The ACLU of Missouri plans to appeal last week's federal court ruling upholding the State Technical College of Missouri's plans to give drug tests to every incoming student.
Tony Rothert, the ACLU's legal director, told the News Tribune this week the St. Louis-based 8th U.S. Circuit Court of Appeals set a Jan. 4 deadline for the ACLU to file its petition seeking a re-hearing by either the same three-judge panel that issued last week's ruling or by all of the active 8th Circuit judges.
"We intend to request both," Rothert said. "While rehearing is difficult to obtain, we are fortunate in this case to have a majority decision that is poorly crafted and departs from 8th Circuit and Supreme Court precedent."
The ACLU filed the federal lawsuit in 2011 - before Linn State changed its name to State Technical College - challenging a mandatory drug-testing policy the school's Board of Regents approved in June 2011, to be effective with the fall classes.
The lawsuit argued the policy violated the students' Fourth Amendment right "to be secure ... against unreasonable searches and seizures."
At the time it started the program, the school said the testing policy was intended "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."
Students had to pay a $50 fee for the drug test and could be blocked from attending if they refused to be tested.
U.S. District Court Judge Nanette Laughrey initially issued a preliminary injunction, but the appeals court reversed her ruling "because we were unable to hold that the drug-testing policy is unconstitutional on its face in every conceivable circumstance," as the ACLU had argued.
After hearing more arguments, Laughrey issued the Sept. 13, 2013, ruling that limited the drug testing to five Linn State programs.
In its 2-1 vote last week, the federal appeals court panel overturned that ruling, saying it had been too narrow.
"At bottom, on these facts and given the nature and inherent risks involved with the majority of Linn State's offerings," Judge C. Arlen Beam wrote for the two-judge majority, "we need not go past the stated safety risks obviously at play in Linn State's programs and become curriculum and student-management experts."
Later in the court's 20-page ruling, Beam wrote: "Linn State's student population (of) roughly 1,200 students are primarily engaged in safety-sensitive and potentially dangerous curriculum due to the unique nature of this particular vocational and technical college and its limited focus."
But federal Judge Kermit E. Bye disagreed with the majority opinion, and said in an eight-page dissent he would have upheld Laughrey's permanent injunction against the drug testing "for all but five of Linn State's academic programs."
He said Laughrey's "program-by-program analysis is correct," and Linn State "failed to present sufficient evidence demonstrating a special need for drug testing."
Rothert said Bye's "well-reasoned dissent pointing out several of the ways the majority departed from precedent and the record" will help the ACLU make its case for a re-hearing, meaning "the majority opinion should be an attractive candidate for review."
The court's deadline gives Rothert and his staff less than three weeks - including three weekends and two holidays - to write the re-hearing motion.
"Once filed, our petition for rehearing will be distributed to all active judges, any one of whom can call for a vote on re-hearing," Rothert explained. "A majority of the judges must vote to re-hear a case.
"Fortunately, the mandate will not be issued and the injunction will remain in place as this process plays out."
Last week, Kent Brown - a Jefferson City lawyer who has represented State Tech in the case - said he expected the ACLU to appeal, but also expected the 8th Circuit's decision to "be the last word on the State Technical College of Missouri's drug testing policy."
Rothert thinks a re-hearing will prove Brown to be wrong.