200 ng/ml

11. Propoxyphene 300 ng/ml = =300 ng/ml

12. Methadone 300 ng/ml = 250 ng/ml

13. Morphine 300 ng/ml = 300 ng/ml

14. Codeine 300 ng/ml 300 ng/ml

15. Monacetilmorphine 300 ng/ml 300 ng/ml

16. Benzodiazepines as:

(1) Diazepam 300 ng/ml 250 ng/ml

(2) Oxazepam 300 ng/ml 250 ng/ml

(3) Desmephyldiazepam 300ng/ml 250 ng/ml

B. Collection of Specimens.

Specimens will be collected in accordance with

Department of Transportation Procedures for Transportation

Workplace Drug Testing Programs 49 C.F.R. Part 40 which

are incorporated herein by reference, with the exceptions

as noted in this Policy. At least 30 ml of urine will be

required to complete the test or the test will be rejected and

must be reperformed.

23a

Appendix A

The designated collection site shall have an enclosure

within which private urination can occur, a toilet for

completion of urination and a source of water for washing

hands.

Procedures for collecting urine specimens shall allow

individual privacy unless there is reason to believe that a

particular individual may alter or substitute the specimen

as specified in 49 C.F.R. §40.25. Examples of reasonable

cause to believe a specimen will be altered or substituted

include: the presentation of a urine specimen that falls

outside the normal temperature range (90.0 deg. F - 100.0

deg. F); presentation of a specimen with a specific grativity

of less than 1.0003 and a creatinine concentration below

.2g/l; presentation of a specimen which contains the

presence of adulterants; observation of conduct clearly

indicating an attempt to substitute or adulterate the sample.

NPL will follow the Department of Transportation

Procedures for preparation for testing, chain of custody,

security, privacy, integrity, and identity of specimen, and

any necessary transportation to a laboratory. See 49 C.F.R.

Part 40 §40.23 and 40.25. The person submitting specimens

will complete the urine custody and control forms as

required by NPL. A copy of the “Drug Testing Custody

And Control Form” is contained in Appendix A to this

policy.

11. General Alcohol Testing Procedure:

The Knox County Sheriff’s Department will be

requested to perform and be responsible for administering

24a

Appendix A

a breath analysis test. If the breath analysis test is positive,

a second breath analysis test may be taken. If a test is to be

made for drugs, this specimen will be taken at the same

time that the alcohol specimen is taken, but will be

processed as a separate specimen.

A. Collection of Specimen:

Procedures for taking the urine specimen in the

event of a positive breath analysis for alcohol assay, will

follow the same procedures as outlined in Part 10 above for

the drug specimen and the specimen will be tightly sealed

immediately to avoid loss of volatile constituents.

B. Test Methods and Levels:

The breath analysis test level to be considered

positive will be .02 which would lead to a confirming test.

The alcohol urine assay will be an EMIT screening

followed by a confirmatory gas chromatography test on

positive screens. Either test will be considered positive if

the results are .04 or more.

12. Specific Testing Procedures:

A. Pre-Employment/Post Job Offer.

Interested individuals are made aware of the

requirements of drug testing for a specific position prior to

submitting an application for the position. Pre-employment

drug and alcohol testing will be required for the designated

25a

Appendix A

safety-sensitive positions. Applicants will be given an offer

of employment prior to the test. Employment is contingent

upon passing the test.

Applicants for positions which require drug and alcohol

testing will report to the designated collection site upon

notification by the Knox County Board of Education’s

Director of Personnel of the time and date to report.

NPL is responsible for gathering the medical history

of the applicant and will take the urine sample(s).

All applicants will be furnished a copy of the Drug Free

Workplace Substance Abuse Policy in advance of the drug

testing and alcohol testing, and will have the screening

procedure explained to them.

Applicants will be asked to sign an authorization for

the tests which will release the MRO to disclose the results

of the drug and alcohol test to the Director of Personnel. In

the event an applicant refuses to execute the appropriate

authorization or to submit to the drug and alcoho! tests,

NPL will suspend the procedures at that point and refer the

applicant to the Director of Personnel.

The MRO will review the analytical results of the drug

and alcohol tests, review the individual’s medical history

questionnaire, relevant biomedical information and

interview the applicant, either by phone or in person, to

determine whether here is any satisfactory explanation for

a positive result. The MRO may conduct an additional

medical interview with the individual, and may require the

26a

Appendix A

original specimen to be reanalyzed if necessary. The MRO

will advise the Director of Personnel of any positive test

results where there is not a legitimate explanation for the

positive test.

The MRO will advise the applicant that he or she has

tested positive and, if requested, will allow the applicant a

reasonable period, not to exceed three (3) days, to provide

additional medical evidence of a proper prescription for the

drug(s) which caused the positive test.

Nothing herein shall be construed as requiring the MRO

or the Director of Personnel to disclose to the applicant the

drug(s) for which the applicant tested positive. Rather, it is

the duty of the applicant to disclose to the MRO and, upon

request, to provide the MRO with evidence of all drugs taken

by prescription.

In the event of a positive test where there is not a

legitimate medical explanation, the Director of Personnel

will advise the applicant in accordance with the Drug-Free

Workplace Substance Abuse Policy of the conditions that

must be met before the individual could again by considered

for employment with the Knox County Board of Education.

The designated safety-sensitive positions subject to

testing are: principal, assistant principal, teacher, traveling

teacher, teacher aide, substitute teacher, school secretary,

and school bus driver.

AR te

27a

Appendix A

B. Reasonable Suspicion Testing:

This testing will be conducted for any employee

whenever the Knox County Board of Education, through

the Director of Personnel, or someone authorized in his/her

absence, and/or the MRO suspects that there is a violation

of the Knox County Board of Education Drug-Free

Workplace Substance Abuse Policy. The guidelines for

determining reasonable Suspicion, as noted above, will be

followed.

Once the determination has been made that an employee

is to be tested based upon reasonable suspicion, the Director

of Personnel should then transport the employee to the

collection site, or make other appropriate arrangements for

transportation. The collection site personnel should be

notified that the reason for testing is reasonable suspicion.

Upon arriving at the collection site, the employee will

be asked to sign a release for testing and to assist in

completing the necessary forms for testing. After the

employee has signed the necessary releases for testing, then

the standard procedures for drug and alcohol testing should

be followed by the collection site personnel.

Once the procedure has been completed, the employee

should be transported back to the Director of Personnel’s

office where the employee will be placed on administrative

leave with pay until the results of the tests are available

and given instructions to call the Director of Personnel each

work day, before the normal reporting time for that

employee, for further instructions.

28a

Appendix A

If the employee refuses to sign the release or refuses to

be tested by NPL, the employee should be advised that

refusal under Board Policy is insubordination. If the

employee continues to refuse, the employee should be

transported back to the Director of Personnel’s office. The

Director of Personnel will place the employee on

administrative leave with pay with instructions to call his/

her office before the normal reporting time for that employee

on the following work day.

If the Director of Personnel feels that the employee is

in no condition to operate a vehicle, then the employee

should be transported home. Under no circumstances should

the employee be allowed to drive, and if the employee

insists, the Director of Personnel should tell the employee

that if he/she gets in a vehicle to drive that he/she will call

the police or the Sheriff's Department and give them the

location, license plate number, etc.

In the event of positive test results, the MRO will

contact the Director of Personnel who will then review other

records of the employee and contact the Knox County Law

Director to work out proper disciplinary procedures, if any,

in accordance with Board Policy, state law, and the Charters

of Knox County, Tennessee, and City of Knoxville, where

applicable.

C. Promotion and Transfer Testing:

Once an employee has applied for a safety-sensitive

position within the Knox County Board of Education that

requires drug and alcohol testing and has successfully

29a

Appendix A

completed the written and skills testing being administered

for that job, then the employee is considered as one of the

qualified applicants for the position and will be subject to

the drug and alcohol testing procedures. Up to this point an

applicant can withdraw from consideration for the position

without sanctions.

