                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3264
                         ___________________________

      Branden Kittle-Aikeley; Michael Barrett, IV; Jacob Curliss; John Doe

                       lllllllllllllllllllll 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

                      lllllllllllllllllllll Defendants - Appellants

                              Christopher T. Davidson

                             lllllllllllllllllllll Defendant

Bruce Darrough, in his official capacity as member of the State Technical College
of Missouri Board of Regents;2 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


      1
        President Shawn Strong is substituted for his predecessor, Donald M.
Claycomb. See Fed. R. App. P. 43(c)(2). Linn State Technical College has been
renamed and is now known as State Technical College of Missouri. See Mo. Rev.
Stat. § 178.631.
      2
      Board member Bruce Darrough is substituted for his predecessor, Diane
Benetz. See Fed. R. App. P. 43(c)(2).
                     lllllllllllllllllllll Defendants - Appellants

Member, in his/her official capacity as member of the State Technical College of
                          Missouri Board of Regents,

                           lllllllllllllllllllll Defendant
                        ___________________________

                                No. 14-1145
                        ___________________________

      Branden Kittle-Aikeley; Michael Barrett, IV; Jacob Curliss; John Doe

                       lllllllllllllllllllll 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

                     lllllllllllllllllllll Defendants - Appellants

                             Christopher T. Davidson

                             lllllllllllllllllllll 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

                     lllllllllllllllllllll Defendants - Appellants


                                           -2-
 Member, in his/her official capacity as member of the State Technical College of
                           Missouri Board of Regents,

                              lllllllllllllllllllll Defendant
                                      ____________

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

                              Submitted: April 13, 2016
                              Filed: December 22, 2016
                                   ____________

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’s4 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


      3
      We will continue to refer to the college as Linn State, even though its name has
changed.
      4
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

                                           -3-
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

                                         -4-
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.




                                          -5-
        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


      5
       According to Dean Pemberton, Linn State surveyed 333 advisory council
members. “[T]here was a 49 percent return rate; and of those, 83 percent were in favor
of Linn State” pursuing a drug-testing program.

                                          -6-
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.



                                          -7-
       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

                                           -8-
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.”



                                           -9-
       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.



                                         -10-
       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.




                                          -11-
      We granted the Students’ petition for rehearing en banc. The panel decision has
been vacated, and the matter is now presented to the full court for review.

                                   II. Discussion

                              A. Standard of Review

       We review a district court’s grant of a permanent injunction for abuse of
discretion. Int’l Ass’n of Machinists & Aerospace Workers, Dist. Lodge No. 19 v.
Soo Line R.R. Co., 850 F.2d 368, 374 (8th Cir. 1988) (en banc); Capitol Records, Inc.
v. Thomas-Rasset, 692 F.3d 899, 906 (8th Cir. 2012). A district court abuses its
discretion if it “reaches its conclusion by applying erroneous legal principles or
relying on clearly erroneous factual findings.” Capitol Records, 692 F.3d at 906
(quoting Fogie v. THORN Ams., Inc., 95 F.3d 645, 649 (8th Cir. 1996)). Where “the
determinative question is purely legal, our review is more accurately characterized as
de novo.” Qwest Corp. v. Scott, 380 F.3d 367, 370 (8th Cir. 2004).

                            B. Special-Needs Analysis

       The Fourth Amendment protects “[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures.” Linn State’s collection and
testing of urine is a search under the Fourth Amendment. See Chandler v. Miller, 520
U.S. 305, 313 (1997). While the Constitution generally prohibits searches conducted
without individualized suspicion, the Supreme Court has recognized exceptions to the
general rule in certain well-defined circumstances, including those in which the
government has “special needs, beyond the normal need for law enforcement.”
Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting New Jersey v. T.L.O., 469
U.S. 325, 351 (1985) (Blackmun, J., concurring)). In those cases in which special
needs have been shown, “it is necessary to balance the individual’s privacy
expectations against the Government’s interests to determine whether it is impractical

                                        -12-
to require a warrant or some level of individualized suspicion in the particular
context.” Nat’l Treasury Union v. Von Raab, 489 U.S. 656, 665-66 (1989). Linn State
argues that the need to enhance safety and the need to foster a drug-free environment
constitute the special needs that justify drug testing all incoming students without any
individualized suspicion of drug use.

       “The special needs doctrine recognizes that, ‘[i]n limited circumstances, where
the privacy interests implicated by the search are minimal, and where an important
governmental interest furthered by the intrusion would be placed in jeopardy by a
requirement of individualized suspicion, a search may be reasonable despite the
absence of such suspicion.’” Lebron v. Sec’y of Fla. Dep’t of Children & Families,
772 F.3d 1352, 1361 (11th Cir. 2014) (quoting Skinner v. Ry. Labor Execs.’ Ass’n,
489 U.S. 602, 624 (1989)). In determining whether the special-needs requirement has
been satisfied, courts engage in “a context-specific inquiry, examining closely the
competing private and public interests advanced by the parties.” Chandler, 520 U.S.
at 314. Supreme Court “precedents establish that the proffered special need for drug
testing must be substantial—important enough to override the individual’s
acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment’s
normal requirement of individualized suspicion.” Id. at 318.

