      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2    International Union, et al. v.            No. 03-1574
   ELECTRONIC CITATION: 2004 FED App. 0337P (6th Cir.)        Winters, et al.
               File Name: 04a0337p.06
                                                                            _________________
UNITED STATES COURT OF APPEALS                                                   COUNSEL
             FOR THE SIXTH CIRCUIT                       ARGUED:        George B. Washington, SCHEFF &
               _________________                         WASHINGTON, Detroit, Michigan, for Appellants. Susan
                                                         Przekop Shaw, OFFICE OF THE ATTORNEY GENERAL,
INTERNATIONAL UNION;              X                      LABOR DIVISION, Lansing, Michigan, for Appellees.
UNITED AUTOMOBILE ,                -                     ON BRIEF:        George B. Washington, SCHEFF &
AEROSPACE AND                      -                     WASHINGTON, Detroit, Michigan, for Appellants. Susan
                                   -  No. 03-1574        Przekop Shaw, OFFICE OF THE ATTORNEY GENERAL,
AGRICULTURAL IMPLEMENT             -                     LABOR DIVISION, Lansing, Michigan, Denise C. Barton,
WORKERS OF AMERICA ;                >                    OFFICE OF THE ATTORNEY GENERAL, PUBLIC
                                   ,
LOCAL 6000,                        -                     EMPLOYMENT & ELECTIONS DIVISION, Lansing,
          Plaintiffs-Appellants, -                       Michigan, for Appellees.
                                   -                                        _________________
            v.                     -
                                   -                                            OPINION
                                   -                                        _________________
JANINE WINTERS, et al., in
                                   -
their Official Capacities,         -                       KENNEDY, Circuit Judge. The Plaintiffs, International
Jointly and Severally,             -                     Union, United Automobile, Aerospace, and Agricultural
         Defendants-Appellees. -                         Implement Workers of America (UAW), and its affiliated
                                   -                     Local 6000 (hereinafter referred to collectively as “UAW”),
                                   -                     appeal from the district court’s judgment holding that a
                                   -                     random drug testing program implemented for select
                                  N                      Michigan civil service employees, including probation and
       Appeal from the United States District Court      parole officers, non-custodial employees in prisons, and
     for the Western District of Michigan at Lansing.    medical personnel who deliver medical or psychological
  No. 00-00021—David W. McKeague, District Judge.        services to persons in state custody, does not violate the
                                                         Fourth Amendment.        The district court reached this
               Argued: August 5, 2004                    conclusion as it found that the state established sufficient
                                                         “special needs,” based upon substantial public safety
       Decided and Filed: September 30, 2004             concerns, which overrode the intrusion on the Fourth
                                                         Amendment rights of the employees subject to the drug
  Before: KENNEDY, SUTTON, and COOK, Circuit
                   Judges.

                           1
No. 03-1574                     International Union, et al. v.           3    4        International Union, et al. v.                       No. 03-1574
                                              Winters, et al.                          Winters, et al.

testing. 1 We agree with the district court’s conclusion, and                     Category 3: A position in which the incumbent, on a
AFFIRM.                                                                                       regular basis, provides direct health care
                                                                                              services to persons in the care or custody
                          BACKGROUND                                                          of the state or one of its political
                                                                                              subdivisions.
  The UAW represents approximately 20,000 State of
Michigan employees. Under the Michigan Constitution, the                          Category 4: A position in which the incumbent has
Michigan Civil Service Commission has the power to regulate                                   regular unsupervised access to and direct
the terms and conditions of employment for the State’s civil                                  contact with prisoners, probationers, and
service. On May 20, 1999, the Commission adopted a                                            parolees.
random drug and alcohol testing program, essentially
borrowing protocols and procedures issued by the United                           Category 5: A position in which the incumbent has
States Department of Health and Human Services and                                            unsupervised access to controlled
Department of Transportation. The testing program was                                         substances.
