Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kittle-Aikeley v. Strong

United States Court of Appeals, Eighth Circuit

December 22, 2016

Branden Kittle-Aikeley; Michael Barrett, IV; Jacob Curliss; John Doe, Plaintiffs - Appellees
v.
Dr. Shawn Strong, in his official capacity as President of State Technical College of Missouri;[1] Toni R. Schwartz, in her official capacity as member of the State Technical College of Missouri Board of Regents; John Klebba, in his official capacity as member of the State Technical College of Missouri Board of Regents, Defendants-Appellants Christopher T. Davidson, Defendant Bruce Darrough, in his official capacity as member of the State Technical College of Missouri Board of Regents; Member, in his/her official capacity as member of the State Technical College of Missouri Board of Regents, Defendant Branden Kittle-Aikeley; Michael Barrett, IV; Jacob Curliss; John Doe, Plaintiffs - Appellees
v.
Dr. Shawn Strong, in his official capacity as President of State Technical College of Missouri; Toni R. Schwartz, in her official capacity as member of the State Technical College of Missouri Board of Regents; John Klebba, in his official capacity as member of the State Technical College of Missouri Board of Regents, Defendants-Appellants Christopher T. Davidson, Defendant Bruce Darrough, in his official capacity as member of the State Technical College of Missouri Board of Regents; Mark J. Collom, in his official capacity as member of the State Technical College of Missouri Board of Regents; Erick V. Kern, in his official capacity as member of the State Technical College of Missouri Board of Regents; J. Scott Christianson, in his official capacity as member of the State Technical College of Missouri Board of Regents, Defendants-Appellants Member, in his/her official capacity as member of the State Technical College of Missouri Board of Regents, Defendant

          Submitted: April 13, 2016

         Appeals from United States District Court for the Western District of Missouri - Jefferson City

          Before RILEY, Chief Judge, WOLLMAN, BEAM, LOKEN, MURPHY, SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.

          WOLLMAN, Circuit Judge.

         Shawn Strong, in his official capacity as President of State Technical College of Missouri (Linn State), [3] along with members of the Board of Regents of Linn State, also in their official capacities, appeal from the district court's[4] grant of a permanent injunction and subsequent tentative grant of attorneys' fees in favor of the plaintiffs, a class of current and future Linn State students (collectively, the Students). The permanent injunction prohibits Linn State from fully implementing a new drug-testing policy, which requires incoming students to submit to urinalysis. A divided panel of this court reversed both the permanent injunction and the fee award. Kittle-Aikeley v. Claycomb, 807 F.3d 913 (8th Cir. 2015). We granted the Students' petition for rehearing en banc, and we now affirm the judgment, except to the extent that it orders the defendants to refund any fees that Linn State had charged for unconstitutional drug testing. We dismiss for lack of jurisdiction Linn State's appeal from the tentative grant of attorneys' fees and costs.

         I. Background

         Linn State is a two-year technical college whose main campus is located in Linn, Missouri. It was established by statute in 1961 and remains a publicly funded institution. Its purpose is to "make available to students from all areas of the state exceptional educational opportunities through highly specialized and advanced technical education and training at the certificate and associate degree level in both emerging and traditional technologies with particular emphasis on technical and vocational programs not commonly offered by community colleges or area vocational technical schools." Mo. Rev. Stat. § 178.636(1). The technical and vocational programs that Linn State offers "lead[] to the granting of certificates, diplomas, and applied science associate degrees." Id. § 178.636(2). Between 1, 150 and 1, 200 students were enrolled in Linn State in 2011, and approximately 500 new students enroll each year.

         Linn State offers at least twenty-eight educational programs, which are divided into the following five divisions: Mechanical, Electrical, Civil, Computer, and General Education. Many of the programs involve practical, hands-on training. For example, students in the Aviation Maintenance program spend roughly 62% of their time doing hands-on training, working in close proximity to active propeller blades. Those students are also required to "taxi" airplanes by moving them along a runway. Students in the Industrial Electricity program spend about half their time engaged in hands-on training. They work with live electricity and occasionally perform electrical services for members of the community. Students in the Design Drafting Technology program spend 61% of their time in the lab, where they complete manual drafting, using a pencil and paper, and computer-aided drafting, using computer software.

         A. Drug Testing and Drug Use at Linn State

         In addition to the mandatory drug-testing policy at issue in this case, Linn State has a discretionary drug-testing policy that allows the college to drug test students who are involved in an accident on campus or with a Linn State vehicle. Linn State also has required drug testing of students who appear to be impaired. Students who enroll in the college's Heavy Equipment Operations program must undergo drug testing as a condition of obtaining commercial driver's licenses. Some employers require students to be drug tested before beginning internships, but those tests are completed by the employer and do not involve Linn State.

