International Union v. Janine Winters, et al., in their Official Capacities, Jointly and Severally

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0337P (6th Cir.)
File Name: 04a0337p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
INTERNATIONAL UNION;
UNITED AUTOMOBILE,
AEROSPACE AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA;
LOCAL 6000,
Plaintiffs-Appellants,
v.
JANINE WINTERS, et al., in
their Official Capacities,
Jointly and Severally,
Defendants-Appellees.
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No. 03-1574
Appeal from the United States District Court
for the Western District of Michigan at Lansing.
No. 00-00021—David W. McKeague, District Judge.
Argued: August 5, 2004
Decided and Filed: September 30, 2004
Before: KENNEDY, SUTTON, and COOK, Circuit
Judges.
2 International Union, et al. v.
Winters, et al.
No. 03-1574
_________________
COUNSEL
ARGUED: George B. Washington, SCHEFF &
WASHINGTON, Detroit, Michigan, for Appellants. Susan
Przekop Shaw, OFFICE OF THE ATTORNEY GENERAL,
LABOR DIVISION, Lansing, Michigan, for Appellees.
ON BRIEF: George B. Washington, SCHEFF &
WASHINGTON, Detroit, Michigan, for Appellants. Susan
Przekop Shaw, OFFICE OF THE ATTORNEY GENERAL,
LABOR DIVISION, Lansing, Michigan, Denise C. Barton,
OFFICE OF THE ATTORNEY GENERAL, PUBLIC
EMPLOYMENT & ELECTIONS DIVISION, Lansing,
Michigan, for Appellees.
_________________
OPINION
_________________
KENNEDY, Circuit Judge. The Plaintiffs, International
Union, United Automobile, Aerospace, and Agricultural
Implement Workers of America (UAW), and its affiliated
Local 6000 (hereinafter referred to collectively as “UAW”),
appeal from the district court’s judgment holding that a
random drug testing program implemented for select
Michigan civil service employees, including probation and
parole officers, non-custodial employees in prisons, and
medical personnel who deliver medical or psychological
services to persons in state custody, does not violate the
Fourth Amendment. The district court reached this
conclusion as it found that the state established sufficient
“special needs,” based upon substantial public safety
concerns, which overrode the intrusion on the Fourth
Amendment rights of the employees subject to the drug

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1The parties subm itted the m atter to the district co urt for judgment
based on stipulated facts and briefs in lieu of trial.
2Although the UAW criticizes the district court for not examining
every “job,” the district court did not need to evaluate each individual
position because the UAW agreed to a stipulation that each of the 2,855
positions, occupied by employees it represents, requires duties, in varying
amounts, within one or more of the four challenged categories. Indeed,
the UA W made this stipulation and agreed to admit a representative
samp le of position descriptions. Thus, the UAW waived the argument
concerning the need to evaluate each job description.
testing.1 We agree with the district court’s conclusion, and
AFFIRM.
BACKGROUND
The UAW represents approximately 20,000 State of
Michigan employees. Under the Michigan Constitution, the
Michigan Civil Service Commission has the power to regulate
the terms and conditions of employment for the State’s civil
service. On May 20, 1999, the Commission adopted a
random drug and alcohol testing program, essentially
borrowing protocols and procedures issued by the United
States Department of Health and Human Services and
Department of Transportation. The testing program was
incorporated into the 1999-2001 Collective Bargaining
Agreement between the UAW and the State of Michigan.
Article 52 of the Agreement identifies seven categories of
“test-designated positions” that are subject to testing. The
UAW represents 2,855 employees who occupy test-
designated positions, all in the following four categories:2
Category 2: A position in which the incumbent
possesses law enforcement powers or is
required or permitted to carry a firearm
while on duty.
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3These employees include Athletic and P rogram Coo rdinators,
Chap lains, Prison Co unselo rs, Rec reational T herap ists, Special Education
Teachers, Dietician/Nutritionists, State Transitional Professionals,
Employment Counselors, Com munication A ssistants, and General Office
Assistants.
Category 3: A position in which the incumbent, on a
regular basis, provides direct health care
services to persons in the care or custody
of the state or one of its political
subdivisions.
Category 4: A position in which the incumbent has
regular unsupervised access to and direct
contact with prisoners, probationers, and
parolees.
Category 5: A position in which the incumbent has
unsupervised access to controlled
substances.
The largest group of UAW represented employees now
being tested consist of probation or parole officers and field
service assistants. These employees are subject to testing
either because they have law enforcement powers, are
required or permitted to carry a firearm while on duty, or have
regular unsupervised access to and direct contact with
probationers or parolees. The UAW does not challenge the
testing of those parole or probation officers who applied for
and maintain their eligibility to carry firearms. Rather, it
challenges the testing of those employees who are subject to
testing only because they possess law enforcement powers or
have access to and contact with probationers or parolees.
The next largest group subject to testing consists of non-
custodial employees who work for the Department of
Corrections or the Department of Community Health within
the perimeter of the state’s correctional facilities.3 These