The Director of Personnel will notify the employee on

the day the testing is to be accomplished as to the time for

the employee to be at the designated collection site. Since

this testing will be done before or after the employee’s

normal working hours, the employee must be contacted

before the end of that employee’s shift. Employees should

be tested as soon after their shift as possible.

Once the employee has been scheduled for testing, if

the employee refuses to be tested, the employee will be

considered insubordinate and subject to disciplinary

procedures. If an employee has been notified to go for

testing and fails to show up for the test, this will be

considered the same as refusal to test unless a medical

emergency or accident prevents the employee from testing,

in which case credible documentation will be required that

substantiates the reason for being absent from the testing.

If in the sole discretion of the Director of Personnel the

employee is allowed to be tested at a later date, the above

procedure will be repeated. In no case will an employee be

allowed more than one (1) opportunity to be rescheduled

for testing.

Employees who refuse to be tested, or who do not

appear for testing and do not have a documented credible

30a

Appendix A

reason for being absent from the testing time, will be subject

to disciplinary procedures, will cease to be considered as a

viable candidate for the current position and for any future

position openings in this classification until the employee

has signed a release for drug testing at the time of submitting

any future applications for this classification.

The collection site personnel should notify the Director

of Personnel in the event an employee refuses to test or

does not show for testing.

In the event of positive test results, the MRO will

contact the Director of Personnel who will then review other

records of the employee and contact the Knox County Law

Director to work out proper disciplinary procedures, if any,

in accordance with Board Policy, state law, and the Charters

of Knox County, Tennessee, and the City of Knoxville,

where applicable.

D. Return to Duty Testing:

This testing will apply when an employee who has been

given an opportunity for rehabilitation for drugs and or

alcohol is returned to duty. Prior to the employee coming

back on the job, the employee must be examined by the

MRO and a drug and/or alcohol test done which shows

negative results. The Director of Personnel may consult with

the MRO and the rehabilitation program officials to

determine an appropriate follow-up testing program

following Board policy and prepare a follow-up-program

which will include, among other things, the appropriate

period for testing as determined. This Agreement must be

3la

Appendix A

signed by the employee before the employee is allowed to

return to the job.

All testing done as a result of the above conditions will

be conducted in accordance with the procedures contained

herein for drug testing.

In the event of positive test results, the MRO will

contact the Director of Personnel who will contact the Knox

County Law Director to work out disciplinary procedures,

if any, in accordance with Board Policy, state law, and the

Charters for Knox County, Tennessee,-and the City of

Knoxville, where applicable.

E. Changes to Procedures:

This procedure may be amended from time to time to

facilitate changes in the Knox County Board of Education’s

Drug-Free Workplace Substance Abuse Policy as necessary.

-12 Definitions: As used in this Policy

1. “Illegal use of drugs” means the use of drugs, the

possession or distribution of which is unlawful under the

Controlled Substances Act (21 U.S.C. §812). Such term

does not include the use of a drug taken under the

supervision by a licensed healthcare professional, or other

uses authorized by the Controlled Substances Act.

2. “Drug” or “Illegal drug” means a controlled

substance as defined in Schedules I through V of Section

202 of the Controlled Substances Act.

32a

Appendix A

3. “Conviction” means a finding of guilt, including a

plea of no-contest, or imposition of sentence, or both, by

any judicial body charged with the responsibility to

determine violations of the federal or state criminal drug

statutes.

4. “Criminal Drug Law” means a federal or non-federal

criminal statute involving the manufacture, distribution,

dispensing, possession, or use of any controlled substance.

NOTE: ALL REFERENCED DOCUMENTS IN THIS

POLICY ARE AVAILABLE FOR INSPECTION IN

THE KNOX COUNTY BOARD OF EDUCATION’S

DIRECTOR OF PERSONNEL OFFICE.

’

;

33a

APPENDIX B — RELEVANT STATUTES

Tenn. Code § 49-2-203

49-2-203. Powers and duties [See the Compiler’s

Notes]. — (a) It is the duty of the local board of education

to:

(1) [See Compilers Notes] Elect, upon the

recommendation of the superintendent, teachers who have

attained or are eligible for tenure and fix the salaries of and

make written contracts with such teachers;

- (A) No individual shall be elected to an

interim contract unless the individual so elected

is to fill a vacancy created by a leave of absence

as set forth in § 49-5-702;

(B) All contracts with educational assistants

will be for nonteaching positions;

to direct supervision of certificated teachers

when directly involved in the instructional

program;

(D) No member of any local board of

education shall be eligible for election as a

teacher, or any other position under the board

Carrying with it any salary or compensation;

(2) Manage and control all public schools established

or that may be established under its jurisdiction;

34a

Appendix B

(3) In local education agencies which retain elected

superintendents, the board shall continue to employ janitors,

engineers, and such other persons as may be necessary to

care for school property, and fix their compensation;

(4) Purchase all supplies, furniture, fixtures and

material of every kind through the executive committee;

(A) All expenditures for such purposes

estimated to exceed five thousand dollars

($5,000) or more shall be made on competitive

bids, which shall be solicited by advertisement

in a newspaper of general circulation in the

county, except that the newspaper advertisement

may be waived in the event of any emergency.

School districts which have a purchasing division

may use a comprehensive vendor list for the

purpose of soliciting competitive bids; provided,

that the vendors on such list are given notice to

bid; and provided further, that such purchasing

division shall periodically advertise in a

newspaper of general circulation in the county

for vendors and shall update the list of vendors

following such advertisement;

(B) All purchases of less than five thousand

dollars ($5,000) may be made in the open market

without newspaper notice, but shall whenever

possible be based upon at least three (3)

competitive bids;

(C)(1) No county board of education shall

contract for the construction of school buildings

35a

Appendix B

or additions to existing buildings, the

expenditure for which is in excess of ten

thousand dollars ($10,000) except when such

contract be made after competitive bids. Public

notice shall be given at least ten (10) days in

advance of accepting bids for such construction,

and the board shall award the contract to the

lowest and best bidder. In the event no bid is

within the budgetary limits set by the board for

such construction, the board may negotiate with

the lowest and best bidder to bring the cost of

the construction within the funds available, with

the approval of the commissioner of education;

(2) Construction management services

which are provided for a fee and which involve

supervision of the planning, design, bid and

construction phases of the project, but not the

performance of actual construction work, are

deemed to be professional services and may be

performed by a qualified person on the basis of

recognized competence and integrity. The

provisions of this subdivision shall not be

construed to authorize or permit actual

construction work by a construction manager

who has been hired for a construction project or

to modify or suspend any competitive bid

Provisions of the law applicable to the

construction work which is under the supervision

of such construction manager as applicable only

under this section. Contracts for such services

shall be procured through competitive bids as

36a

Appendix B

provided in this subsection or by a request for

proposals process. The request for proposals

process will invite prospective proposers to

participate and will indicate the service

requirements and the factors used for evaluating

the proposals. Such factors shall include cost,

vendor’s qualification and any additional factor

or factors deemed relevant by the procuring

entity for procurement of the service; cost is not

to be the sole criteria for evaluation. The contract

for such services will be awarded to the best

evaluated, responsive proposer;

(3) A contract manager who provides

construction management services must be a

contractor licensed in Tennessee;

(D) No board of education shall be

precluded from purchasing materials and

employing labor for the construction of school

buildings or additions thereto;

(E) The provisions of subdivisions

(a)(4)(A), (B) and (D) apply to local boards of

education of all counties, municipalities and

special school districts; provided, that

subdivisions (a)(4)(A) and (B) shall not apply

to purchases by or for a county’s or metropolitan

government’s board of education in counties with

a population of not less than two hundred

thousand (200,000) according to any federal

census, so long as the county, through county or

37a

Appendix B

metropolitan government charter, private act, or

ordinance, establishes a procedure regarding

purchasing that provides for advertisement and

competitive bidding and sets a dollar amount for

each purchase requiring advertisement and

competitive bidding; and provided further, that

purchases of less than the dollar amount

requiring advertisement and competitive bidding

shall, wherever possible, be based upon at least

three (3) competitive bids.