         Accidents are not common at Linn State, and the college has not attributed any accidents to student drug use. Donald Claycomb, who served as President of Linn State from July 1993 until July 2016, could not recall any serious accidents like those involving death or loss of a limb. He estimated that the college recommended that a student seek medical attention in five to ten cases per year, but he did not know whether Linn State had drug tested any students following an accident. He also did not know whether any on-campus accidents could be attributed to student drug use. Richard Pemberton, Associate Dean of Student Affairs, recounted the injuries that three students had suffered in separate accidents, but as far as he knew, none of those accidents involved drugs or alcohol. Several Linn State instructors were asked whether they knew of any accidents caused by student drug use, but none did. Moreover, there was no indication of student drug use in any of Linn State's fifty-one accident reports dating back to 2001.

         Although Linn State had no reason to believe that it had a student drug-use problem greater than any other college's, Dean Pemberton began investigating in 2010 whether Linn State nevertheless should require its incoming students to be drug tested. The impetus, he explained, was his review of responses to a survey of Linn State advisory council members. The survey had asked whether Linn State should drug test its students, and most of the members who responded said that it should.[5] After Dean Pemberton discussed the matter with members of Linn State's faculty and administration, he began developing a drug-testing policy that would require all incoming degree- or certificate-seeking students to be tested. He also worked on implementation procedures and materials to explain the new policy to students.

         B. Linn State's Mandatory Drug-Testing Policy

         On June 17, 2011, Linn State's Board of Regents adopted the following drug-testing policy:

Linn State Technical College will begin a drug screening program in the fall semester of 2011 for students who are newly classified as degree or certificate seeking and degree or certificate seeking students returning after one or more semesters of non-enrollment at the Linn State Technical College campus or any Linn State Technical College location.

         According to Linn State, the purpose of the policy is "to provide a safe, healthy[, ] and productive environment for everyone who learns and works at Linn State Technical College by detecting, preventing[, ] and deterring drug use and abuse among students." Linn State advanced four rationales for the policy: to maintain a safe, secure, drug-free, and crime-free school; to deter and prevent student drug use and abuse; to identify students who need assistance; and to promote student health. The policy's goals focused on encouraging students to be drug free, as well as improving Linn State's retention and graduation rates.

         Linn State set forth the procedures by which it planned to implement the policy. Within the first ten days of the 2011 fall semester, incoming students would be required to submit a urine sample, which would thereafter be tested for eleven drugs. Any student who tested positive for one or more drugs would be notified of the results and placed on disciplinary probation. To remain enrolled at Linn State, the student would be required to complete a drug-awareness course or attend counseling, provide a second urine sample within forty-five days, and submit to a random drug test sometime thereafter. If the results from the student's second or random drug tests were positive, the student would be required to withdraw or would be administratively withdrawn from Linn State and would be ineligible to enroll at the college for at least one semester. Although Linn State did not intend to use its drug-testing program for any law-enforcement purposes, the college reserved the right to notify the parents of students under the age of twenty-one of a drug-positive test.

         Students who refused to submit a urine sample would not be allowed to remain enrolled at Linn State unless the college waived the drug-testing requirement. Students could seek a waiver by petitioning the Office of the President. According to the college, its students could "advance any justification for the request, " including "unique health issues, technical concerns, participation in another similar program, exclusive participation in campus programs which do not pose unique health and safety issues, moral objections, philosophical objections, religious objections, and legal objections." The president would then decide whether to waive the drug-testing requirement. Alternatively, students could follow Linn State's general grievance procedure. Neither the petition process nor the grievance procedure guaranteed that a student who refused to be drug tested could remain enrolled.

         Beginning in the fall of 2011, Linn State students were required to sign a form acknowledging that Linn State had adopted a new drug-testing policy and that refusal to undergo drug testing would result in student-initiated or administrative withdrawal. Linn State also developed a "frequently asked questions" document that explained the drug-testing procedures and stated that no one would be present "during the urine collection process."

         Linn State began drug testing students on September 7, 2011. Students were assessed a $50 fee, even though Linn State's cost was only $28 per test. Five hundred fifty-eight students paid the fee and provided urine samples.

         C. Procedural History

         On September 14, 2011, after providing urine samples in accordance with the policy, Branden Kittle-Aikeley and other named individuals filed a class-action complaint against President Claycomb and members of Linn State's Board of Regents. The complaint alleged that Linn State's suspicionless drug-testing policy violated the Fourth Amendment's prohibition of unreasonable searches. The Students sought a declaration that the policy was facially unconstitutional and also sought injunctive relief, as well as class certification. The district court granted a temporary restraining order, which prohibited "any further testing of samples and any reporting of results to the school."

         During the preliminary-injunction hearing held on October 25, 2011, Linn State explained that the college had adopted a presumption that all of its students were enrolled in or participated in safety-sensitive classes or activities. The college believed that the students themselves were in a better position to determine whether they had enrolled only in non-safety-sensitive classes. According to Linn State, students who made such a determination were permitted to petition for a waiver of the drug-testing requirement. President Claycomb, Dean Pemberton, and several Linn State department chairpersons and instructors testified in support of the college's drug-testing program. Linn State concluded its argument as follows:

[Linn State] put together what we believe is the most effective administrative scheme to identify programs that are a threat to the health and safety of students and to further that educational value. There has to be some level of inaccuracy. We minimize that as much as possible, and we ask the students to let us know if they don't agree with our decision and to provide the information . . . to allow us to evaluate [their objections].

