Kittle-Aikeley v. Strong

844 F.3d 727

Branden KITTLE-AIKELEY; Michael Barrett, IV; Jacob Curliss; John Doe, Plaintiffs-Appellees

v.Dr. Shawn STRONG, in his official capacity as President of State Technical College of Missouri;

Toni R. Schwartz, in her official capacity as member of the State Technical College of Missouri Board of Regents; John Klebba, in his official capacity as member of the State Technical College of Missouri Board of Regents, Defendants-Appellants

Christopher T. Davidson, Defendant

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

Mark J. Collom, in his official capacity as member of the State Technical College of Missouri Board of Regents; Erick V. Kern, in his official capacity as member of the State Technical College of Missouri Board of Regents; J. Scott Christianson, in his official capacity as member of the State Technical College of Missouri Board of Regents, Defendants-Appellants

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

No. 13-3264

No. 14-1145

United States Court of Appeals, Eighth Circuit.

Submitted: April 13, 2016

Filed: December 22, 2016

Kent L. Brown, Jefferson City, MO, argued (Judith Anne Willis, on the brief), for appellants.

Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation, St. Louis, MO, argued (Grant R. Doty, American Civil Liberties Union of Missouri Foundation, St. Louis, MO, Jason D. Williamson, American Civil Liberties Union, New York, N.Y., Gillian R. Wilcox, American Civil Liberties Union of Missouri Foundation, Kansas City, MO, on the brief), for appellees.

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 this court reversed both the permanent injunction and the fee award. Kittle – Aikeley v. Claycomb, 807 F.3d 913 (8th Cir. 2015). We granted the Students' petition for rehearing en banc, and we now affirm the judgment, except to the extent that it orders the defendants to refund any fees that Linn State had charged for unconstitutional drug testing. We dismiss for lack of jurisdiction Linn State's appeal from the tentative grant of attorneys' fees and costs.

I. Background

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

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

A. Drug Testing and Drug Use at Linn State

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

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

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

B. Linn State's Mandatory Drug-Testing Policy

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

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

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

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

Students who refused to submit a urine sample would not be allowed to remain enrolled at Linn State unless the college waived the drug-testing requirement. Students could seek a waiver by petitioning the Office of the President. According to the college, its students could "advance any justification for the request," including "unique health issues, technical concerns, participation in another similar program, exclusive participation in campus programs which do not pose unique health and safety issues, moral objections, philosophical objections, religious objections, and legal...