incorporated into the 1999-2001 Collective Bargaining
Agreement between the UAW and the State of Michigan.                             The largest group of UAW represented employees now
Article 52 of the Agreement identifies seven categories of                    being tested consist of probation or parole officers and field
“test-designated positions” that are subject to testing. The                  service assistants. These employees are subject to testing
UAW represents 2,855 employees who occupy test-                               either because they have law enforcement powers, are
designated positions, all in the following four categories:2                  required or permitted to carry a firearm while on duty, or have
                                                                              regular unsupervised access to and direct contact with
  Category 2: A position in which the incumbent                               probationers or parolees. The UAW does not challenge the
              possesses law enforcement powers or is                          testing of those parole or probation officers who applied for
              required or permitted to carry a firearm                        and maintain their eligibility to carry firearms. Rather, it
              while on duty.                                                  challenges the testing of those employees who are subject to
                                                                              testing only because they possess law enforcement powers or
                                                                              have access to and contact with probationers or parolees.

    1                                                                           The next largest group subject to testing consists of non-
     The parties subm itted the m atter to the district co urt for judgment   custodial employees who work for the Department of
based on stipulated facts and briefs in lieu of trial.                        Corrections or the Department of Community Health within
    2                                                                         the perimeter of the state’s correctional facilities.3 These
      Although the UAW criticizes the district court for not examining
every “job,” the district court did not need to evaluate each individual
position because the UAW agreed to a stipulation that each of the 2,855            3
positions, occupied by employees it represents, requires duties, in varying         These employees include Athletic and P rogram Coo rdinators,
amounts, within one or more of the four challenged categories. Indeed,        Chap lains, Priso n Co unselo rs, Rec reational T herap ists, Special Education
the UA W mad e this stipulation and agreed to admit a representative          Tea chers, Dietician/Nutritionists, State Transitional Professionals,
samp le of position descriptions. Thus, the UAW waived the argument           Employment Counselors, Com munication A ssistants, and General Office
concerning the need to evaluate each job description.                         Assistants.
No. 03-1574               International Union, et al. v.    5    6     International Union, et al. v.               No. 03-1574
                                        Winters, et al.                Winters, et al.

employees are subject to testing because they have regular       689 U.S. 656, 665 (1989). Because these intrusions are
unsupervised access to and direct contact with prisoners.        searches under the Fourth Amendment, we must therefore
                                                                 review the State’s policy for reasonableness, “which is the
  A third group of test-designated positions consists of         touchstone of the constitutionality of a governmental search.”
Department of Corrections and Department of Community            Board of Education v. Earls, 536 U.S. 822, 828 (2002). The
Health employees who provide health care and psychological       Earls Court noted that in “the criminal context,
care to prisoners.       These positions include nurses,         reasonableness usually requires a showing of probable cause.”
occupational therapists, psychologists and social workers.       Id. However, the probable cause standard, the court further
                                                                 noted, “‘is peculiarly related to criminal investigations’ and
  Finally, a fourth group consists of Department of              may be unsuited to determining the reasonableness of
Community Health, Department of Education, and                   administrative searches where the ‘Government seeks to
Department of Military and Veterans Affairs employees who        prevent the development of hazardous conditions.’” Id.
provide health care and other services to residents at state     (citing Von Raab, 489 U.S. at 667-68). Thus, “in certain
hospitals for the mentally ill and developmentally disabled      limited circumstances, the Government’s need to discover
and to residents of veterans’ homes. These positions include     such latent or hidden conditions, or to prevent their
psychiatrists, psychologists, physicians, dentists, nurses,      development, is sufficiently compelling to justify the
therapists, and social workers.                                  intrusion on privacy entailed by conducting such searches
                                                                 without any measure of individualized suspicion.” Von Raab,
  After the district court denied UAW’s claim for declaratory    489 U.S. at 668. Therefore, the Court has recognized, a
and injunctive relief and awarded judgment for the State, this   search unsupported by individualized suspicion may
appeal followed. Since the issue in this case concerns the       nonetheless be reasonable when the government alleges
reasonableness of a Fourth Amendment search, we review the       “special needs,” beyond the normal need for law enforcement,
district court’s decision de novo. Knox County Education         that are both substantial – important enough to override the
Ass’n v. Knox County Bd. of Education, 158 F.3d 361, 371         individual’s privacy interest, and sufficiently vital to suppress
(6th Cir. 1998).                                                 the normal requirements of individualized suspicion.
