On November 17 1987 this court issued the opinion in Jones v. McKenzie 266 U.S. App. D.C. 85 833 F.2d 335 (D.C.Cir. 1987). On April 3 1989 the Supreme Court vacated our judgment and the case was remanded for further consideration in light of Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 103 L. Ed 2d 639 109 S. Ct. 1402 (1989) and National Treasury Employees Union v. Von Raab 489 U.S. 656 103 L. Ed. 2d 685 109 S. Ct. 1384 (1989). See Jenkins v. Jones 490 U.S. 1001 109 S. Ct. 1633 104 L. Ed. 2d 149 (1989).

Upon consideration of the Supreme Court's decisions in Skinner and Von Raab and in consideration of the briefs submitted by the parties in light of the Supreme Court's remand and upon further consideration of the record in this case it is

ORDERED on Court's own motion that the penultimate paragraph of Part II-B of the opinion in Jones v. McKenzie (beginning with "Furthermore" and ending with "suggest the contrary") be deleted and that the penultimate paragraph of the opinion (just before the "Conclusion" beginning with "Second" and ending with "legitimately concerned") also be deleted. See 833 F.2d at 339 and at 340-41. In place of the second deletion at 833 F.2d at 340-41 the following language is hereby substituted:

Second in seeking to ensure that employees involved in the transportation of handicapped children not be under the influence of drugs while on duty the School System clearly had a legitimate justification for the drug testing program. Hence we find that the drug testing "program bears a close and substantial relation to the [Government's] goal of deterring drug use []" on the job. National Treasury Employees Union v. Von Raab 489 U.S. 656 109 S. Ct. 1384 1396 103 L. Ed. 2d 685 (1989). Of course a drug test administered by the School System "need not conclusively prove the ultimate fact in issue" to be "relevant to an inquiry." Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 103 L. Ed. 2d 639 109 S. Ct. 1402 1421 (1989) (quoting New Jersey v.

T.L.O. 469 U.S. [325] at 345 105 S. Ct. 733 83 L. Ed. 2d 720). "For example a positive test result coupled with known information concerning the pattern of elimination for the particular drug and information that may be gathered from other sources about the employee's activities may allow the [Government] to reach an informed judgment" regarding possible drug use. Id. The main point is that on the present record a drug testing program by the School System "is not an undue infringement on the justifiable expectations of privacy of covered employees and, therefore, the Government's compelling interests outweigh privacy concerns." Id.

It is FURTHER ORDERED that in all other respects the opinion and judgment of this court shall remain as presently reported at Jones v. McKenzie 266 U.S. App. D.C. 85 833 F.2d 335 (D.C.Cir. 1987).