(5) Order warrants drawn on the county trustee on

account of the elementary and the high school funds,

respectively;

(6) Visit the schools whenever, in the judgment of the

board, such visits are necessary;

(7) Except as otherwise provided in this title, dismiss

teachers, principals, supervisors, and other employees, upon

sufficient proof of improper conduct, inefficient Service,

or neglect of duty; provided, that no one shall be dismissed

without first having been given in writing due notice of the

charge or charges and an opportunity for defense;

(8) Suspend, dismiss or alternatively place pupils when

the progress or efficiency of the school makes it necessary

or when disruptive, threatening or...

*- * *

38a

Appendix B

ParT 5 — TEACHERS’ TENURE

Tenn. Code § 49-5-501

49-5-501. Definitions. — As used in this part, unless

the context otherwise requires:

(1) “Abolition of position” means a regular bona fide

elimination of a position for sufficient, just and

nondiscriminatory reasons;

(2) “Board” means the local board of education holding

jurisdiction in its respective territory. In the event that a

school system operates without a board of education, the

authority which performs the functions usually performed

by a board shall be indicated by the word “board”;

(3) “Conduct unbecoming to a member of the teaching

profession” may consist of, but not be limited to, one (1) or

more of the following:

(A) Immorality;

(B) Conviction of a felony or a crime

involving moral turpitude;

willful failure or refusal to pay one’s just and

honest debts;

(D) Disregard of the code of ethics of the

Tennessee Education Association in such manner

39a

Appendix B

as to make one obnoxious as a member of the

profession; or

(E) Improper use of narcotics or intoxicants;

(4) “Incompetence” means being incapable, lacking

adequate power, capacity or ability to Carry out the duties

and responsibilities of the position. This may apply to

physical, mental, educational, emotional or other personal

conditions. It may include lack of training or experience;

evident unfitness for service; physical, mental or emotional

condition making teacher unfit to instruct or associate with

children; or inability to command respect from subordinates

or to secure cooperation of those with whom the teacher

must work;

(5) “Inefficiency” means being below the standards of

efficiency maintained by others currently employed by the

board for similar work, or habitually tardy, inaccurate, or

wanting in effective performance of duties;

(6) “Insubordination” may consist of:

(A) Refusal or continued failure to obey the

school laws of Tennessee, or to comply with the

rules and regulations of the board, or to carry

out specific assignments made by the board, the

superintendent or the principal, each acting

within its own jurisdiction, when such rules,

regulations and assignments are reasonable and

not discriminatory;

40a

Appendix B

(B) Failure to participate in an in-service

training program as set up by the local board of

education and approved by the state board of

education;

overthrow the government of the United States;

(D) Refusal by the teacher to disclose to the

board whether or not such teacher is, or has been,

a member of the Communist or any other party

which advocates the overthrow of the

government;

(7) “Neglect of duty” means gross or repeated failure

to perform duties and responsibilities which reasonably can

be expected of one in such capacity, or continued unexcused

or unnecessary absence from duty;

(8) “Probation” is a condition and period of trial during

which a teacher is under observation to determine such

teacher’s fitness for tenure status;

(9) “Superintendent” refers to the local superintendent

of schools, or to any other officer performing the functions

of a superintendent;

(10) “Teacher” includes teachers, supervisors,

principals, superintendents and all other certificated

personnel employed by any local board of education, for

service in public, elementary and secondary schools in

4la

Appendix B

Tennessee, supported in whole or in part by state or federal

funds;

(11)(A) “Tenure” indicates the Statutory

requirements, conditions, relations and

provisions in this part, under which a teacher

employed by a board holds a position as a teacher

under the jurisdiction of the board.

Administrative and supervisory personnel shall

have tenure as teachers and not necessarily tenure

in the specific type of position in which they may

be employed;

(B) “Limited tenure” is a form of tenure

under which a teacher may have a position for a

limited period of time and may extend such

tenure for a like period of time by meeting certain

requirements set forth in this part;

condition of tenure, extending from the time

when the teacher acquires the status of permanent

tenure until such time as the teacher arrives at

the maximum age set forth in this part, resigns,

retires or is dismissed under provisions of this

part; and

(12) “Transfer” means removal from one (1) position

to another position under jurisdiction of the same board.

[Acts 1951, ch. 76, § 1 (Williams, .. .

+ *£ *

42a

Appendix B

Tenn. Code § 49-5-502

49-5-502. Construction with other statutes. —

(a) The Teachers’ Continuing Contract Law, § 49-5-409,

shall not be construed to be affected by the provisions of

this part, except that the continuing contract law shall not

apply to teachers who have acquired permanent or limited

tenure under this part.

(b)(1) This part shall not affect the operation of local

or private tenure acts in operation on March 1, 1951,

applying to counties, municipalities or special school

districts.

(2) This part shall not be operative in any such county,

municipality or special school district so long as such local

or private act remains in effect.

(3) This part shall become operative in any system

where there is, on March 1, 1951, a local tenure law in effect,

if and when the local law becomes inoperative. [Acts 1951,

ch. 76, §§ 14, 18 (Williams, §§ 2345-14, 2345.18);

modified; T.C.A. (orig. ed.), §§ 49-1418, 49-1419.]

Tenn. Code § 49-5-503

49-5-503. Types of tenure. — There are two (2) types

of tenure for teachers who are now or hereafter employed

in the public schools, as follows:

(1) “Limited tenure” applies to any teacher who is not

classified as having “permanent tenure,” but who, prior to

September 1, 1972:

43a

Appendix B

(A) Has completed two (2) years of college

(but less than bachelor’s degree), and holds a

valid professional license covering the grades or

Subjects taught, or holds a valid examination

license covering the grades or subjects taught

regardless of the number of years of college

completed;

(B) Completes a probationary period

of three (3) school years or not less than

twenty-seven (27) months within a five-year

period, the last school year to be as a regularly

employed teacher; and

service after the probationary period and

maintains continuous “limited tenure” status

thereafter; and

(2) “Permanent tenure” applies to any teacher who:

(A) Has a degree from an approved four-

year college or to any vocational teacher who

has the equivalent amount of training established

and licensed by the state board of education;

(B) Holds a valid professional license based

on training covering the Subjects or grades

taught;

three (3) school years or not less than twenty-

44a

Appendix B

seven (27) months within the last five-year

period, the last year to be employed as a regular

teacher; and

(D) Is reemployed by the board for service

after the probationary period. [Acts 1951, ch. 76,

§ 3 (Williams, § 2345.8); modified; Acts 1971,

ch. 22, §§ 1, 2; 1977, ch. 33, § 1; T.C.A. (orig.

ed.), § 49-1402; Acts 1987, ch. 308, § 25.]

Tenn. Code § 49-5-504

49-5-504. Probation. — (a) Any teacher, otherwise

qualified for “permanent tenure” status or “limited tenure”

status shall serve three (3) years or not less than twenty-

seven (27) months within a five-year period as a

probationary teacher before acquiring “permanent tenure”

status or “limited tenure” status.

(b) Upon completion of the probationary period, any

teacher who is reemployed or retained in the system is

entitled to the tenure status for which such teacher is

qualified by college training and licensing; provided, that

the superintendent shall notify the board prior to reelection

by the board that the teacher, if reelected, will attain tenure

status.

as provided in § 49-5-710, shall not be counted as a part of

the probationary period. [Acts 1951, ch. 76, §§ 4, 8

(Williams, §§ 2345.4, 2345.8); Acts 1965, ch. 195, § 1;

1973, ch. 298, § 1; T.C.A (orig. ed.), §§ 49-1403, 49-1406;

Acts 1987, ch. 308, § 26.]

45a

Appendix B

Tenn. Code § 49-5-505

49-5-505. Limited tenure. — (a) “Limited tenure”

status shall be for a period of three (3) years. Acquiring not

less than eighteen (18) quarter hours of college credit during

the three-year period of “limited tenure” entitles the teacher

to renewal of the teacher’s tenure status, and upon receiving

proper statement from the college, verifying credits

received, the board shall extend the teacher’s tenure status

for another three-year period.

