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A program requiring universal random drug testing for all employees at 28 schools ran by the U.S. Forest Service is potentially unconstitutional, the U.S. Circuit Court of Appeals for the District of Columbia has held in a two-to-one decision. National Fed’n of Federal Employees v. Vilsack, No. 11-5135 (D.C. Cir. June 8, 2012). The split decision has potentially wide-ranging implications for the federal workforce.

Random drug testing by the federal government of its employees is a “search” subject to the Fourth Amendment’s reasonableness requirement. It is unquestioned that a drug test constitutes a “search” within the meaning of the Fourth Amendment. However, heretofore, courts have upheld random testing in the public sector, despite the application of the Fourth Amendment’s prohibition, because the federal government demonstrated a compelling need (e.g., regarding transportation workers and federal agents carrying firearms).

In overturning the lower court’s ruling, the Appeals Court held that in the absence of an immediate crisis or threat to student safety there was no basis to negate the Fourth Amendment’s individual-suspicion requirement. The Court concluded the designation of all U.S. Forest Service Job Corps Center employees for random drug testing does not fit within the “closely guarded category of constitutionally permissible suspicion less searches.”

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