This case involves a suit by the appellee Juanita Jones against the District of Columbia and those officials in the District of Columbia Public School System responsible for the employee drug-use surveillance program. *fn1 Ms. Jones who had been employed in the Transportation Branch challenged the School System's decision to discharge her for an alleged violation of a directive prohibiting school personnel from using possessing or being under the influence of illicit drugs while on school premises. In granting summary judgment in appellee's favor the District Court ordered Ms. Jones reinstated with full backpay seniority and benefits; enjoined the appellants from terminating Ms. Jones on the basis of the EMIT drug test without confirmation from some adequate alternative testing device; and enjoined the appellants from administering any urinalysis drug test to Ms. Jones "without first establishing probable cause to believe that she is using or under the influence of illicit drugs based on specific objective facts." The School System has appealed only that portion of the District Court's order that prohibits compulsory drug testing without "probable cause."

On the record before us we find that it is not unreasonable to require drug testing where an employee's duties involve direct contact with young school children and their physical safety where the testing is conducted as part of a routine reasonably required employment-related medical examination and where there is a clear nexus between the test and the employer's legitimate safety concern. We therefore reverse the District Court's judgment 628 F. Supp. 1500 pertaining to probable cause, and vacate that portion of its injunction from which appeal was taken.

I. BACKGROUND

In 1984 the School System initiated a program of mandatory drug testing for employees in its Transportation Branch. These employees included bus drivers mechanics and bus attendants whose primary duty was the daily transportation of handicapped students between their homes and schools. *fn2 The drug testing program had its impetus in growing concern among School System officials over a perceived "drug culture" in the Transportation Branch. There were repeated incidents of bizarre or dangerous drug-related behavior by drivers and attendants while on duty; *fn3 syringes and bloody needles were found in restrooms used by Transportation Branch employees; and the head of the Branch estimated "that 60 % of the employees assigned to the Transportation Branch are using narcotics to some extent." Letter from William French to William Bedford (May 17 1984) ("French Letter") Record Excerpts ("R.E.") 34-35; Defendants' Interrogatory Answer 6 R.E. 48. Efforts to deal with the problem had yielded only mixed results. French Letter R.E. 35-36.

The School System's concern about drug use culminated in Superintendent's Directive .1 issued June 12 1984 which provided for mandatory urinalysis testing "of all employees who are or will be required to undergo medical examinations to determine physical fitness for licensing and other employment-related reasons." R.E. 39. *fn4 It added that a "confirmed finding of an illicit narcotic substance in the urine of an employee" or a refusal to submit to testing would be "grounds for termination." R.E. 40. The employees were informed in advance that the physical examinations would include urinalysis testing for drugs. Bedford Memorandum (June 22 1984) R.E. 43. Both Directive 205.1 and the notification to employees explained that the purpose of the drug tests was the enforcement of Superintendent's Directive 662.13 dating from 1977 which prohibited school personnel "to possess use or be under the influence of intoxicating liquors narcotics or other drugs such as LSD marijuana and the like while on school premises." Supplemental Record Excerpts ("S.R.E.") 87.

Pursuant to the newly issued directive Transportation Branch employees were administered physical examinations at a clinic during the summer of 1984. As is the normal procedure in medical examinations they were permitted to produce their urine specimens in the privacy of a restroom. The urine samples were tested with the EMIT Cannabinoid Urine Assay. A total of 26 Transportation Branch employees classified as WAE (when actually employed) tested positive for illegal drugs and were terminated. Defendants' Interrogatory Answer 19 & attachment C Record Document ("R.D.") 18. *fn5

Appellee Juanita Jones was employed on a WAE basis as a school bus attendant in the Transportation Branch beginning in February 1981. As such she was paid for hours actually worked (averaging 30-35 per week) received no leave or other benefits and was reemployed each year for a one-year term "subject to the availability of funds." In her job Jones was responsible for assisting handicapped children on and off the bus. In some cases this required physically carrying the child. She was also responsible for ensuring that the children were properly seated and for maintaining order during the sometimes lengthy bus trips. She was considered to be an excellent employee. S.R.E. 30 56 82-86.

Jones underwent a physical examination and was tested for drugs along with other Transportation Branch employees in the summer of 1984. Her test was positive for THC metabolites an indication of marijuana use. *fn6 Upon learning of Jones' test result the School System terminated her employment. Following the School System's denial of Jones' request for a hearing and its rejection of her written appeal she filed suit in the District Court seeking injunctive relief and damages under 42 U.S.C. sec 1983 for violation of her rights under the Fourth and Fifth Amendments and District of Columbia statutes.