(b) A limited tenure teacher shall become a permanent

tenure teacher when the teacher earns a bachelor’s degree

and has otherwise complied with the provisions of this part.

three-year period, to meet the foregoing requirements of

acquiring at least eighteen (18) quarter hours’ credit shall

automatically lose “limited tenure” status and shall not be

eligible to again attain “limited tenure” Status in any local

school system.

(d) Only those teachers who have attained “limited

: tenure” status prior to September 1, 1972, and who

continuously maintain the requirement of this section are

covered by the provisions of this section.

(e) The superintendent of each county, city and special

school system shall establish a roster of “limited tenure”

teachers in the superintendent’s respective school system

as of September 1, 1972, and shall provide a copy of the

roster to the commissioner of education and notify each

ARE SE enw: Pi abet Dla ea:

46a

Appendix B

person on the roster, prior to December 31, 1972, of the

provisions pertaining to retaining “limited tenure” status.

[Acts 1951, ch. 76, § 5 (Williams, § 2345.5); Acts 1967,

ch. 195, § 1; Acts 1971, ch. 22, §§ 3, 4; 1974, ch. 654, § 77;

T.C.A. (orig. ed.), § 49-1404. ]

Tenn. Code § 49-5-506

49-5-506. Local standards may apply. — The local

board of education has the authority to set standards of

employment or to maintain educational requirements of the

personnel in service over and above those required by the

state board of education whenever the board is in position

to support the superior program; provided, that such

requirements are general in their application and have the

approval of the state board of education. [Acts 1951, ch.

76, § 13 (Williams, § 2345.13); Acts 1961, ch. 226, § 1;

1963, ch. 236, § 1; T.C.A. (orig. ed.), § 49-1405. ]

Tenn. Code § 49-5-507

49-5-507. Retirement age. — A teacher’s tenure status

shall terminate as of July 1, following the sixty-fifth

anniversary of the teacher’s birth. [Acts 1951, ch. 76, § 12

(Williams, § 2345.12); Acts 1961, ch. 226, § 2; 1963, ch.

236, § 2; T.C.A. (orig. ed.), § 49-1407.]

Tenn. Code § 49-5-508

49-5-508. Breach of contract — Effect on tenure.

— (a) A teacher shall give the superintendent notice of

resignation at least thirty (30) days in advance of the

47a

Appendix B

effective date of the resignation. A teacher who fails to give

such notice, in the absence of justifiable mitigating

circumstances, shall forfeit al] tenure status under this part;

provided, that the board may waive the thirty (30) days’

notice requirement and permit a teacher to resign in good

standing.

(b) Any teacher who breaks a contract with a board of

education without a justifiable reason as listed in this section

shall not be given permanent tenure Status in any other

school system in this State, until such teacher has met all of

the requirements in such system for attaining such

permanent status plus the serving of five (5) continuous

years in lieu of the three (3) continuous years required in

§ 49-5-503; provided, that the local board of education

against which such teacher has broken a contract informs

the commissioner of education of such breach of contract

and requests the commissioner to so notify all local boards

of education in this state. Such local board of education

may later inform the commissioner that it is no longer

holding the breach of contract against the teacher, in which

event such local board of education shall request the

commissioner to so notify all local boards of education in

this state. If and when such local board of education informs

the commissioner that it is no longer holding the breach of

contract against the teacher, the penalty in this subsection

against such teacher shall immediately become ineffective,

null and void.

Piecw te, ne Se fe |)

break a contract with a local board of education are as

follows:

48a

Appendix B

(1) The incapacity on the part of the teacher to perform

the contract as evidenced by the certified statement of a

physician approved by the local board of education;

(2) The drafting of the teacher into military service by

a selective service board; or

(3) The release by the local board of education of the

teacher from the contract which the teacher has entered into

with such local board of education. [Acts 1951, ch. 76, § 9

(Williams, § 2345.9); Acts 1961, ch. 226, § 3; 1974, ch.

654, § 78; T.C.A. (orig. ed.), § 49-1408.]

Tenn. Code § 49-5-509

49-5-509. Teacher transferred to another system. —

Tenured teachers moving to another system shall serve the

regular probationary period in the new system. The local

board of education, upon the recommendation of the

superintendent, may waive this requirement and grant tenure

status or shorten the probationary period, as it sees fit. [Acts

1951, ch. 76, § 11 (Williams, § 2345.11); T.C.A. (orig. ed.),

§ 49-1409.]

Tenn. Code § 49-5-510

49-5-510. Transfers within system. — The

superintendent, when necessary to the efficient operation

of the school system, may transfer a teacher from one

location to another within the school system, or from one

type of work to another for which the teacher is qualified

and licensed; provided, that transfers shall be acted upon in

49a

Appendix B

Acts 1957, ch. 202, § 1; 1965, ch. 196, § 1; 1969, ch. 286,

Tenn. Code § 49-5-51]

49-5-511. Dismissal or suspension of teachers

generally, — (a)(1) No teacher Shall be dismissed or

suspended except as Provided in this part.

(2) The causes for which a teacher may be dismissed

are as follows: incompetence, inefficiency, neglect of duty,

unprofessional conduct and insubordination as defined in

§ 49-5-501.

(3) A superintendent may suspend a teacher at any time

that may seem necessary, pending investigation or final

disposition of a case before the board or an appeal. If

vindicated or reinstated, the teacher shall be paid the full

Salary for the period during which the teacher was

suspended.

(4) When charges are made to the board of education

against a teacher, charging the teacher with offenses which

would justify dismissal of the teacher under the terms of

this part, the charges shall be made in writing, specifically

Stating the offenses which are charged, and shall be signed

by the party or Parties making the charges.

50a

Appendix B

(5) If, in the opinion of the board, charges are of such

nature as to warrant the dismissal of the teacher, the

superintendent shall give the teacher a written notice of this

decision, together with a copy of the charges, and a copy of

a form which shall be provided by the commissioner of

education advising the teacher as to the teacher’s legal

duties, rights and recourse under the terms of this part.

(b)(1) When it becomes necessary to reduce the number

of teaching positions or nonlicensed positions in the system

because of a decrease in enrollment or for other good

reasons, the board shall be empowered to dismiss such

teachers or nonlicensed employees as may be necessary.

(2) The board shall give the teacher or nonlicensed

employee written notice of dismissal explaining fully the

circumstances or conditions making the dismissal necessary.

(3) A tenured teacher who has been dismissed because

of abolition of position shall be placed on a preferred list

for reemployment in the first vacancy the teacher is qualified

by training and experience to fill. Nothing in this subsection

shall be construed to deprive the board of the power to

determine the fitness of such teacher for reemployment in

such vacancy on the basis of the board’s evaluation of such

teacher’s competence, compatibility and suitability to

properly discharge the duties required in such vacancy

considered in the light of the best interest of the students in

the school where the vacancy exists. [Acts 1951, ch. 76,

§§ 2, 6, 7, 15 (Williams, §§ 2345.2, 2345.6, 2345.7,

2345.15); Acts 1955, ch. 343, § 2; T.C.A. (orig. ed.),

§§ 49-1410, 49-1412 — 49-1415; Acts 1989, ch. 197, § 1;

1990, ch. 948, § 23.]

