Spotsylvania School Board member Jennifer Craig-Ford is seeking an opinion from the Virginia attorney general on the issue of pre-employment drug testing of teachers and other school-based positions.
Craig-Ford, Battlefield District representative, sent emails this week to local legislators, asking them to request an official opinion addressing four key questions:
- Whether Virginia law authorizes a local school board to require suspicion-less pre-employment drug testing
- If so, under what circumstances may classroom teachers, elementary-school employees, special-education employees, or other employees with direct student contact be classified as occupying safety-sensitive positions
- Whether the U.S. Constitution’s Fourth Amendment and Article I, Section 10 of the Virginia Constitution impose any limits on a testing program
- Whether legality differs when testing is limited to new hires and rehires, particular categories of employees, or a limited panel of controlled substances
Craig-Ford was among the majority of Spotsylvania School Board members who voted earlier this month not to implement drug testing of new hires and rehires who work directly with students in any capacity.
The school division drug tests applicants for bus driver positions who hold commercial driver’s licenses, as this is mandated by federal law, and also has the ability to test non-CDL employees, such as teachers, who are suspected of using drugs.
According to information presented by the human resources department at the July 13 School Board meeting, post-employment, suspicion-based drug tests have resulted in one employee termination each fiscal year since 2024.
No other school division in Virginia requires pre-employment drug testing. Richmond City and Virginia Beach public schools briefly had pre-employment drug testing programs in place, but terminated them.
The two School Board members who most vehemently supported the drug-testing program — Lee Hill representative Rich Lieberman and Berkeley representative Larry DiBella — said it would help ensure student safety.
In one high profile incident in May 2024, a second grade teacher at Spotswood Elementary was arrested and found guilty of possessing drugs in her classroom.
Craig-Ford told the Free Press this week that her “no” vote was not a vote against student safety, but came out of her concerns about the legality of implementing a suspicion-less, pre-employment drug testing program.
That’s why she is seeking an opinion from the attorney general, she said.
“It’s an unsettled area of law throughout the United States,” said Craig-Ford, who is an attorney. “And it’s a very complex area of law. There are a lot of different factors that don’t make good soundbites.”
In her email to legislators, Craig-Ford wrote, “Unfortunately, much of the public discussion [and local and national media coverage] has reduced a complicated constitutional and statutory question to a false choice between drug testing and student safety. That framing ignores the obligation of a public employer to comply with the Fourth Amendment, Article I, Section 10 of the Virginia Constitution, and the limitations placed upon local school boards as creatures of statute.”
The Fourth Amendment protects Americans from “unreasonable search and seizure.” In a January 2000 opinion, then-Attorney General Mark Earley, a Republican, found that suspicion-less drug-testing of teachers “must be reasonable under Fourth Amendment standards and relatively unobtrusive,” and that the interest of a school board in conducting such testing must be balanced against individual privacy concerns.
Such a balancing test should focus on whether “a pronounced drug problem exists within the targeted group” and “the magnitude of harm that could result from use of illicit drugs.”
“Reasonableness of any search depends on facts of each particular case,” wrote Earley in his opinion, which was prepared at the request of then-State Sen. Charles Hawkins.
Earley’s opinion also refers to a 1987 Virginia attorney general opinion finding that “the Commonwealth may not legally impose, as a precondition to employment, mandatory drug testing for new employees” and that “the balance of interests in most work situations requires that drug testing be conducted only on the basis of at least ‘reasonable suspicion.’”
Craig-Ford wrote to legislators that Earley’s opinion “concluded that the constitutionality of such testing depends upon the particular facts, including whether the targeted positions are genuinely safety-sensitive, the strength of the school board’s demonstrated need, the magnitude of potential harm, the individual privacy interests involved, and the nature and intrusiveness of the testing procedure.”
She continued, “This existing opinion reinforces the need for updated, fact-specific guidance. It is more than 26 years old … and does not evaluate the specific proposal considered in Spotsylvania.”
Del. Nicole Cole (D-Spotsylvania) said she and Del. Josh Cole (D-Fredericksburg) will be sending a joint letter to Attorney General Jay Jones requesting him to prepare a legal opinion addressing Craig-Ford’s questions.
“We’ve reached out to talk with the attorney general’s staff about it as well,” Nicole Cole said.
Craig-Ford said she is concerned about media reports giving the impression that the school division doesn’t do drug testing at all.
“We’re able to do suspicion-based testing of anyone. And we do it,” she said.
