# Opposition Brief — Knox County Education Ass'n v. Knox County Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0790%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1999 - **Citation:** 528 U.S. 812 ## Text No. 98-1799 IN THE Supreme Court of the United States KNOX COUNTY EDUCATION ASSOCIATION, Petitioner, v. 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 i 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. il 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 iv 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 vi 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 ix 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. -~ l 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 2 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 3 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. 4 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). wits in att Ci in Set CART REEL, AER AB Ob = iO Be en Pie 5 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. 6 (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 7 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. SE 8 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 er Baad a. ee 9 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. 10 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 11 individual’s application. The applicant may reapply after one year and show proof of successful rehabilitation. (JA 1007, 1019).° REASONS FOR DENYING THE WRIT 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 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) 12 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. 13 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. 14 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) 15 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) 16 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 17 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. 18 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 19 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). 20 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). 21 158 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 22 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 23 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 24 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 ae : “ Re g v. ve ack ne 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. 2a 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 3a 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. 4a 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, Sa 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. 6a 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 7a 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) 8a 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 9a 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. ’ + * ; 4 © 4 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; (C) Educational assistants shall be subject 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; (C) Dishonesty, unreliability, continued 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; (C) Treason, or any effort to sabotage or overthrow the government of the United States; or (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; (C) “Permanent tenure” refers to a term and 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 (C) Is then reemployed by the board for 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; (C) Has completed a probationary period of 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. (c) Time spent on leave of absence, except sick leave 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. (c) A teacher on “limited tenure” who fails, during any 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 |) (c) The conditions under which it is permissible to 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0790%3A3. Public record. Not legal advice.