Sla

Appendix B

Tenn. Code § 49-5-512

49-5-512. Dismissal or suspension — Hearing. —

(a) A teacher, having received notice of charges pursuant

to § 49-5-511, may, within thirty (30) days after receipt of

notice, demand a hearing before the board, as follows:

(1) The teacher shal] give written notice to the

superintendent of the teacher’s request for a hearing;

(2) The superintendent shall, within five (5) days after

receipt of request, indicate the place of such hearing and

set a convenient date, which date Shall not be later than

thirty (30) days following receipt of notice demanding a

hearing;

(3) The teacher may appear at the hearing and plead

the teacher’s cause in person or by counsel;

(4) The teacher may present witnesses, and shall have

full opportunity to present the teacher’s contentions and to

support them with evidence and argument. The teacher shall

be allowed a full, complete, and impartial hearing before

the board, including the right to have evidence deemed

relevant by the teacher included in the record of the hearing,

even if objected to by the person conducting the hearing;

(5) The chair of the board conducting the hearing is

hereby empowered to issue subpoenas for witnesses to

compel their attendance at hearings authorized ‘under this

section. All parties to the proceeding shall have the right to

have subpoenas issued by the chair of the board to compel

52a

Appendix B

the attendance of all witnesses deemed by such parties to

be necessary, for a full and complete hearing. All witnesses

shall be entitled to the witness fees and mileage provided

by law for legal witnesses, which fees and mileage shall be

paid as a part of the costs of such proceeding. The costs of

such proceeding shall be paid by the losing party;

(6) The chair of the board shall administer oaths to

witnesses, who shall testify under oath;

(7) A record of the hearing, either by transcript,

recording, or as is otherwise agreed by the parties, shall be

prepared, if the action of the board is appealed, and all

actions of the board shall be reduced to writing and included

in the record, together with all evidence otherwise

submitted;

(8) On request of either party to the trial, witnesses

may be barred from the hearing except as they are called to

testify. The hearing may be private at the request of the

teacher or in the discretion of the board; and

(9) The board shall within ten (10) days decide what

disposition to make of the case and shall immediately

thereafter give the teacher written notice of its findings and

decision.

(b) The superintendent or other school officials shall

not be held liable, personally or officially, when performing

their duties in prosecuting charges against any teacher or

teachers under this part. [Acts 1951, ch. 76, § 16 (Williams,

§ 2345.16); Acts 1972, ch. 588, § 1; T.C.A. (orig. ed.),

§ 49-1416; Acts 1992, ch. 535, § 83.]

53a

Appendix B

Tenn. Code § 49-5-513

49-5-513. Judicial review. — (a) A teacher under

“permanent tenure” or “limited tenure” status who is

dismissed or suspended by action of the board may petition

for a writ of certiorari from the chancery court of the county

where the teacher is employed.

(b) The petition shall be filed within thirty (30) days

from the receipt by the teacher of notice of the decision of

the board. The petition shall state briefly the issues involved

in the cause, the substance of the order of the board, or the

respects in which the petitioner claims the order of the board

is erroneous, and praying for an accordant review. The

petition shall be addressed to the presiding chancellor and

shall name as defendants the members of the board and such

other parties of record, if such, as were involved in the

hearing before the board.

chancery suits or oaths of Paupers in lieu.

(d) Upon the filing of the petition, the clerk and master

shall immediately send, by registered return receipt mail,

to the chair of the board, a notice of the filing of the petition

and a certified copy thereof. The clerk shall also send a

similar notice to the last known post office address of each

other party named as defendant. In lieu of notice by

registered mail, subpoena to answer may be served

personally on each defendant, as in other chancery cases.

(e) The filing of such petition shall suspend the order

of the board pending a decision by the chancellor, but the

54a

Appendix B

teacher shall not be permitted to return to teaching pending

final disposition of the appeal.

(f) All defendants named in the petition, desiring to

make defense, shall do so by answer (in which grounds of

demurrer shall be incorporated) to the petition within thirty

(30) days from the date of the filing of the petition, unless

the time be extended by the court. Any other person who

may be affected by the decision to be made by the court

may, upon proper leave given, intervene and file an answer

in the cause. Amendments may be granted as in other

chancery procedure.

(g) The cause shall stand for trial and shall be heard

and determined at the earliest practical date, as one having

precedence over other litigation, except suits involving state,

county or municipal revenue. The review of the court shall

be limited to the written record of the hearing before the

board and any evidence or exhibits submitted at such

hearing. Additional evidence or testimony shall not be

admitted except as to establish arbitrary or capricious action

or violation of statutory or constitutional rights by the board.

(h) The chancellor shall reduce the chancellor’s

findings of fact and conclusions of law to writing and make

them parts of the record.

(i) Any party dissatisfied with the decree of the court

may appeal as provided by the Tennessee Rules of Appellate

Procedure, where the cause shall be heard on the transcript

of the record from the chancery court. [Acts 1951, ch. 76,

§ 17 (Williams, § 2345.17); Acts 1981, ch. 449, § 2; T.C.A.

(orig. ed.), § 49-1417; Acts 1992, ch. 535, § 83; 1992, ch.

952, § 6.]

55a

Appendix B

Tenn. Code § 49-5-514

49-5-514. Merger of local with State tenure system.

— (a)(1) Should it be desired to incorporate any local

teacher tenure system into the state system, the board having

jurisdiction over the teachers under such local system shall

publish in some newspaper of general circulation in the town

or county in which such local tenure System is located a

notice of its intent to apply for admission to the state teache-

. tenure system, and, in such notice, shall fix the date for a

hearing thereon, which date shall not be less than ten (10)

days after the first publication of the notice.

_ (2) Upon the day fixed by such notice for such hearing,

which hearing may be adjourned from time to time if

deemed necessary, the board shall hear interested parties

who shall have the right to appear in person or by counsel

upon the advisability of such entry or merger into the state

system.

(3) After the local board of education concludes its

hearing, the board shall conduct a referendum of the teachers

within the local teacher tenure system, and if a majority of

the teachers vote in favor of merging with the state system,

then the board shall request such merger and shall forward

a certified copy of the result of the referendum to the

commissioner of education for consideration.

(4) If the commissioner should approve such merger,

then the commissioner shall give proper notice thereof and

at the end of ten (10) days from the giving of such public

notice of acceptance, such local tenure system shall be

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Appendix B

merged with and become a part of the state teacher tenure

system, and the members of such local tenure system shall

thereupon be entitled to all the benefits of such state tenure

system to the same extent as though they had been members

thereof from its inception.

(b) As used in this section:

(1) “Board” means any county board of education in a

county operating under a local teacher tenure act or any

municipal board of education in a city operating under such

act; and

(2) “Local teacher tenure systems” means any teacher

tenure system applicable only to a county or to a city or

town and authorized by special act of the general assembly.

[Acts 1953, ch. 263, §§ 1, 2 (Williams, § 2345.19); Acts

1957, ch. 179, § 1; T.C.A. (orig. ed.), § 49-1420.]

Tenn. Code § 49-5-515

49-5-515. Establishment of system for teachers not

previously covered. — (a) The state board of education is

hereby authorized and directed to establish a system of

tenure for teachers in schools and institutions under its

jurisdiction.

(b) The board shall promulgate and publish reasonable

rules and regulations for the establishment of a tenure

system for such teachers, and has the power to promulgate

and publish such rules and regulations as are deemed

reasonably necessary for the establishment of such tenure

57a

Appendix B

system, which shall include, but not be limited to, standards

and requirements concerning:

(1) The minimum qualifications of teachers eligible for

tenure;

(2) The types of tenure;

(3) Leaves of absence;

(4) Time of termination of tenure;

(5) Transfers within the system;

(6) Credit for time served in other school systems

within the state:

(7) Grounds and procedures concerning suspensions

and dismissals;

(8) Investigations;

(9) Suspensions pending investigations: and

(10) Such other subjects as are deemed by the board

to be reasonably related to teacher’s tenure.

formal resolution by a majority of the membership, and the

same shall be signed by a majority of the members of the

state board of education as certified by the chair and attested

by the executive secretary of the board, and otherwise they

58a

Appendix B

shall be approved and filed in the manner required by the

Uniform Administrative Procedures Act, compiled in title

4, chapter 5.

(d) After giving written notice of charges against any

teacher, the board shall hold a hearing in the same manner

and shall have the same powers as provided in § 49-5-512;

provided, that where such section refers to the

superintendent, for the purpose of this part, reference shall

be made to the chair of the state board of education.

(e) A teacher shall be entitled to a judicial review of

the action of the board for the same purposes and in the

same manner provided by § 49-5-513.