                                                                 Chandler v. Miller, 520 U.S. 305, 318 (1997).
                        ANALYSIS
                                                                    In reviewing the reasonableness of a drug testing policy, the
  The Fourth Amendment to the United States Constitution         Court has instructed that we weigh the extent of the intrusion
protects “[t]he rights of the people to be secure in their       upon the privacy interest of the individuals being tested
persons, houses, papers, and effects, against unreasonable       against the promotion of the government’s proffered special
searches and seizures.” It is beyond dispute that government     need in conducting the tests. Earls, 536 U.S. at 830. For
ordered collection and testing of urine samples effects a        instance, a program may be unconstitutional even if the
search within the meaning of the Fourth Amendment as such        intrusion upon the individual’s privacy rights were minimal,
tests intrude upon reasonable expectations of privacy that       if the government fails to establish a sufficient special need
society has long recognized as reasonable. See Skinner v.        justifying the intrusion without individualized suspicion. See
Railway Labor Executives Association, 489 U.S. 602, 619          e.g. Chandler, 520 U.S. at 318-19. A drug testing program
(1989); National Treasury Employees Union v. Von Raab,           may also be unconstitutional, conversely, even if the
No. 03-1574                International Union, et al. v.      7    8     International Union, et al. v.                No. 03-1574
                                         Winters, et al.                  Winters, et al.

government establishes a sufficient special need, if the            requiring the employee to carry a firearm. Id. at 660. The
intrusion upon the individual’s privacy interest were               Court concluded that there was a sufficient special need to
excessive, for instance, because of an overly intrusive testing     test these employees without individualized suspicion because
procedure. In deciding whether the State’s testing program          their work involved drug interdiction; they were required to
here was justified by a sufficient special need that outweighed     carry firearms; they could be subject to bribes or blackmail by
the privacy interest of those being tested, it is helpful to        the drug smugglers they were required to interdict; and they
briefly review precedent in this area to see how the Supreme        were not subject to the day-to-day scrutiny that is the norm in
Court and our court have balanced these competing interests.        the more traditional office environment. Id. at 668-71, 74.
  In Chandler, the Court concluded that the state failed to            In Earls, the Court concluded that a school may test
proffer a special need that would overcome the general              students for drugs who participate in extracurricular activities
prohibition against suspicionless searches. 520 U.S. at 322.        since the school’s ‘special need’ to “prevent and deter” the
The special need in Chandler failed because the state’s             use of drugs by students, where the school is responsible for
interest was found to be merely symbolic, not special. Id. In       maintaining the discipline, health, and safety of those
Chandler, the State of Georgia required all candidates who          students, outweighs the student’s limited privacy interest.
sought to qualify for nomination or election to a state office      536 U.S. at 834, 836. In reaching this conclusion, the Court
to certify that they had tested negative for drugs. Id. at 309.     first considered “the nature of the privacy interest allegedly
In defense of the policy, Georgia asserted that the use of          compromised by the drug testing.” Id. at 830. The Court
drugs is incompatible with holding state office since the use       noted that a “student’s privacy interest is limited in a public
of drugs calls into question an official’s judgment and             school environment.” Id. The Court further noted that a
jeopardizes the discharge of public functions. Id. at 318-19.       student’s expectation of privacy is even further diminished if
Notably lacking from Georgia’s defense, the Court noted, was        the student participates in extracurricular activities, since such
any indication of a concrete danger that would arise by failing     activities are typically heavily regulated. Id.; Cf. Veronica
to test these candidates, thus demanding departure from the         School Dist. 47J v. Action, 515 U.S. 646, 657 (“Somewhat
individualized suspicion requirement. Id. Rather, the court         like adults who choose to participate in a closely regulated
opined, since state officials are subject to day-to-day scrutiny,   industry, students who voluntarily participate in school
do not perform safety sensitive tasks, and are not alleged to       athletics have reason to expect intrusions upon normal rights
have a drug problem, “[w]hat is left ... is the image the State     and privileges, including privacy”). After considering the
seeks to project.” This need, the Court concluded, is               nature of the privacy interest, the Court next considered the
symbolic, not special. Id. at 321-22.                               character of the intrusion imposed by the drug test. Id. at 832.