                             1. Safety as a Special Need

      In Skinner v. Railway Executives’ Association, the Supreme Court upheld
federal regulations that required blood and urine testing of railroad employees
involved in train accidents, as well as related regulations that allowed railroads to
conduct breath and urine tests of employees who violated certain safety rules. 489
U.S. at 634. The regulations were adopted in response to evidence of drug and
alcohol abuse by railroad employees, including on-the-job intoxication, evidence
linking drug- and alcohol-impaired employees to train accidents and incidents, and
recognition of the obvious safety risk posed by drug- or alcohol-impaired employees.

                                         -13-
Id. at 606-08. The Court determined that “[t]he Government’s interest in regulating
the conduct of railroad employees to ensure safety” presented special needs justifying
the search without a showing of individualized suspicion. Id. at 620. In considering
the government’s interest in drug and alcohol testing, the Court explained that
“[e]mployees subject to the tests discharge duties fraught with such risks of injury to
others that even a momentary lapse of attention can have disastrous consequences.”
Id. at 628.

       In National Treasury Union v. Von Raab, the Court upheld drug testing of
United States Customs Service employees who sought transfer or promotion to
positions that directly involved drug interdiction or that required the carrying of
firearms. 489 U.S. at 679. “While the Service’s regime was not prompted by a
demonstrated drug abuse problem, it was developed for an agency with an ‘almost
unique mission,’ as the ‘first line of defense’ against the smuggling of illicit drugs into
the United States.” Chandler, 520 U.S. at 315-16 (quoting Von Raab, 489 U.S. at 674,
668) (citations omitted). The Court recounted evidence of injury and death by Service
employees, as well as evidence that Service employees had been the targets of bribes
by drug smugglers. Von Raab, 489 U.S. at 669-70. The Court found it “readily
apparent that the Government has a compelling interest in ensuring that front-line
interdiction personnel are physically fit, and have unimpeachable integrity and
judgment.” Id. at 670. With respect to the employees who carry firearms, the Court
said that “[t]he public interest likewise demands effective measures to prevent the
promotion of drug users to positions that require the incumbent to carry a firearm”
because—like the railroad employees in Skinner—those Service employees
“discharge duties fraught with such risks of injury to others that even a momentary
lapse of attention can have disastrous consequences.” Id. at 671 (quoting Skinner, 489
U.S. at 628).

       The Supreme Court thus has made clear that the public has “surpassing safety
interests” in ensuring that those in “safety-sensitive” positions have unimpaired

                                           -14-
judgment. Skinner, 489 U.S. at 634, 633; see also Von Raab, 489 U.S. at 668-71;
Chandler, 520 U.S. at 314-16. In light of this precedent, district courts and courts of
appeals have allowed suspicionless drug testing of individuals employed in safety-
sensitive occupations. See Krieg v. Seybold, 481 F.3d 512, 518 (7th Cir. 2007)
(collecting cases that allowed testing of aviation personnel, railroad safety inspectors,
highway and motor carrier safety specialists, lock and dam operators, forklift
operators, tractor operators, engineering operators, and crane operators); see also
Rushton v. Neb. Pub. Power Dist., 844 F.2d 562, 566-67 (8th Cir. 1988) (upholding
drug testing of nuclear power plant employees who had access to protected areas of
the plant); McDonnell v. Hunter, 809 F.2d 1302, 1307 (8th Cir. 1987) (upholding drug
testing of correctional institution employees). Similarly, we conclude that “the public
has a valid interest in deterring drug use among students engaged in programs posing
significant safety risks to others,” Barrett, 705 F.3d at 322, and that this interest
constitutes a “special need.”

       Linn State argues that the district court should have taken into account the risk
of harm to the students themselves in determining whether Linn State had shown a
special need of ensuring safety. Although the Supreme Court mentioned the safety
of the individual employees in Skinner and VonRaab, the Court upheld the
suspicionless drug testing in those cases based on the broader interests of public safety
and security. See Skinner, 489 U.S. at 621, 628-630; Von Raab, 489 U.S. at 668-71.
We thus find no error in the district court’s refusal “to uphold the drug-testing policy
based on [the risk of harm to the individual students themselves]” or its decision to
“focus, as the Eighth Circuit did, on whether a particular program poses a significant
safety risk to others.” D. Ct. Order of Sept. 13, 2013, at 14.

             2. Fostering a Drug-Free Environment as a Special Need

      As set forth above, the stated purpose of Linn State’s drug-testing policy is “to
provide a safe, healthy[,] and productive environment for everyone who learns and

                                          -15-
works at Linn State Technical College by detecting, preventing[,] and deterring drug
use and abuse among students.” Linn State argues that fostering a drug-free
environment constitutes an additional special need that justifies departure from the
usual warrant and probable-cause requirements.