(f) As used in this section, “teacher” means any person

employed by the state board of education in a full-time

position as an administrative officer or teacher in a school

or other educational institution except a college or

university; provided, that “teacher,” as defined in this

section, does not apply to the principal or chief

administrative officer of such school or institution.

(g) No teacher under the provisions of this section shall

be guaranteed continuity of employment in a particular

assignment or position. [Acts 1967, ch. 210, §§ 1-3; T.C.A.

§§ 49-1423 — 49-1425.]

* * *

59a

Appendix B

PART 34 — SusPENSION OF STUDENTS

Tenn. Code § 49-6-3401

49-6-3401. Suspension of students. — (a) Any

principal, principal-teacher or assistant principal of any

public school in this state is authorized to suspend a pupil

from attendance at such school, including its sponsored

activities, or from riding a school bus, for good and

sufficient reasons. Good and sufficient reasons for such

suspension include, but are not limited to:

(1) Willful and persistent violation of the rules of the

school or truancy;

(2) Immoral or disreputable conduct or vulgar or

profane language;

(3) Violence or threatened violence against the person

of any personnel attending or assigned to any public school;

(4) Willful or malicious damage to real or personal

property of the school, or the property of any person

attending or assigned to the school;

(5) Inciting, advising or counseling of others to engage

in any of the acts hereinbefore enumerated;

(6) Marking, defacing or destroying school property;

(7) Possession of a pistol, gun or firearm on school

property;

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Appendix B

(8) Possession of a knife, etc., as defined in

§ 39-17-1301 on school property;

(9) Assaulting a principal or teacher with vulgar,

obscene or threatening language;

(10) Unlawful use or possession of barbital or legend

drugs, as defined in § 53-10-101;

(11) Any other conduct prejudicial to good order or

discipline in any public school; and

(12) Off-campus criminal behavior which results in the

student being legally charged with a felony and the

student’s continued presence in school poses a danger to

persons or property or disrupts the educational process.

(b)(1) Any principal, principal-teacher or assistant

principal may suspend any pupil from attendance at a

specific class, classes or school-sponsored activity without

suspending such pupil from attendance at school pursuant

to an in-school suspension policy adopted by the local board

of education. Good and sufficient reasons for such in-school

suspension include, but are not limited to:

(A) Behavior which adversely affects the

safety and well-being of other pupils;

(B) Behavior which disrupts a class or

school sponsored activity; or

discipline occurring in class, during school-

sponsored activities or on the school campus.

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Appendix B

(2) In-school suspension policies shall provide that

pupils given an in-school Suspension in excess of one (1)

day from classes shall attend either special classes attended

only by students guilty of misconduct or be placed in an

isolated area appropriate for study. Students given in-school

suspension shall be required to complete academic

requirements.

(c)(1) Except in an emergency, no principal, principal-

teacher or assistant principal shall suspend any student until

that student has been advised of the nature of the student’s

misconduct, questioned about it, and allowed to give an

explanation.

(2) Upon suspension of any student other than for

in-school suspension of one (1) day or less, the principal

shall, within twenty-four (24) hours, notify the parent or

guardian and the superintendent or the superintendent’s

designee of:

(A) The suspension, which shall be for a

period of no more than ten (10) days;

(B) The cause for the suspension; and

may include, at the request of either party, a

meeting of the parent or guardian, student and

principal.

(3) Ifthe suspension is for more than five (5) days, the

principal shall develop and implement a plan for improving

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Appendix B

the behavior which shall be made available for review by

the superintendent upon request.

(4)(A) If, at the time of the suspension, the

principal, principal-teacher or assistant principal

determines that an offense has been committed

which would justify a suspension for more than

ten (10) days, such person may suspend a student

unconditionally for a specified period of time or

upon such terms and conditions as are deemed

reasonable.

(B) The principal, principal-teacher or

assistant principal shall immediately give written

or actual notice to the parent or guardian and the

student of the right to appeal the decision to

suspend for more than ten (10) days. All appeals

must be filed, orally or in writing, within five

(5) days after receipt of the notice and may be

filed by the parent or guardian, the student or

any person holding a teaching license who is

employed by the school system if requested by

the student.

to the board of education or to a disciplinary

hearing authority appointed by the board. The

disciplinary hearing authority, if appointed, shall

consist of at least one (1) licensed employee of

the local education agency, but no more than the

number of members of the local board.

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Appendix B

(D) The hearing shall be held no later than

ten (10) days after the beginning of the

suspension. The local board of education or the

disciplinary hearing authority shall give written

notice of the time and place of the hearing to the

parent or guardian, the student and the school

official designated above who ordered the

suspension. Notice shall also be given to the local

education agency employee referenced in

subdivision (c)(4)(B) who requests a hearing on

behalf of a suspended student.

(5) After the hearing, the board of education or the

disciplinary hearing authority may affirm the decision of

the principal, order removal of the suspension

unconditionally or upon such terms and conditions as it

deems reasonable, assign the student to an alternative

program, or night school, or suspend the student for a

specified period of time.

(6) If the decision is determined by a disciplinary

hearing authority, a written record of the proceedings,

including a summary of the facts and the reasons supporting

the decision, shall be made by the disciplinary hearing

authority. The student, principal, principal-teacher or

assistant principal may within five (5) days of the decision

request review by the board of education; provided, that

local school board policy may require an appeal to the

superintendent prior to a request for review to the board.

Absent a timely appeal, the decision shall be final. The board

of education, based upon a review of the record, may grant

or deny a request for a board hearing and may affirm or

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Appendix B

overturn the decision of the hearing authority with or

without a hearing before the board; provided, that the board

may not impose a more severe penalty than that imposed

by the hearing authority without first providing an

opportunity for a hearing before the board. The action of

the board of education shall be final.

(d) In the event the suspension occurs during the last

ten (10) days of any term or semester, the pupil may be

permitted to take such final examinations or submit such

required work as is necessary to complete the course of

instruction for that semester, subject to the action of the

principal, or the final action of the board of education upon

any appeal from an order of a principal continuing a

suspension. |

(e) Students under in-school suspension shall be

recorded as constituting a part of the public school

attendance in the same manner as students who attend

regular classes.

(f) Nothing in this title shall require a local education

agency to enroll a student who is under suspension and/or

expelled in a local education agency either in Tennessee or

another state. The superintendent for the school system in

which the suspended student requests enrollment shall make

a recommendation to the local board of education to approve

or deny the request. Such recommendation shall occur only

after investigation of the facts surrounding the suspension

from the former school system. If the recommendation is

to deny admission, and if the local board approves the

superintendent’s recommendation, the superintendent shall,

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Appendix B

on behalf of the board of education, notify the commissioner

of the decision. Nothing in this subsection shall affect

children in state custody or their enrollment in any local

education agency. Any local education agency which

accepts enrollment of a student from another local education

agency may dismiss such student if it is determined

subsequent to enrollment that the student had been

suspended or expelled by the other local education agency.

(g) Notwithstanding the foregoing or any other law to

the contrary, a pupil determined to have brought to school

or to be in unauthorized POssession on school property ofa

firearm, as defined in 18 U.S.C. § 921, shall be expelled

for a period of not less than one (1) year, except that the

director or superintendent may modify this expulsion on a

case-by-case basis. For Purposes of this subsection,

“expelled” means removed from the pupil’s regular school

program at the location where the violation occurred or

removed from school attendance altogether, as determined

by the school official. [Acts 1925, ch. 115, § 8; Shan. Supp.,

§ 1487a52; Code 1932, § 2341; Acts 1959, ch. 94, § 1;

1970, ch. 344, § 1; 1970, ch. 580, § 1; 1974, ch. 654, § 69;

1981, ch. 117, §§ 1-7; 1982, ch. 608, §§ 1, 2; T.C.A. (orig.

ed.), § 49-1309; Acts 1986, ch. 671, § 1; 1988, ch. 646, § 1;

1991, ch. 382, §§ 1, 2; 1991, ch. 411, § 1; 1992, ch. 949,

§ 1; 1993, ch. 383, § 1; 1995, ch. 268, § 1; 1995, ch. 365,

§ 1; 1998, ch. 830, § 1.]