On February 25 1986 the District Court entered partial summary judgment for Jones. It held that her termination on the basis of a single unconfirmed EMIT test without a hearing was arbitrary and capricious and thus violative of District of Columbia law. *fn7 It also held that in the absence of particularized probable cause, requiring her to submit to drug testing was an unreasonable search. The trial court ordered Jones reinstated with full backpay seniority and benefits; ordered that any mention of the termination be expunged from her personnel records; enjoined the School System from terminating her on the basis of the EMIT test without adequate confirmation by other means; required that any future termination be preceded by meaningful notice and an opportunity to be heard and followed by the right to a hearing; and enjoined the School System from administering any drug test to her "without first establishing probable cause to believe that she is using or under the influence of illicit drugs based on specific objective facts." Jones v. McKenzie 628 F. Supp. 1500 (D.D.C. 1986) (order) reprinted at R.E. 31-32; Jones v. McKenzie 628 F. Supp. 1500 (D.D.C. 1986). Jones' claim for damages was subsequently settled.

The School System has acquiesced in most of the District Court's order. It appeals only the trial court's Fourth Amendment ruling which prohibits the administration of any drug test without probable cause.

II. ANALYSIS

A. The Legal Framework

The Fourth Amendment protects against unreasonable searches and seizures by Government officials in civil as well as criminal contexts. O'Connor v. Ortega 480 U.S. 709 107 S. Ct. 1492 1497 94 L. Ed. 2d 714 (1987) (plurality opinion); New Jersey v. T.L.O. 469 U.S. 325 335 83 L. Ed. 2d 720 105 S. Ct. 733 (1985). To determine whether a given governmental activity is of the kind that is prohibited by the Fourth Amendment we must first ask whether the action is a "search and, if it is, whether it is unreasonable."

The first inquiry need not detain us long. A "search" is a governmental action that infringes "an expectation of privacy that society is prepared to consider reasonable." United States v. Jacobsen 466 U.S. 109 113 80 L. Ed. 2d 85 104 S. Ct. 1652 (1984). This court and virtually all others that have passed on the issue have held mandatory urinalysis of public employees to be a "search" which implicates the Fourth Amendment. See e.g. National Fed'n of Fed. Employees v. Weinberger 260 U.S. App. D.C. 286 818 F.2d 935 942 (D.C. Cir. 1987) ("NFFE"); National Treasury Employees Union v. Von Raab 816 F.2d 170 176 (5th Cir. 1987); McDonell v. Hunter 809 F.2d 1302 1307 (8th Cir. 1987); Patchogue-Medford Congress of Teachers v. Board of Educ. 70 N.Y.2d 57 67-68 510 N.E.2d 325 329-30 517 N.Y.S.2d 456 460-61 (1987). *fn8 Even if as in this case the urine specimen is collected under conditions which do not seriously invade the individual's privacy analysis of the urine permits the Government to inquire into the employee's private life. It is beyond dispute that this constitutes a "search" for purposes of the Fourth Amendment.

While the second inquiry -- whether the search is a "reasonable" one - is more difficult our framework for analysis has been clearly laid out in decisions of the Supreme Court and this court. See O'Connor 107 S. Ct. at 1499; T.L.O. 469 U.S. at 337-43; NFFE 818 F.2d at 942-43. We are required to balance the intrusion on the individual's Fourth Amendment interests i.e. the privacy expectations which society recognizes as legitimate against the governmental interest involved such as the public employer's interest in "the efficient and proper operation of the workplace." O'Connor 107 S. Ct. at 1502. In striking this balance we must consider both whether the search was justified at its inception and whether the search as actually carried out was reasonably related to its objectives and not excessively intrusive. T.L.O. 469 U.S. at 341-42; NFFE 818 F.2d at 943. *fn9

B. The Narrow Question Presented in this Case

Before applying this framework to the facts of the present case we think it important to make clear the narrow focus of our inquiry. The only issue in this case is the propriety of the District Court's blanket injunction prohibiting any drug testing in the absence of probable cause. The School System does not argue that it can require drug tests absent individualized suspicion outside the context of a regular employment-related medical examination and no claim has been raised that the annual physical examination required of Transportation Branch employees is anything but that. Thus this case focuses solely on drug testing in the context of a regular medical examination for employment purposes; it does not pose the question of what measures the School System could constitutionally take outside this context e.g. what level of suspicion might be required for random or individualized testing.