       We find the Supreme Court’s decision in Chandler v. Miller instructive in
deciding whether Linn State has established the existence of this alleged special need.
Chandler involved a Georgia statute that required candidates for designated state
offices to certify that they had taken a drug test and that the test results were negative.
520 U.S. at 308. Georgia had defended the statute on grounds that “the use of illegal
drugs draws into question an official’s judgment and integrity; jeopardizes the
discharge of public functions, including antidrug law enforcement efforts; and
undermines public confidence and trust in elected officials.” Id. at 318. According
to Georgia, the statute served “to deter unlawful drug users from becoming candidates
and thus stop[ped] them from attaining high state office.” Id. After conducting a
“close review” of Georgia’s reasons for the certification requirement and considering
the efficacy of the drug tests to “ferret out lawbreakers,” the Court held that the
certification requirement was not warranted by a special need. Id. at 321, 320.

      Georgia asserts no evidence of a drug problem among the State’s elected
      officials, those officials typically do not perform high-risk, safety-
      sensitive tasks, and the required certification immediately aids no
      interdiction effort. The need revealed, in short, is symbolic, not
      “special,” as that term draws meaning from our case law.

Id. at 321-22.

       Similarly, Linn State has not shown that fostering a drug-free environment on
its campus constitutes a “special need,” as defined by the Supreme Court. We note
that no crisis sparked the Board of Regents’ decision to adopt the drug-testing policy
and that Linn State does not believe it has a student drug-use problem greater than that

                                           -16-
experienced by other colleges. See Chandler, 520 U.S. at 318-19 (“Notably lacking
. . . is any indication of a concrete danger demanding departure from the Fourth
Amendment’s main rule.”). The record indicates instead that Linn State began
pursuing a drug-testing policy after Dean Pemberton reviewed responses to a survey
of advisory council members that indicated support of such a policy. “A demonstrated
problem of drug use, while not in all cases necessary to the validity of a testing
regime, would shore up an assertion of special need for a suspicionless general search
program.” Id. at 319. Evidence of a problem, the Supreme Court has said, “may help
to clarify—and to substantiate—the precise hazards posed by such use.” Id.

       Linn State argues that its drug-testing program helps “prepare the students for
the realities of the workplace,” where “[t]here is a high likelihood graduates will be
tested before they can land and keep good jobs.” Appellants’ Br. 33. Linn State asks,
“Why bother to give people degrees if they can never get jobs in the real world, only
because they cannot pass a drug test?” Id. This question presupposes that student-age
drug use constitutes an irrevocable decision to continue in such use after one enters
the adult workforce. Indeed, while Linn State presented evidence that some
professions for which it trains its students require drug testing as a condition of
employment, it presented only weak, anecdotal evidence that any of its students were
not hired because they could not pass a potential employer’s drug test. Even assuming
that Linn State had made such a showing, we nonetheless conclude that its interest in
protecting adults from disadvantaging themselves in future employment contexts does
not constitute a special need sufficient to justify its drug-testing policy.

        Linn State argues that drug testing “helps instructors focus their time on
instructing, instead of having only themselves to rely on in trying to discern whether
or not students have issues with drugs.” Appellants’ Br. 33. Without any evidence
that such a concern distracted its instructors, however, we cannot say that it is a
“concrete danger demanding departure from the Fourth Amendment’s main rule.” See
Chandler, 520 U.S. at 319. Linn State also argues that when students choose to attend

                                        -17-
Linn State, they accept “a package deal” that includes drug testing. Appellants’ Br.
34. Stated differently, Linn State argues the students who enroll in its educational
programs consent to the drug-testing program. If a search is unreasonable under the
Fourth Amendment, however, Linn State, as a state actor, cannot require its students
to consent to that search as a condition of enrollment. See McDonnell, 809 F.2d at
1310 (“If a search is unreasonable, a government employer cannot require that its
employees consent to that search as a condition of employment.”); see also Am. Fed’n
of State, Cty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 873 (11th Cir. 2013)
(“[W]e do not agree that employees’ submission to drug testing, on pain of
termination, constitutes consent under governing Supreme Court case law.”).

