EDUC 674
Kathryn Keeney
April 17, 2000

Sherry Hearn was employed under contract with the Board of Education of Chathum County, Georgia which required her to follow the policies of the school district. The school district enacted a "Drug Free Workplace Policy" (DFWP) in 1993 governing all of its employees. The policy required drug testing of an employee when "supervisor observations or other objective circumstances reasonably support a suspicion that an employee may have violated the Board drug and alcohol policy." Also, according to the policy, the employee had to take the urine drug test within two hours after the incident creating the "reasonable suspicion" occurred. Refusal of an employee to consent to the drug test within the two-hour period, was cause for termination for insubordination. An employee who tested positive, would be terminated.

The Georgia police conducted a random search of cars in the school parking lot using a drug-sniffing dog. When the dog alerted to Hearn's car, the law enforcement deputy allowed the dog to go through the open window. The dog focused on an unopened ashtray in which a school official opened the ashtray and found a hand rolled, partially burned marijuana cigarette that was still warm.

The principal was notified and confronted Hearn about the finding of marijuana in her car. Hearn denied knowledge or possession of marijuana. She was "Mirandized" by the officer, but not charged with any criminal possession.

She was then informed of the school policy that required her to take a urinalysis drug test within two hours. Hearn refused to take the test and was given a warning letter by the principal, which stated that disciplinary action would follow if she failed to comply with school board policy. After still refusing the test, she was suspended and the superintendent recommended her for dismissal for insubordination.

Hearn was provided with a hearing, appeared with counsel and testified, but the board voted to terminate her on the basis of the superintendent's recommendation. She appealed to the State Board of Education that also upheld the board's decision. Hearn sued the Board of Public Education of Chatham County, Georgia for denial of substantive and procedural due process rights, intentional breach of contract, alleging possession of marijuana and violations of the fourth and fifth amendments. Ms. Hearn sought damages and reinstatement. The district court granted summary judgment in favor of the school district and Hearn appealed this decision to the 11th circuit court of appeals.

Hearn argued that she could not be terminated for her refusal to take the drug test within 2 hours because there was no "reasonable suspicion". She claimed that the search of her car was illegal under the board's policy, which required consent of employees to search personal property at school. The school board policy regarding search of employee property only applied if the search was a school search. Hearn claimed that the search of her car was an intra-school event, school search, because the school official actually found the marijuana in the car. According to the school policy, the search of her car should not have been conducted without her consent Therefore, "reasonable suspicion" could not arise, the search was illegal, and she should not have been required to take the drug test. She claimed the school breached the contract by not following procedures concerning the search of an employee. Also, she claimed her fourth and fifth amendment rights were violated because there was not a search warrant and she was being forced to give a urine test. She wanted the right to remain silent and consult her attorney first.

In the decision, the judgment of the district court was affirmed. The majority found in favor of the school board. The majority opinion felt this was a law enforcement event because the sweep search of the cars was initiated by law enforcement. It did not matter that the school official opened the ash tray and found the marijuana because this was still considered a police search. Law enforcement must follow the Constitution relating to search and seizure and is not required to follow school policy dealing with the search of employees.

Also Hearn's expectation of privacy and her fourth amendment rights were not violated. According to other precedent, a dog sniff on the exterior of cars does not constitute a search under the fourth amendment (Merret v. Moore, 58 F.3d 1547, 1553 n.11 (11th Cir.1995). Also, when a drug sniffing dog alerts to person's property, there is both reasonable suspicion and probable cause to search the property (United States v. Banks, 3 F.3d 399,402 (11th Cir.1993). Property alerted to in vehicle can be searched immediately without a search warrant (California v. Acevedo, 500 U.S.565,581,111 S.Ct 1982,114 L.Ed.2d 619 (1991).

The Majority also stated that Hearn's desire to exercise the right to remain silent did not violate her Fifth Amendment rights. According to other precedent, the production of body fluids is considered non-testimonial (Schmerber v. California, 384 U.S. 757,761,86 S.Ct 1826,16 L.Ed.2d. 908 (1996). Hearn was not being forced to testify against herself by agreeing to urine drug test.

The Dissenting Opinion discussed that there was no criminal action taken against Hearn. Possible reasons for criminal charges not being filed may have been due to the fact that a search warrant was needed, it was considered a school search rather than a law enforcement event, and the contraband was destructed during the analysis. Ferguson, the dissenting judge, also explained that Hearn was a teacher of constitutional law and she disagreed with the school policy of conducting lockdowns in search of drugs. She also was a teacher for 27 years, only three years until retirement, and had previously won the teacher of the year award. The judge stated that she consented to a drug test the next day and it was negative. He thought this case should go to a jury to decide the outcome.

The decision in the case has an effect on education by testing the integrity of a school policy. The school policy was to enforce a drug free workplace with zero tolerance. Employees are required to abide by the policy because they are employed under contract. In this case, the majority found in favor of the school district thus enforcing contractual agreements.