66a

Appendix B

Tenn. Code § 49-6-4011

49-6-4011. Short title. — This part shall be known

and may be cited as the “Student and Employee Safe

Environment Act of 1996.” [Acts 1996, ch. 988, § 2.]

Tenn. Code § 49-6-4012

49-6-4012. Formulation and administration of

behavior and discipline codes. — (a) The governing body

of each local education agency shall be responsible for

formulating a code of acceptable behavior and discipline

to apply to the students in each school operated by such

local education agency.

(b) The superintendent or other administrative head of

the local education agency shall be responsible for overall

implementation and supervision, and each school principal

shall be responsible for administration and implementation

within that school.

shall review and, if necessary, redraft existing behavior and

discipline codes prior to January 1, 1997. In formulating

the behavior and discipline codes, the governing body of

each local education agency shall seek recommendations

from parents, employees, law enforcement personnel, and

youth-related agencies in the community. [Acts 1996, ch.

988, § 3.]

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Appendix B

Tenn. Code § 49-6-4013

49-6-4013. Code contents. — Each code shall contain

the type of behavior expected from each student, the

consequences of failure to obey such standards, and the

importance of the standards to the maintenance of a safe

learning environment where orderly learning is possible and

encouraged. Each code shall address the topics of language

used by students, respect for all school employees, fighting,

threats, weapons on school property or at school functions,

damage to the property or person of others, misuse or

destruction of school property, drug or alcohol abuse, the

sale or distribution of drugs or alcohol, student conduct on

school property, conduct in classes, and such other subjects

as the local governing body shall choose to include. [Acts

1996, ch. 988, § 4.]

Tenn. Code § 49-6-4014

49-6-4014. Uniform and fair application of codes.

— The principal of each school shall apply the code

uniformly and fairly to each student at the school without

partiality or discrimination. [Acts 1996, ch. 988, § 5.]

Tenn. Code § 49-6-4015

49-6-4015. Different codes for different classes of

schools. — The governing body of the local education

agency may choose to adopt different but consistent codes

of behavior and discipline to apply to different classes of

schools, such as elementary, middle, junior high, and senior

high, under its jurisdiction. All such codes shall be uniform

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Appendix B

to the extent of maximum consideration for the safety and

well-being of students and employees. [Acts 1996, ch. 988,

§ 6.)

Tenn. Code § 49-6-4016

49-6-4016. Civil liability. — In addition to criminal

penalties provided by law, there is created a civil cause of

action for an intentional assault, personal injury or injury

to the personal property of students or school employees

when such assault occurs during school hours, on school

property or during school functions, including travel to and

from school on school buses. A person who commits such

an assault or injury shall be liable to the victim for all

damages resulting therefrom, including compensatory and

punitive damages. Upon prevailing, the victim shall be

entitled to treble damages and reasonable attorney fees and

costs. [Acts 1996, ch. 988, § 7.]

Tenn. Code § 49-6-4017

49-6-4017. Code distribution and posting. — When

a code of behavior and discipline has been adopted by the

governing body of a local education agency, a copy of the

code shall be posted at each school, and guidance counselors

shall be supplied copies for discussion with students. The

code shall be referenced in all school handbooks. All

teachers, administrative staff and parents shall be provided

copies of the code. [Acts 1996, ch. 988, § 8.]

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Appendix B

Tenn. Code § 49-6-4018

49-6-4018. Student actions resulting in expulsion.

— In addition to the other provisions of this part, a student

committing battery upon any teacher, principal,

administrator or any other employee of a local education

agency or unlawfully possessing any narcotic or stimulant

drug, prescription drug, or any other controlled substance

Shall be expelled for a period of not less than one

(1) calendar year, except that the director or superintendent

may modify this expulsion on a case-by-case basis. For

purposes of this section, “expelled” means removed from

the pupil’s regular school or removed from school

attendance altogether, as determined by the school official.

Nothing in this section shall be construed to prohibit the

assignment of such students to an alternative school. [Acts

1996, ch. 988, § 11; 1997, ch. 326, § 1.]

* * &

Part 42 — Scuoot Security Act

Tenn. Code § 49-6-4201

49-6-4201. Short title. — This part shall be known

and may be cited as the “School Security Act of 1981.”

[Acts 1981, ch. 368, § 2; T.C.A., § 49-9-401.]

Tenn. Code § 49-6-4202

49-6-4202. Definitions. — As used in this part, unless

the context otherwise requires:

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Appendix B

(1) “Dangerous weapon” or “weapon” means any

dangerous instrument or substance, which is capable of

inflicting any injury on any person;

(2) “Drug” means any controlled substance, marijuana,

alcohol, legend drug or any other substance whose

possession or use is regulated in any manner by any

governmental authority, including the school system;

(3) “Drug paraphernalia” means all equipment,

products and materials of any kind which are used, intended

for use, or designed for use in planting, propagating,

cultivating, growing, harvesting, manufacturing,

compounding, converting, producing, processing, preparing,

testing, analyzing, packaging, repackaging, storing,

containing, concealing, injecting, ingesting, inhaling or

otherwise introducing into the human body a drug, as

defined in subdivision (2). An electronic pager in the

possession of a student shall be included in this definition

if used or intended for use as defined by this subdivision;

(4) “School” means all public schools which conduct

classes in any grade from kindergarten through grade twelve

(K-12);

(5) “School Principal” or “principal” means the

administrative head of a public school, by whatever title

such person may be known;

(6) “Student” means any person, regardless of age,

enrolled in the public school; and

71a

Appendix B

(7) “Visitor” means any person who is on school

property, except for certificated personnel employed by the

State or local board of education. [Acts 1981, ch. 368, § 2;

1983, ch. 397, § 1; T.C.A., § 49-9-402; Acts 1988, ch. 727,

§ 1; 1994, ch. 636, § 13.]

Cross-References. Carrying weapons on school

property, § 39-17-1309.

Tenn. Code § 49-6-4203

49-6-4203. Legislative intent. — (a) It is the intent

of the general assembly in enacting this part to secure a

safe environment in which the education of the students of

Tennessee may occur.

(b) The general assembly recognizes the position of

the schools in loco parentis and the responsibility this places

on principals and teachers within each school to secure order

and to protect students from harm while in their custody.

than limit, the authority of principals and teachers to secure

order and provide protection of students within each school.

(d) The general assembly further recognizes that a

rising level of violent activity and use of drugs is occurring

in some public schools, especially in urban areas, and that

these activities threaten the well-being of all students in

such schools.

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Appendix B

(e) The general assembly further finds that:

(1) The removal of dangerous weapons, drug

paraphernalia and drugs from school property is necessary

to lessen hazards to students and that such removal can only

be accomplished by searches of areas of the school buildings

or grounds where such materials may be stored;

(2) On occasions when the use of dangerous weapons

or drugs has reached a life or health threatening level,

searches of students themselves may be necessary to protect

the larger student body, and that often such searches must

be conducted in emergency situations;

(3) Individual circumstances and local particularities

require that individual principals must be relied on to

exercise their professionally trained judgments in

determining what action is appropriate within the provisions

of this part; and

(4) The presence on school property of students with

drugs in their bodies may pose a threat to the safety and

well-being of that student and other students, may be

disruptive of school classes and other programs, and may

interfere with the educational opportunities and progress

of all students. [Acts 1981, ch. 368, § 2; 1983, ch. 397, § 2;

T.C.A., § 49-9-403; Acts 1988, ch. 727, § 2; 1988, ch. 940,

§ 2.)

73a

Appendix B

Tenn. Code § 49-6-4204

49-6-4204. Search of lockers. — (a) When individual

circumstances in a school dictate it, a principal may order

that vehicles parked on school property by students or

visitors, containers, packages, lockers or other enclosures

used for storage by students or visitors, and other areas

accessible to students or visitors be searched in the

principal’s presence or in the presence of other members of

the principal’s staff.