       The facts in this case are substantially different from those in Vernonia School
District v. Acton, 515 U.S. 646 (1995), and Board of Education of Independent School
District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002). In Vernonia,
the Court upheld a school board policy that required public high school students to
consent to suspicionless drug testing in order to participate in the school district’s
athletics programs. 515 U.S. at 664-65. “An ‘immediate crisis’ caused by ‘a sharp
increase in drug use’ in the school district sparked installation of the program.”
Chandler, 520 U.S. at 316 (quoting Vernonia, 515 U.S. at 663, 648) (citations
omitted). Central to the Court’s decision to uphold the policy in Vernonia was the
fact that its subjects were “(1) children, who (2) ha[d] been committed to the
temporary custody of the State as schoolmaster.” Vernonia, 515 U.S. at 654.
Similarly, the Supreme Court upheld in Earls a policy requiring drug tests for all
public middle and high school students who participated in competitive extracurricular
activities, including athletics, band, choir, and Future Farmers of America. 536 U.S.
at 825-26. The Court noted that “[t]he drug abuse problem among our Nation’s youth
has hardly abated since Vernonia was decided in 1995.” Id. at 834. It then recounted
specific evidence of drug use that the school had presented and ultimately “declin[ed]
to second-guess the finding of the District Court that . . . the School District was faced
with a drug problem when it adopted the Policy.” Id. at 834 (internal quotation marks

                                          -18-
and citation omitted). Moreover, “[a]s in Vernonia, ‘the necessity for the State to act
[wa]s magnified by the fact that this evil is being visited . . . upon children for whom
it ha[d] undertaken a special responsibility of care and direction.’” Id. at 835 (quoting
Vernonia, 515 U.S. at 662). In contrast to Vernonia and Earls, Linn State’s drug-
testing policy was not developed in response to any crisis and, most significantly,
Linn State’s students are not children committed to the temporary custody of the state.
See Vernonia 515 U.S. at 665 (“caution[ing] against the assumption that suspicionless
drug testing will readily pass constitutional muster in other contexts” and reiterating
that “the most significant element” in Vernonia was “that the Policy was undertaken
in furtherance of the government’s responsibilities, under a public school system, as
guardian and tutor of children entrusted to its care”).

       Linn State desires that its student body be drug free or be taking steps to
become drug free. Linn State believes that its drug-testing policy would have the
effect of increasing campus safety, that the drug-testing policy would both encourage
students to avoid using drugs and help identify those students who are using drugs and
are in need of assistance, and that the policy would boost the college’s recruitment,
retention, and graduation rates.

       Fostering a drug-free environment is surely a laudable goal, but our review of
Linn State’s drug-testing program and its asserted justification for conducting
suspicionless searches leads us to conclude that Linn State has not demonstrated that
fostering a drug-free environment is a special need, as that term has been defined by
the Supreme Court in Skinner, Von Raab, and Chandler. See Ferguson v. City of
Charleston, 532 U.S. 67, 81(2001) (explaining that the Supreme Court in Chandler
“did not simply accept the State’s invocation of a ‘special need,’” but rather “carried
out a ‘close review’ of the scheme at issue before concluding that the need was not
‘special,’ as that term ha[d] been defined in [Supreme Court] cases” (quoting
Chandler, 520 U.S. at 322)).



                                          -19-
                          3. Program-by-Program Analysis

       Linn State argues that the district court erred in considering its educational
programs individually and instead should have applied a presumption that “all
students . . . will be involved in safety-sensitive programs, classes, and activities.”
Appellants’ Br. 37. It contends that the district court overlooked the unique nature of
the college, where “[t]he majority of programs offered . . . require students to work
with extraordinarily dangerous components” and to “perform tasks fraught with risk.”
Id. at 6, 22. Linn State maintains that its relatively small student body should have
been considered as a whole because the “entire school is peppered with dangerous
instrumentalities” and because “the general purpose of the school is to prepare
students for jobs which, for the most part, will involve some physical danger.” Id. at
28.

       When assessing whether a suspicionless drug-testing policy is reasonable under
the Fourth Amendment in the employment context, the Supreme Court has
differentiated between job categories designated for testing. In Von Raab, for
example, the Court considered separately the three categories of Customs Service
positions that required drug tests as a condition of placement or employment and, as
set forth above, upheld the drug testing of employees who sought transfer or
promotion to positions that directly involved drug interdiction or that required the
incumbent to carry firearms. 489 U.S. at 677. The third category of employees were
required to handle classified material and included the following positions:
accountants, accounting technicians, animal caretakers, attorneys, baggage clerks, co-
op students, electric equipment repairers, mail clerks/assistants, and messengers. Id.
at 677-78. Because it was “not evident that those occupying these positions [were]
likely to gain access to sensitive information, and this apparent discrepancy
raise[d] . . . the question whether the Service ha[d] defined this category of employees
more broadly than [wa]s necessary to meet the purposes of the Commissioner’s
directive,” the Court remanded the case for further proceedings. Id. at 678. Von Raab

                                         -20-
thus teaches that the special-needs analysis is not conducted at a high order of
generality, but in a more specific and categorical manner. Id.; see also Scott, 717 F.3d
at 873 (“[Skinner and its progeny] conducted the special-needs balancing test not at
a high order of generality but in a fact-intensive manner that paid due consideration
to the characteristics of a particular job category (e.g., the degree of risk that mistakes
on the job pose to public safety), the important privacy interests at stake, and other
context-specific concerns (e.g. evidence of a preexisting drug problem).”); Nat’l Fed’n
of Fed. Emps. v. Vilsack, 681 F.3d 483, 498 (D.C. Cir. 2012) (“For [certain]
categories of employees . . . , the chain of causation between misconduct and injury
is considerably more attenuated.” (internal quotation marks and citation omitted)).