                                                                    Under the policy, the Court noted, a faculty monitor waits
   In Von Raab, by contrast, the Court found that the               outside a closed restroom stall for the student to produce a
government not only offered a sufficient special need but also      sample. Id. The Court considered this method of collection
that the special need outweighed the intrusion upon the             to be at most a negligible intrusion upon the student’s privacy
privacy rights of the employees subject to the testing. 489         interest. Id. Given the student’s decreased expectation of
U.S. at 677. In that case, the Customs Service implemented          privacy and the minimally intrusive nature of the procedure,
a program that made drug tests a condition of promotion or          the Court concluded that the invasion upon the student’s
transfer to positions directly involving drug interdiction or       privacy was not significant. Id. at 834. Next, the Court
No. 03-1574                International Union, et al. v.     9    10       International Union, et al. v.                   No. 03-1574
                                         Winters, et al.                    Winters, et al.

considered the special need proffered by the state. Id. It         Impasse Panel.4 In recommending that the Civil Service
concluded that, despite the absence of an “identifiable drug       Commission adopt the drug testing program proposed by the
abuse problem among ... [the students] subject to the testing,”    State, the Panel stated as follows:
the need to prevent and deter the use of drugs among the
students who participate in extracurricular activities to be         Employees in “test-designated” positions who abuse
sufficiently vital to suppress the requirements of                   alcohol and drugs represent a significantly greater threat
individualized suspicion. Id. at 836. Finally, the Court found       to the health and safety of themselves and others than do
the drug testing program to be constitutional as it concluded        employees in nontest-designated positions. Employees
that the school’s special need outweighed the minimal                in “test-designated” positions may be required to react to
intrusion upon the student’s privacy interest. Id. at 836-38.        unusual or dangerous circumstances.

  This Circuit has also had the opportunity to consider              On balance, the Impasse Panel finds that ... drug use by
whether a proffered special need was sufficiently vital and          classified employees occupying “test-designated”
substantial to permit drug testing of employees without              positions can impair judgment and behavior so
individualized suspicion. In Knox County, a school board             significantly that serious injury or death may result.
adopted a drug testing program that required the testing of
employees who applied for, promoted to, or transferred to,           We cannot merely accept a state’s invocation of special
safety sensitive positions, including teachers. 158 F.3d at        needs, but rather must engage in a context-specific inquiry,
363. We concluded that the school board’s proffered need to        examining closely the interests advanced by the state. The
ensure the safety and security of the children under its care      largest group subject to testing consists of the parole or
was sufficiently vital to overcome the traditional requirements    probation officers and field service assistants. They are
of individualized suspicion. Id. at 374-79. After noting that      subject to testing because they have law enforcement powers
teachers and other employees who work in a school have a           and because they have regular access to parolees or
diminished expectation of privacy because they work in a           probationers. Probation and parole officers spend a
heavily regulated industry, we held that the school board’s        significant amount of time supervising clients away from the
special need in ensuring the safety and security of the children   office and away from supervision by their superiors.
under its care outweighed the intrusion upon the employees’        Moreover, they are often required to take urinalysis drug test
privacy interest. Id. at 384.                                      samples from their clients in the field, over 20 percent of
                                                                   whom have tested positive for unlawful drug use. Since they
  With these cases as a guide, we now evaluate the special         are responsible for supervising probationers and paroles,
needs proffered by the State. In adopting the drug testing         public safety would be put in jeopardy, the state argues, if
program, the Michigan Civil Service Commission followed
the recommendations of the Employment Relations Board
                                                                        4
                                                                         W hen the UAW and the State were unable to agree on a drug testing
                                                                   provision for the Collective Bargaining Agreement, a request was made
                                                                   for Impasse Panel assistance pursuant to the civil service rules governing
                                                                   collective bargaining. T he Impasse Panel was composed of three
                                                                   members app ointed by the Civil Service Commission.