(b) Individual circumstances requiring a search may

include incidents on school property, including school

buses, involving, but not limited to, the use of dangerous

weapons, drugs or drug paraphernalia by students, which

are known to the principal or other staff members,

information received from law enforcement, juvenile or

other authorities indicating a pattern of drug dealing or drug

use by students of that school, any assault or attempted

assault on school property with dangerous weapons, or any

other actions or incidents known by the principal which

give rise to reasonable suspicion that dangerous weapons,

drugs or drug paraphernalia are held on school property by

one (1) or more students.

and other storage areas, containers, and packages brought

into the school by students or visitors are subject to search

for drugs, drug paraphernalia, dangerous weapons or any

_ Property which is not properly in the possession of the

student.

74a

Appendix B

(d) A notice shall be posted where it is visible from

the school parking lot that vehicles parked on school

property by students or visitors are subject to search for

drugs, drug paraphernalia or dangerous weapons. [Acts

1981, ch. 368, § 2; 1983, ch. 397, §§ 3, 4; T.C.A.,

§ 49-9-404; Acts 1988, ch. 727, §§ 3-5; 1994, ch. 636,

§§ 1-4.]

Tenn. Code § 49-6-4205

49-6-4205. Search of persons and containers. —

(a) A student may be subject to physical search because of

the results of a locker search, or because of information

received from a teacher, staff member, student or other

person if such action is reasonable to the principal.

(b) All of the following standards of reasonableness

shall be met:

(1) A particular student has violated school policy;

(2) The search will yield evidence of the violation of

school policy or will lead to disclosure of a dangerous

weapon, drug paraphernalia or drug;

(3) The search is in pursuit of legitimate interests of

the school in maintaining order, discipline, safety,

supervision and education of students;

(4) The search is not conducted for the sole purpose of

discovering evidence to be used in a criminal prosecution;

and

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Appendix B

(5) The search shall be reasonably related to the

objectives of the search and not excessively intrusive in

light of the age and sex of the student, as well as the nature

of the infraction alleged to have been committed. [Acts

1981, ch. 368, § 2; 1983, ch. 397, § 6; T.C.A., § 49-9-406;

Acts 1988, ch. 727, § 6; 1994, ch. 636, §§ 5, 6.]

Tenn. Code § 49-6-4206

49-6-4206. [Repealed.]

Tenn. Code § 49-6-4207

49-6-4207. Use of metal detectors. — To facilitate a

search which is found to be necessary of students, school

visitors, containers or packages, metal detectors and other

devices designed to indicate the presence of dangerous

weapons, drug paraphernalia or drugs may be used in

searches, including hand-held models which are passed over

or around a student’s or visitor’s body, and students, visitors,

containers and packages may be required to pass through a

Stationary detector. [Acts 1981, ch. 368, Pere =

§ 49-9-408; Acts 1988, ch. 727, § 8; 1994, ch. 636, §§ 8,

9.]

Tenn. Code § 49-6-4208

49-6-4208. Use of animals. — To facilitate a search

which is found to be necessary, dogs or other animals trained

to detect drugs or dangerous weapons by odor or otherwise

may be used in conducting searches, but such animals shall

be used only to pinpoint areas needed to be searched and

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Appendix B

shall not be used to search the persons of students or visitors.

[Acts 1981, ch. 368, § 2; T.C.A., § 49-9-409; Acts 1994,

ch. 636, §§ 10, 11.)

Tenn. Code § 49-6-4209

49-6-4209. Report of reasonable suspicion by

principal to law enforcement officer. — It is the duty ofa

school principal who has reasonable suspicion to believe,

either as a result of a search or otherwise, that any student

is committing or has committed any violation of

§ 39-17-1307, § 39-17-1309, or of title 39, chapter 17, part

4, upon the school ground or within any school building or

structure under the principal’s supervision, to report such

reasonable suspicion to the appropriate law enforcement

officer. School personnel have the duty to report any

reasonable suspicion that a student is committing or has

committed any violation of § 39-17-1307 to the principal,

or, if the principal is not available, to the principal’s

designee. If neither the principal nor the designee is

available, school personnel may report such violations of

§ 39-17-1307 committed on school property to the

appropriate authorities. [Acts 1981, ch. 368, § 2; T.C.A.,

§ 49-9-410; Acts 1994, ch. 636, § 12; 1995, ch. 102, § 1;

1995, ch. 215, § 1.]

Tenn. Code § 49-6-4210

49-6-4210. Disposal of contraband. — Any

dangerous weapon or drug located by the principal or other

staff member in the course of a search shall be turned over

to the appropriate law enforcement officer for proper

disposal. [Acts 1981, ch. 368, § 2; T.C.A., § 49-9-411.]

77a

Appendix B

Tenn. Code § 49-6-4211

49-6-4211. Defense of school personnel by education

agency — Indemnity. — (a) The local education agency

shall defend principals and teachers against whom suit is

brought on account of any action taken in accordance with

this part it:

(1) Such employees cooperate in the defense of such

suit; and

(2) In the opinion of the local education agency, such

actions were not the result of willful, wanton or malicious

wrongdoing.

(b) Each local education agency shall indemnify

principals and teachers from judgment against them if:

(1) Such judgments result from actions or omissions

arising out of performance of the duties imposed by this

part and do not result from willful, wanton or malicious

wrongdoing; and

(2) Such employees have cooperated with the local

education agency in the defense of such suit.

to indicate any waiver by the state of sovereign immunity

or to make the state any insurer of the aforementioned public

officials. [Acts 1981, ch. 368, § 2; T.C.A., § 49-9-412.]

78a

Appendix B

Tenn. Code § 49-6-4212

49-6-4212. Training program for school principals

— Notice of policies to parents and students. — (a) The

local education agency and the local law enforcement

agency shall establish and maintain an orientation and

training program designed to familiarize school principals

with the provisions of this part and with local policies and

procedures for implementing and enforcing this part.

(b) The local education agency shall provide parents

and students with reasonable notice of such local policies

and procedures. [Acts 1982, ch. 794, § 1; T.C.A.,

§ 49-9-413.]

Tenn. Code § 49-6-4213

49-6-4213. Testing of students for drugs — Referral

information — Student assistance program. — (a) A

student may be subject to testing for the presence of drugs

in the student’s body in accordance with this section and

the policy of the local education agency if there are

reasonable indications to the principal that such student may

have used or be under the influence of drugs. The need for

such testing may be brought to the attention of the principal

through a search authorized by § 49-6-4204 or § 49-6-4205,

observed or reported use of drugs by the student on school

property, or other reasonable information received from a

teacher, staff member or other student. All of the following

standards of reasonableness shall be met:

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Appendix B

(1) A particular student has violated school policy;

(2) The test will yield evidence of the violation of

school policy or will establish that a student either was

impaired due to drug use or did not use drugs;

(3) The test is in pursuit of legitimate interests of the

school in maintaining order, discipline, safety, supervision

and education of students;

(4) The test is not conducted for the sole purpose of

discovering evidence to be used in a criminal prosecution;

and

(5) Tests shall be conducted in the presence of a

witness. Persons who shall act as witnesses shall be

designated in the policy of the local board of education.

(b) For the purposes of this section and § 49-6-4203,

“drugs” means:

(1) Any scheduled drug as specified in §§ 39-17-405

— 39-17-416; and

(2) Alcohol.

any local education agency, the local board of education in

that local education agency shall establish policies,

procedures and guidelines to implement the provisions of

this section within that local education agency. The state

board of education shall prepare a model policy, procedure

aad

80a

Appendix B

and guidelines which may be adopted by local boards of

education.

(d) Tests shall be conducted by properly trained

persons in circumstances that ensure the integrity, validity,

and accuracy of the test results but are minimally intrusive

and provide maximum privacy to the tested student. All

tests shall be performed by an accredited laboratory.

Specimens confirmed as positive shall be retained for

possible retesting or reanalysis for at least ten (10) days.

(e) Students shall be advised in writing at the time of

their enrollment that they are subject to testing. Notice to

each student shall include grounds for testing, the

procedures that will be followed, and possible penalties

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.