       We conclude that the district court properly applied Von Raab when it
conducted a program-by-program analysis. The category of students who may be
drug tested as a condition of attending Linn State is composed only of those students
who enroll in safety-sensitive educational programs. By requiring all incoming
students to be drug tested, Linn State defined the category of students to be tested
more broadly than was necessary to meet the valid special need of deterring drug use
among students enrolled in safety-sensitive programs. Take, for example, students
such as those enrolled in Linn State’s Design Drafting program. It was not evident
that the program’s course work would require them to perform tasks fraught with risk,
and the district court found that, based on Linn State’s evidence, the greatest danger
the program presented was “that a student might accidentally trip and fall while
navigating uneven ground during a site visit.” D. Ct. Order of Sept. 13, 2013, at 47.
In the absence of evidence that the Design Drafting program involved a substantial
safety concern, Linn State failed to justify drug testing all students enrolled in that
program.

      By applying a program-by-program approach, the district court also properly
followed the panel decision that vacated the preliminary injunction. The panel
indicated that “Linn State’s drug-testing policy may have some unconstitutional

                                           -21-
applications” and suggested that if the Students “wanted to challenge the drug-testing
policy on the specific facts, focusing only on those current students whose studies did
not involve a safety-sensitive program, they could have lodged an as-applied
challenge.” Barrett, 705 F.3d at 324-25.

        We find unpersuasive Linn State’s argument that the possibility of cross-
enrollment renders its drug-testing policy reasonable under the Fourth Amendment.
According to Linn State, students enrolled in non-safety-sensitive programs “can and
do enroll in classes outside their own programs.” Appellant’s Br. 25. In response to
the district court’s finding that the possibility of cross-enrollment was “abstract and
unsubstantiated,” D. Ct. Order of Sept. 13, 2013, at 50, Linn State argues that it was
not required to present evidence of cross-enrollment, stating that “surely the school
is in a position to know whether cross-enrollment actually happens, without having
to present student-specific occasions of it.” Appellants’ Br. 25. What the college is
in a position to know, and what it can establish by way of evidence, are not one and
the same. Linn State’s unsupported assertions regarding cross-enrollment are
insufficient to justify the mandatory drug testing of all incoming students.

       Finally, although Linn State argues that the district court erred in declining to
consider whether students enrolled in the Heavy Equipment Operations program could
be tested under the mandatory drug-testing policy, we find no clear error in the court’s
factual determination that students enrolled in that program were not tested under the
policy and were instead tested under a separate drug-testing policy that the Students
have not challenged. In light of this finding, the district court did not err in declining
to decide whether the policy could be applied constitutionally to those students.

                                    III. Conclusion

       We affirm the district court’s order permanently enjoining Linn State from drug
testing students “who were not, are not, or will not be enrolled” in safety-sensitive

                                          -22-
programs. See D. Ct. Order of Sept. 13, 2013, at 61. We reverse and vacate the order
to the extent it requires Linn State “to refund the $50.00 fee . . . any students were
assessed for the unconstitutional drug testing.” Id. at 62; see Edelman v. Jordan, 415
U.S. 650, 663 (1974) (“[A] suit by private parties seeking to impose a liability which
must be paid from public funds in the state treasury is barred by the Eleventh
Amendment.”); Treleven v. Univ. of Minn., 73 F.3d 816, 818 (8th Cir. 1996) (“[T]he
Eleventh Amendment prohibits federal-court lawsuits seeking monetary damages
from individual state officers in their official capacities because such lawsuits are
essentially ‘for the recovery of money from the state.’” (quoting Ford Motor Co. v.
Dep’t of the Treasury, 323 U.S. 459, 464 (1945)). We dismiss for lack of jurisdiction
Linn State’s appeal from the tentative award of attorneys’ fees and costs. See Gates
v. Cent. States Teamsters Pension Fund, 788 F.2d 1341, 1343 (8th Cir. 1986) (award
of attorneys’ fees is not appealable where the amount is not quantified).

BEAM, Circuit Judge, with whom Judge Loken joins, concurring and dissenting.

       I concur in the court's affirmance of the district court's validation of State
Technical College of Missouri's (formerly and herein referred to as Linn State or
College) drug-testing requirements as applied to members of the purported Rule
23(b)(2) class enrolled in the educational programs of the College designated as
Aviation Maintenance, Electrical Distribution Systems, Industrial Electricity, Power
Sports and CAT Dealer Service Technician. Ante at 11. I also concur in the court's
rulings concerning student-paid fee refunds and awards of attorneys' fees and costs to
lawyers of the purported class. I dissent from the court's affirmance of the district
court's grant of prospective injunctive relief, prohibiting Linn State from drug testing
and screening any students who are enrolled, or in the future enroll, in non-safety-
sensitive programs, presumably all other Linn State educational programs except those
named above.