         At the close of the hearing, the district court indicated that it intended to grant the motion for a preliminary injunction. The court extended the temporary restraining order and later set a date for the bench trial. It also granted the Students' motion to certify a class of current and future "students of Linn State Technical College who are, or will be, seeking degrees or certificates" from Linn State. D. Ct. Order of Nov. 15, 2011. On November 18, 2011, the district court entered a written order granting the preliminary injunction, and Linn State appealed.

         A panel of this court vacated the preliminary injunction, concluding that the Students were unlikely to succeed on the merits of their facial challenge because Linn State's drug-testing policy could conceivably be implemented in such a way as to comply with the Fourth Amendment. Barrett v. Claycomb, 705 F.3d 315 (8th Cir. 2013). The panel determined that, "[a]lthough Linn State's drug-testing policy may have some unconstitutional applications, we are unable to say that it is unconstitutional on its face in every conceivable circumstance." Id. at 324. The panel indicated that an as-applied challenge-"focusing only on those current students whose studies did not involve a safety-sensitive program"-would be more appropriate. Id. at 324-25. The Students thereafter amended their complaint to "make[] clear that Plaintiffs seek as-applied relief."

         The district court conducted a bench trial on July 1, 2013, at which Linn State did not present evidence about the safety concerns associated with each of its educational programs. It instead urged the district court to presume that all Linn State students were enrolled in safety-sensitive programs or otherwise participating in safety-sensitive activities. Linn State maintained that it was the individual student's burden to petition the president for a waiver of the drug-testing requirement and to make the case that his or her course of study did not involve any safety-sensitive activities. Linn State then would decide "whether on those certain circumstances the Fourth Amendment is implicated." The Students argued that Linn State had failed to demonstrate that any of its educational programs implicated the special need of deterring drug use among students enrolled in safety-sensitive programs. Moreover, they argued, the petition process did not save the unconstitutional drug-testing policy, because such a procedure would allow "a state actor [to] impose a mandatory, suspicionless search on a broad population so long as it [also] permits the targets of the search to make a discretionary appeal to the actor conducting the search."

         The district court considered whether Linn State's drug-testing program served the special need of "deterring drug use among students engaged in programs posing significant safety risks to others." D. Ct. Order of Sept. 13, 2013, at 1 (quoting Barrett, 705 F.3d at 322). The court declined to presume that all incoming students would be enrolled in safety-sensitive programs, as Linn State had suggested, and instead considered each program individually to determine whether Linn State had established a safety concern sufficient to justify drug testing the students enrolled in that program. For those programs that posed significant safety risks, the district court balanced the risk of harm to others with the intrusion on the students' privacy expectations to discern whether the drug-testing policy was constitutional as applied. The district court found that the challenged policy did not apply to those students enrolled in the Heavy Equipment Operations program, and thus the court did not reach the question whether the policy was constitutional as applied to those students.

         The district court upheld the drug-testing requirement as applied to students enrolled in the following programs: Aviation Maintenance, Electrical Distribution Systems, Industrial Electricity, Power Sports, and CAT Dealer Service Technician. It determined, however, that drug testing students enrolled in the remaining programs would result in an unconstitutional search in light of Linn State's failure to show that those programs pose significant safety risks to others. Accordingly, the district court permanently enjoined Linn State from drug testing students who had enrolled in those programs and ordered Linn State to refund the $50 fee that it had collected from any of those students. The district court also granted prospective injunctive relief, prohibiting Linn State from drug testing any students who enroll in the non-safety-sensitive programs in the future.

         Over Linn State's objection, the district court also granted in part the Students' post-trial motion for attorneys' fees, tentatively awarding class counsel $171, 274.48 in fees and costs, subject to objections by the class members. After setting forth the method for notifying class members, see Fed.R.Civ.P. 23(h), and receiving one pro se objection to the tentative award of fees and costs, the district court stayed the proceedings, pending resolution of Linn State's appeal.

         A divided panel of this court concluded that the district court erred in conducting a program-by-program analysis, stating that courts "cannot and do not operate as course-of-study-content experts discerning the relative safety issues in various programs offered at a technical school where significant safety risks abound." Kittle-Aikeley, 807 F.3d at 923. The panel determined that "testing the entire student population entering Linn State is reasonable and hence constitutional and an effective means of addressing Linn State's interest in providing 'a safe, healthy, and productive environment for everyone who learns and works at LSTC by detecting, preventing, and deterring drug use and abuse among students.'" Id. at 926.

         We granted the Students' petition for rehearing en banc. The panel decision has been vacated, and the matter ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.