No. 03-1574                International Union, et al. v.     11    12    International Union, et al. v.               No. 03-1574
                                         Winters, et al.                  Winters, et al.

they performed this duty while under the influence of drugs         direct patient care responsibilities in state facilities and have
or alcohol.                                                         access to medications, including controlled substances. An
                                                                    employee involved in substance abuse might succumb to the
  The second largest group consists of non-custodial                temptation to take wrongful advantage of his or her access to
employees who work in the perimeter of a correctional               these controlled substances. As with the health care providers
facility. The State contends that there is a special need to test   who provide care to prisoners, there is a risk of harm to the
these employees because they have unsupervised access to            patient if a care giving employee is under the influence of
and direct contact with prisoners, 80 percent of whom have a        drugs or alcohol.
history of drug and alcohol abuse. Moreover, the introduction
of alcohol and drugs into correctional facilities, which               The Plaintiff argues that the State’s justification for the
prisoners could obtain possession of, presents a severe threat      drug testing program does not arise to a “special need,”
to security and to the safety of correctional employees and         permitting the testing of employees without individualized
prisoners, since the use of drugs by prisoners can lead to          suspicion. It contends that, since there was no pre-existing
disruptive behavior. In addition, employees who are involved        drug problem among the employees here, the drug testing
in substance abuse may be vulnerable to influence by others         program may only constitute a “special need” if it fits under
who would bring drugs into the prison. And finally,                 the criteria established in Von Raab, since in that case the
employees under the influence of drugs or alcohol suffer from       Court upheld a drug testing program even though there was
impaired judgment, which could adversely impact security            no pre-existing drug problem among the employees subject to
within the facility as well as the safety of other employees and    testing. The Plaintiff notes that the Chandler Court identified
prisoners.                                                          four factors that it felt were decisive in determining that the
                                                                    customs agents in Von Raab could be tested even though
   Another group of test-designated positions consists of           there was no existing drug problem among them: 1) drug
employees who provide health care and psychological care to         interdiction had become the Customs Bureau’s primary
prisoners. As with the non-custodial employees, these               enforcement mission; 2) the employees subject to testing had
employees have unsupervised access to and direct contact            access to vast sources of contraband; 3) the agents had been
with prisoners, which raises the concern of the introduction of     targets of bribery; and 4) it was not feasible to subject the
drugs or alcohol into a correctional facility, which would pose     custom agents to day-to-day scrutiny. After noting these
a severe threat to the security and safety of the employees and     factors, the Plaintiff concludes that the State has failed to
prisoners therein. In addition, these employees have access         show a special need as these factors do not apply at all or only
to medications, including controlled substances. Finally, if        minimally apply to the test-designated categories.
these employees were under the influence of drugs or alcohol,
the health and safety of the patients these employees provided        The Plaintiff errs in arguing that, since there is no pervasive
health care to could be put in jeopardy.                            pre-existing drug problem among the test-designated
                                                                    employees, the drug testing program here may only be
  The final group subject to testing consists of those              justified if it accords with the factors that justified the drug
employees who provide health care to residents at state             testing program in Von Raab. We cannot, as the Plaintiff
hospitals for the mentally ill and developmentally disabled         proposes, superimpose the four, context-specific factors
and to residents of veterans’ homes. These employees have           outlined in Von Raab concerning customs agents onto the
No. 03-1574                    International Union, et al. v.        13     14    International Union, et al. v.                No. 03-1574
                                             Winters, et al.                      Winters, et al.