Furthermore the School System has conceded that the EMIT test is not a valid measure of whether the subject is in possession of is using or is under the influence of illicit drugs at the time of the test. As this test therefore lacks a sufficient nexus to the appellant's legitimate concern that its employees not possess use or be under the influence of drugs while on duty it is clear that the School System could not constitutionally test its employees for drugs in the manner Jones was tested and our analysis should not be read to suggest the contrary.

Finally as the School System chose not to appeal that portion of the District Court's injunction ordering the plaintiff reinstated with full backpay and benefits we have no occasion to consider the legality of possible sanctions for illicit drug use. We do not consider for example whether an employee may be automatically discharged in such a case.

C. Application of the Law to the Facts of this Case

Having thus delimited the scope of our inquiry we now apply the balancing test to the facts of this case. We note first that strong privacy interests are involved here. Because drug tests often furnish information about employee activities occurring outside of working hours such tests may provide Government officials with a periscope through which they can peer into an individual's behavior in her private life even in her own home. As one court has put it drug testing is "a form of surveillance which reports on a person's off-duty activities just as surely as [if] someone had been present and watching." Capua v. City of Plainfield 643 F. Supp. 1507 1511 (D.N.J. 1986). Moreover unlike the situation where an employee's office files are searched a person cannot avoid the intrusion on her privacy associated with compulsory urinalysis by simply leaving [personal belongings] at home. O'Connor 107 S. Ct. at 1502. *fn10 These privacy interests can be outweighed only by strong governmental concerns.

Here there are serious safety concerns on the other side of the balance. There can be no doubt whatsoever that the School System's mission of safely transporting handicapped children to and from school cannot be ensured if employees in the Transportation Branch are allowed to work under the influence of illicit drugs. Any suggestion to the contrary would be preposterous. The case law on this point is clear that a governmental concern is particularly compelling when it involves the physical safety of the employees themselves or of others. See e.g. Allen v. City of Marietta 601 F. Supp. 482 (N.D. Ga. 1985) (approving mandatory urinalysis of employees working around high-voltage electric wires in view of reports of drug use). It is also noteworthy that the safety concern in this case was prompted not only by the nature of the jobs in the Transportation Branch but also by the strong evidence of a veritable "drug culture" among Transportation Branch employees. *fn11 It would have been patently irresponsible for school officials to have ignored this situation.

The District Court correctly focused on these safety concerns but it attempted to draw a distinction in this case between bus drivers and mechanics who might constitutionally be subject to drug testing and bus attendants who could not be. 628 F. Supp. at 1508-09. We disagree with this judgment. While the safety concern may be somewhat greater for a school bus driver it is still quite significant in the case of an employee who is responsible for supervising attending and carrying handicapped children. For example the danger to a young handicapped child should she be dropped by an attendant or ignored while crossing the street is obvious. In light of these safety concerns we find that the School System acted pursuant to a significant and compelling governmental interest in requiring drug testing for Transportation Branch employees as a part of routine employment-related medical examinations. *fn12

If the drug testing was thus "justified at its inception we must also ask whether the search as actually conducted 'was reasonably related in scope to the circumstances which justified the interference in the first place'" - in other words whether "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive." T.L.O. 469 U.S. at 341-42 (quoting Terry v. Ohio 392 U.S. 1 20 20 L. Ed. 2d 889 88 S. Ct. 1868 (1968)). We note here two significant factors. First this case involves only testing that is conducted as part of a routine reasonably required annual medical examination. This has the effect of ensuring that the intrusion on the employee's privacy is minimized.

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. 602 109 S. Ct. 1402 1421 103 L. Ed. 2d 639 (1989) (quoting T.L.O. 469 U.S. at 345). "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.

CONCLUSION

In summary then we hold that it is not unreasonable for the School System to require drug testing of its employees where: (a) the employees' duties have a direct impact on the physical safety of young school children; (b) the testing is conducted as part of a routine reasonably required employment-related medical examination; and (c) the test employed is one that has a nexus to the employer's legitimate safety concern.

For these reasons we reverse the District Court's judgment pertaining to "probable cause and vacate that portion of its injunction from which appeal was taken.