                                         -23-
I.    INTRODUCTION

      More than twenty-seven years ago the Supreme Court began generally
validating the suspicionless drug testing and screening being carried on by America's
government, business, service and educational institutions saying there is no dispute,
"nor can there be doubt, that [illicit] drug abuse is one of the most serious problems
confronting our society today." Nat'l Treasury Emps. Union v. Von Raab, 489 U.S.
656, 674 (1989). Fast forwarding to the present and taking judicial notice of the
United States Surgeon General's Report on Alcohol, Drugs, and Health of November
2016, tackling drug addiction, we know that "[i]n 2015, over 27 million people in the
United States reported current use of illicit drugs or misuse of prescription drugs"
from which "[i]t is estimated that the yearly economic impact of substance misuse and
substance use disorders is . . . $193 billion." Executive Summary at ES-1.

       Indeed, further judicial notice indicates that this year Congress overwhelmingly
enacted the Comprehensive Addiction and Recovery Act of 2016 noting, among other
things in doing so, that "[t]here were more than 47,000 U.S. drug abuse fatalities in
2014 – double the death rate in 2000. . . . The bill authorizes $181 million in new
spending [to deliver life-saving prevention and treatment services], . . . [a]t a time
when drug overdoses claim 129 American lives every day." Associated Press,
Congress Passes Opioid Abuse Bill, NBCNews.com (July 13, 2016),
http://www.nbcnews.com/pages/print (last visited Nov. 30, 2016).

      Finally, the United States Sentencing Commission Statistical Information
Packet for fiscal year 2015 indicates that the drug offenders' category for this Circuit
is 34%, a number that is more than twice as large than the net next largest offender
group.

       Thus, in rejecting Linn State's reasoned conclusion that its suspicionless drug
testing and screening program ensures safety and deters harm to every student and

                                         -24-
future student, individually, not just those participants in programs posing safety risks
to others, the court significantly errs.

       In the ambience emphasized by the Surgeon General's Report and the
Comprehensive Addiction and Recovery Act of 2016, illicit drug use by students at
any public academic institution inevitably damages a "broader interest[] of public
safety and security," an interest that the court mentions, but then seems to abandon.
Ante at 15. And, this broad public interest is especially at work at Linn State with its
wide and deep mix of dangerous, nondangerous and support programs that are always
in place, together and apart, on Linn State's campus.

       While the court states that "Linn State ha[s] no reason to believe that it had a
student drug-use problem greater than any other college's," ante at 6, a drug use
comparable to other public colleges in America today almost certainly presents Linn
State's governing apparatus and its executive administrators with substantial health,
safety and, security problems, all of which are specifically ameliorated by the
College's well-conceived drug-testing and screening program.

       Further, the Supreme Court does not require specific evidence of drug use or
abuse among those tested to support a drug-testing policy as that in place at Linn
State. Indeed, the level of evidence required by the Supreme Court is often inversely
related to a governmental interest at issue, as is the case here. That is, this great
immediacy, as here undeniably dramatized by the recent Surgeon General's Report,
prompts the need for less specific evidence of a demonstrated drug-use problem. Von
Raab, 489 U.S. at 673-75. I concede that the Court, in Chandler v. Miller, stated
"while [a demonstrated problem of drug use is] not in all cases necessary" such
"would shore up an assertion of special need for a suspicionless general search
program." 520 U.S. 305, 319 (1997). However, Chandler presented political-
candidate requirement issues wholly unrelated to the intimate mix of dangerous and
nondangerous educational activities at work at Linn State.

                                          -25-
II.   DISCUSSION

      A.     The Testing/Screening

       The record indicates that in the face of the undeniable burgeoning of illicit drug
use, especially among younger Americans, Linn State's governing Board of Regents,
along with administrative and educational staff participation, commenced an analysis
of the illicit drug menace at the institution and the need for drug screening through a
reasonably conceived student drug-testing program. Such effort produced the
testing/screening program at issue in this litigation. The testing formulations are fully
explicated in both the vacated panel opinion and the court's current work product and
need not be repeated in detail here. The record indicates that after the drug screening
was formally instituted at Linn State, but before the procedures had actually begun,
the American Civil Liberties Union sent Linn State a letter threatening litigation in
full-throated opposition to the program.

      B.     The Class

       The record further indicates that several lawyers associated with the ACLU
spent several days on the Linn State campus attempting to recruit students to represent
a Rule 23(b)(2) class opposing the testing without success. But finally after several
attempts, the lawyers managed to recruit four students who agreed to become the
purported class.