facts here, which involve jobs that lay in an entirely different            Plaintiff argues that Earls does not support the imposition of
context, to determine if the state has proffered a special need             the drug testing program because there is no evidence of a
that is sufficiently vital to suppress the requirements of                  general drug problem among civil service employees, the
individualized suspicion. It is obvious that the specific                   employees may not opt out of the testing, and the testing may
factors outlined in Von Raab would not all or even mostly                   result in discipline. The Plaintiff’s argument fails, however,
apply to another context since they were specifically distilled             not only because it attempts to apply the context specific
from the situation facing customs agents. If those factors                  factors announced in Earls to the unique context presented in
were the test for determining whether a special need existed                this case, but also because it mischaracterizes the Court’s
when there is no evidence of a pre-existing problem, then it                holding. Marks does not apply to Earls since Justice Breyer
would likely be difficult to find any special needs outside                 concurred in the Court’s opinion, not merely in the judgment.
those faced by the Customs Bureau. Instead, we must                         Justice Thomas’ opinion of the Court not only provides the
consider the state civil service employees in this case who are             holding but also supports the proposition that a state may
subject to testing in their own unique context. Knox, 158                   have a special need to deter and prevent drug use among a
F.3d at 374 (“Just as the Customs agents in Von Raab must be                specific group despite the absence of a particularized or
considered in their own unique context, so too must the nature              pervasive drug problem among the group.
of the work and positions of school teachers and
administrators be viewed as unique.”)                                          After considering the drug testing program in its own
                                                                            unique context, we conclude that the State has offered
  Although in Earls, like Von Raab, there was no evidence of                “special needs” that are sufficiently vital to overcome the
a particularized or pervasive drug problem among those                      traditional requirements of individualized suspicion.
subject to testing, the Plaintiff nonetheless contends that Earls           Although there is no evidence of a particularized or pervasive
does not support the constitutionality of the drug testing                  drug abuse problem among the test-designated employees, it
program at issue here. The Plaintiff argues, on the basis of                is well established that the existence of a pronounced drug
Marks v. United States, 430 U.S. 188, 193 (1977)5, that                     problem is not an essential element to the finding of a special
Justice Breyer’s concurrence provides the Court’s holding. In               need. Knox, 158 F.3d at 374; See also Earls, 536 U.S. at 835;
his concurrence, Justice Breyer emphasizes some underlying                  Von Raab, 489 U.S. at 674-75. Rather, the need to deter and
considerations to his conclusion that no Fourth Amendment                   prevent a substantial harm provides the necessary immediacy
violation occurred in Earls. Earls, 536 U.S. at 838. He noted               for the imposition of a drug testing program. Earls, 536 U.S.
that there is a documented national drug problem among high                 at 836. As the Earls Court noted, it would make little sense
school students, that students could opt out of the drug testing            to require the test designated group to begin using drugs
program by not participating in extracurricular activities, and             before the state was allowed to institute a program designed
that the testing program was not disciplinary in nature. The                to deter its use. Id. Moreover, unlike Chandler, in the instant
                                                                            case there exists the potential for substantial harm that the
                                                                            state is entitled to attempt to prevent. It is certainly true that
    5                                                                       employees who either have 1) law enforcement duties, 2)
      The Marks Court noted: “When a fragmented Court de cides a case       direct and unsupervised contact with prisoners, 80 percent of
and no single rationale explaining the result enjoys the assent of five
justices, the holding of the Court may be viewed as the position taken by   whom have a history of drug abuse, or 3) a responsibility to
those Mem bers who conc urred in the jud gment on the narrowest gro und.”   deliver health care or psychological services to persons in
No. 03-1574                 International Union, et al. v.     15    16   International Union, et al. v.              No. 03-1574
                                          Winters, et al.                 Winters, et al.