        It is now virtually certain that no named class plaintiff is any longer a student
at Linn State. Thus, the members of the class individually lack standing. While this
does not totally doom the case, Oetting v. Norton, 795 F.3d 886, 891 (8th Cir. 2015),
it at least makes the issues now presented by the ACLU barely, if at all, justiciable.
When faced with the class's allegations in this case, it became clear that the ACLU's
attorneys' agenda and the interests of the purported class members were in

                                          -26-
irreconcilable conflict. The district court in response to this problem sought to
mitigate this issue as follows: "it is ultimately the Plaintiffs that control settlement
and prosecution of the [class action] lawsuit, not their attorneys." In this particular
case, I believe this pronouncement was, and remains, fanciful. I also believe that it
would not be a gross departure from fact to conclude that this litigation, as it is now
positioned, could reasonably be captioned ACLU v. Linn State College.

        Indeed, taking judicial notice of www.aclu.org and related web sites, one finds
from these publicly published sources that the organization, with regularity, aligns
itself in opposition to drug testing and screening in most, if not every, conceivable
situation that arises, especially when educational endeavors are at stake, such as at
Linn State. My search of its public emanations fails to identify even one piece of
ACLU-sponsored litigation that supports drug testing and screening. Perhaps there
may be a matter or two, but a diligent search of these public emanations failed to
isolate a single, reasonably discernible instance in which the organization supported
drug testing or screening.

      C.     This Litigation

             1.     Court Action to Date

       As noted in the court's "Procedural History," ante at 8, the district court readily
embraced the ACLU's siren song of absolute opposition to Linn State's drug testing
and screening policies and procedures. In this regard, the ACLU's purported class
sought a declaration that Linn State's policy was facially unconstitutional and sought
injunctive relief. Soon thereafter, as explained by the court, the district court granted
the requested across-the-board injunction. Ante at 9.

       A unanimous panel of this court then reversed the district court and remanded
the dispute for further consideration. Ante at 9. The purported class immediately

                                          -27-
amended its complaint to "make[] clear that Plaintiffs seek as-applied relief." Ante
at 9. In such posture, the district court upheld Linn State's drug-testing requirement
for students in what it termed Linn State's "safety-sensitive" programs, ante at 10-11,
and permanently enjoined, as unconstitutional, Linn State's requirement of drug
testing in non-safety-sensitive programs. Ante at 11. A divided panel of this court
again reversed this program-by-program analysis. See Kittle-Aikeley v. Claycomb,
807 F.3d 913 (8th Cir. 2015). But, the court en banc vacates the panel opinion, grants
rehearing en banc and now improvidently joins the district court in concluding that the
court is better equipped than the governing body and staff of the College to provide
a safe, healthy and productive educational environment for Linn State students.

       But, just as the divided panel majority correctly explicated, using Title VII
employment litigation by example, this court does not sit as a super-governing body
or Board of Regents in replacement of those already duly and legally selected. Bone
v. G4SYouth Servs., LLC, 686 F.3d 948, 955 (8th Cir. 2012). And the court should
not, and cannot, operate as course-of-study-content experts discerning the relative
safety issues arising from or around various programs, educational or otherwise,
offered at a technical school where significant safety risks abound.

             2.     Further Issues

        As earlier stated, I concur in the court's conclusion that Linn State easily
satisfies any requirements concerning drug testing and screening of students
participating in the College's so-called safety-sensitive programs, specifically those
programs posing significant safety risks to others. Ante at 15. However, I dissent
from the court's reasoning in support of the district court's refusal to uphold student
drug testing directed at (1) risk of harm to themselves, other students, instructors and
other involved individuals, ante at 15, and (2) testing and screening designed to foster
"a drug-free environment" on Linn State's campus, ante at 16.



                                         -28-
       The court contends that Linn State has not shown that fostering a drug-free
campus environment is a need defined and protected by Supreme Court precedent
given the facts at work in this case. In support, the court states "[w]e note that no
crisis sparked the [Linn State] Board of Regents' decision to adopt the drug-testing
policy and that Linn State does not believe it has a student drug-use problem greater
than that experienced by other colleges." Ante at 16-17. Based upon the Supreme
Court's drug abuse finding in Von Raab, 489 U.S. at 674, the Surgeon General's
Report, The Comprehensive Addiction and Recovery Act of 2016 and the Sentencing
Commission Statistical Information Packet set forth in the Introduction, the above-
quoted "no crisis" court language is totally incorrect. A severe, relevant and
discernible drug crisis supportive of Linn State's actions does exist and has existed
every moment relevant to this litigation. And, contrary to the court's quotation from
Chandler, 520 U.S. at 319, ante at 17, concerning, in that case, a notable lack of
evidence sufficient to establish a concrete danger of damages sufficient to demand a
departure from Fourth Amendment rules, the ambience outlined in the Introduction
to this dissent makes Chandler factually inapposite here.