state custody, would pose a significant potential threat to the        Next, we consider the character of the intrusion. The
health and safety of themselves and others if they use drugs         degree of intrusion caused by collecting a urine sample
or were under the influence of drugs while on duty.                  “depends upon the manner in which production of the urine
                                                                     sample is monitored.” Earls, 536 U.S. at 832 (quoting
   Having concluded that the state has asserted sufficient           Veronica, 515 U.S. at 658). The procedure for collecting a
special needs, based on substantial, and not merely                  urine sample under the drug testing policy at issue here
hypothetical, public safety concerns, to justify the testing of      requires that individual privacy be preserved unless there are
employees without individualized suspicion, we next consider         grounds to suspect tampering. The policy provides that while
whether the State’s interest in the drug testing outweighs the       the “specimen collector may be outside the bathroom or
employees’ reasonable expectations of privacy. It is well            restroom in the near proximity, the employee closes (and
established that an individual who participates in a heavily         locks, if he/she chooses) the door and has full privacy while
regulated industry or activity has a diminished expectation of       urinating.” This procedure is even less intrusive than the
privacy. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S.            monitoring sustained in Veronica as “negligible.” Veronica,
602, 627 (noting that railroad employees have a diminished           515 U.S. at 658 (holding the intrusion to be “negligible” even
expectation of privacy because they participate in a                 though male students were required to produce samples at a
pervasively regulated industry); See Veronica, 515 U.S. at           urinal along a wall while observed from behind).
657 (analogizing student-athletes to employees in closely
regulated industry, who “have reason to expect intrusions              The Plaintiff argues, however, that since the drug tests are
upon normal rights and privileges, including privacy”); See          conducted on a random and continuous basis, rather than on
also, Earls, 536 U.S. at 832 (applying the same reasoning to         the occurrence of a triggering event such as a promotion, the
students who participate in extracurricular activities); Knox        invasion of privacy is “qualitatively more intrusive” because
County, 158 F.3d at 379 (finding that teachers’ legitimate           the employees are subjected to “unrelenting scrutiny” and
expectation of privacy is diminished by their participation in       repeated “unsettling shows of authority.” The fact that the
a heavily regulated industry). The employees who are subject         drug tests are conducted on a random and continuous basis
to testing work either in law enforcement (parole and                does not change our calculus that the drug testing program is
probation officers), the medical profession (nurses,                 not highly intrusive. First, since only fifteen percent of the
occupational therapists, etc.), or inside a prison (teachers,        affected workforce is tested each year, an individual
chaplains, dieticians, etc.). It is certainly true that parole and   employee can expect to be tested only once every seven years
probation officers, who are charged with supervision of              on average. Moreover, to the extent the random and
felony offenders, participate in a heavily regulated field.          continuous drug tests are more intrusive, this is offset by the
Similarly, those employees who provide healthcare and other          fact that such tests are also more efficacious than one time
services to prisoners and patients of state run facilities are       tests at achieving their intended result: to deter and prevent
also subject to comprehensive regulations.                Finally,   drug use to protect public safety and health. As the Court
employees who work within prisons obviously work in a
highly regulated context. Therefore, since these employees
work in highly regulated fields, we conclude that they have a
diminished expectation of privacy.
No. 03-1574                   International Union, et al. v.       17
                                            Winters, et al.

noted in Skinner6 , “[b]y ensuring that employees ... will be
tested [at a time] which no employee can predict with
certainty, the [drug testing policy] significantly increase[s] the
deterrent effect of the ... penalties associated with the
prohibited conduct.” 489 U.S. at 630.
  Since we conclude that the State has offered sufficiently
vital special needs, based on substantial public safety
concerns, to overcome the traditional requirements of
individualized suspicion, and that these special needs
outweigh the employees diminished expectations of privacy,
we AFFIRM the district court’s holding that the program does
not violate the Fourth Amendment to the United States
Constitution.




    6
      Although the policy in Skinner provides that drug tests will be
conducted upon the occurrence of an accident, since no one can predict
with certainty the occu rrence of an accident (unlike the timing of a
decision to apply for a promotio n), drug tests under the policy are
therefo re conduc ted randomly.