       The court concedes that a stated purpose of Linn State's drug-testing 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." Ante at 6. In this regard, Linn State argues that
fostering such an environment in all educational departments, and not just those that
are safety sensitive, justifies disregarding warrant and probable cause requirements.
The district court, and now this court, disagree, citing Chandler. Chandler is
inapposite in this case.

      Quoting from Chandler, the court says:

      Georgia asserts no evidence of a drug problem among the State's elected
      officials, those officials typically do not perform high-risk, safety-


                                        -29-
      sensitive tasks, and the required certification immediately aids no
      interdiction effort. The need revealed, in short, is symbolic, not
      "special," as that term draws meaning from our case law.

Ante at 16 (quoting Chandler, 520 U.S. at 321-22).

       The court seems to ignore the fact that the Board of Regents administers an
educational program involving at least five high-risk safety-sensitive programs
intermixed with several other less safety-sensitive courses of study in the midst of a
drug crisis on many, if not most, college campuses, including Linn State, that it seeks
not to recognize. From these conclusions by the court, I dissent.

             3.     Program-by-Program Analysis

       The court improvidently rejects Linn State's concerns bottomed upon the
management of an intermixed student population pursuing educational endeavors
consisting of drug-tested, safety-sensitive and untested, non-safety-sensitive
enrollments living and studying, in some cases, side-by-side or with each other, on a
daily basis.

       The court justifies the college management role that it and the district court
have undertaken in this case based upon precedent it purportedly derives from Von
Raab. In Von Raab, the Court separated its analysis into three categories, mandating
testing in two categories based upon sensitive knowledge obtained, or sensitive
equipment used by, employees. 489 U.S. at 660-61, 667.

       The third category of employees in Von Raab handled classified material, the
commodity that required drug interdiction (i.e., drug testing), but it included a very
broad range of positions including, to name but a few, accountants, animal caretakers,
attorneys, baggage clerks, co-op students, and four other similar jobs. Id. at 678.


                                         -30-
While the Supreme Court determined that the government had demonstrated a
compelling interest in safeguarding the country's borders, it also determined that on
the "present record" it was unable "to assess the reasonableness of the Government's
testing program." Id. at 677. Accordingly, the matter was remanded to the Fifth
Circuit from whence it had appealed. Id. at 677-79.

       The Circuit, in turn, remanded the case to the District Court for the Eastern
District of Louisiana for further consideration. Nat'l Treasury Emps. Union v. Von
Raab, 876 F.2d 376 (5th Cir. 1989). The employee Union in Von Raab, like the
ACLU in this case, argued for limited testing of members of the Union, seeking to
eliminate many of the positions from the testing program. Nat'l Treasury Emps.
Union v. Hallett, 756 F. Supp. 947, 953 (E.D. La. 1991). Upon remand, however, it
was determined that a much larger aggregation, not the smaller group demanded by
the Union, should be tested. Id. The district court found that the Union's view of the
class to be tested was much "too narrow" and that employment background
information, possibly akin to college enrollment applications, significantly reduced
the employees "privacy expectation" with regard to the testing. Id.

       The court contends that "Von Raab . . . teaches that the special-needs analysis
is not conducted at a high order of generality, but in a more specific and categorical
manner." Ante at 20-21. But, if anything, Von Raab, properly interpreted, actually
demands a high order of generality in the matter of permitting testing, not the tightly
specific categorical view, adopted by the court in this case.

III.   EPILOGUE

       By affirming at least part of Linn State's drug testing effort, the court appears
to fully accept Von Raab's analysis of the existence of an illicit drug-abuse problem
at the College like that found at most other public colleges and universities in
America. Otherwise, there would be no bases for the court's affirmance of the district

                                         -31-
court's validation of Linn State's drug-testing requirements for its "safety-sensitive
educational programs." Ante at 21.

       There is no reason, however, to assume that Linn State's students pursuing an
education in its non-safety-sensitive programs are not likewise fully impacted by the
same illicit drug-abuse crisis. Indeed, there is no evidence that they are not. Thus, the
court's various emanations in its opinion that these students suffer no drug crisis is,
as earlier indicated, factually unsupportable. But, nonetheless, the court chooses to
enjoin the College from also requiring the same drug-testing and screening program
as for the safety-sensitive program students.

       It is almost certain that a non-safety-sensitive student affected by illicit drug
abuse and addiction will be just as likely as a safety-sensitive student to injure or be
injured by a classmate, teacher, or stranger, or to misuse a motor vehicle, become
physically or mentally impaired or perform myriad other untoward acts damaging to
self or others on the Linn State campus.

      The court seeks to duck this inconsistent and untoward result through its
"misclassification" approach based upon precedent purportedly gleaned from Von
Raab. For the reasons fully set forth earlier, this course of action by the court is
simply untenable.

      I continue to believe that the court's prior opinion in this matter was correctly
reasoned and formulated. Accordingly, I dissent and concur as stated above.
                       ______________________________




                                          -32-