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employees are subject to testing because they have regular
unsupervised access to and direct contact with prisoners.
A third group of test-designated positions consists of
Department of Corrections and Department of Community
Health employees who provide health care and psychological
care to prisoners. These positions include nurses,
occupational therapists, psychologists and social workers.
Finally, a fourth group consists of Department of
Community Health, Department of Education, and
Department of Military and Veterans Affairs employees who
provide health care and other services to residents at state
hospitals for the mentally ill and developmentally disabled
and to residents of veterans’ homes. These positions include
psychiatrists, psychologists, physicians, dentists, nurses,
therapists, and social workers.
After the district court denied UAW’s claim for declaratory
and injunctive relief and awarded judgment for the State, this
appeal followed. Since the issue in this case concerns the
reasonableness of a Fourth Amendment search, we review the
district court’s decision de novo. Knox County Education
Ass’n v. Knox County Bd. of Education, 158 F.3d 361, 371
(6th Cir. 1998).
ANALYSIS
The Fourth Amendment to the United States Constitution
protects “[t]he rights of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures.” It is beyond dispute that government
ordered collection and testing of urine samples effects a
search within the meaning of the Fourth Amendment as such
tests intrude upon reasonable expectations of privacy that
society has long recognized as reasonable. See Skinner v.
Railway Labor Executives Association, 489 U.S. 602, 619
(1989); National Treasury Employees Union v. Von Raab,
6 International Union, et al. v.
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No. 03-1574
689 U.S. 656, 665 (1989). Because these intrusions are
searches under the Fourth Amendment, we must therefore
review the State’s policy for reasonableness, “which is the
touchstone of the constitutionality of a governmental search.”
Board of Education v. Earls, 536 U.S. 822, 828 (2002). The
Earls Court noted that in “the criminal context,
reasonableness usually requires a showing of probable cause.”
Id. However, the probable cause standard, the court further
noted, “‘is peculiarly related to criminal investigations’ and
may be unsuited to determining the reasonableness of
administrative searches where the ‘Government seeks to
prevent the development of hazardous conditions.’” Id.
(citing Von Raab, 489 U.S. at 667-68). Thus, “in certain
limited circumstances, the Government’s need to discover
such latent or hidden conditions, or to prevent their
development, is sufficiently compelling to justify the
intrusion on privacy entailed by conducting such searches
without any measure of individualized suspicion.” Von Raab,
489 U.S. at 668. Therefore, the Court has recognized, a
search unsupported by individualized suspicion may
nonetheless be reasonable when the government alleges
“special needs,” beyond the normal need for law enforcement,
that are both substantial – important enough to override the
individual’s privacy interest, and sufficiently vital to suppress
the normal requirements of individualized suspicion.
Chandler v. Miller, 520 U.S. 305, 318 (1997).
In reviewing the reasonableness of a drug testing policy, the
Court has instructed that we weigh the extent of the intrusion
upon the privacy interest of the individuals being tested
against the promotion of the government’s proffered special
need in conducting the tests. Earls, 536 U.S. at 830. For
instance, a program may be unconstitutional even if the
intrusion upon the individual’s privacy rights were minimal,
if the government fails to establish a sufficient special need
justifying the intrusion without individualized suspicion. See
e.g. Chandler, 520 U.S. at 318-19. A drug testing program
may also be unconstitutional, conversely, even if the

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government establishes a sufficient special need, if the
intrusion upon the individual’s privacy interest were
excessive, for instance, because of an overly intrusive testing
procedure. In deciding whether the State’s testing program
here was justified by a sufficient special need that outweighed
the privacy interest of those being tested, it is helpful to
briefly review precedent in this area to see how the Supreme
Court and our court have balanced these competing interests.
In Chandler, the Court concluded that the state failed to
proffer a special need that would overcome the general
prohibition against suspicionless searches. 520 U.S. at 322.
The special need in Chandler failed because the state’s
interest was found to be merely symbolic, not special. Id. In
Chandler, the State of Georgia required all candidates who
sought to qualify for nomination or election to a state office
to certify that they had tested negative for drugs. Id. at 309.
In defense of the policy, Georgia asserted that the use of
drugs is incompatible with holding state office since the use
of drugs calls into question an official’s judgment and
jeopardizes the discharge of public functions. Id. at 318-19.
Notably lacking from Georgia’s defense, the Court noted, was
any indication of a concrete danger that would arise by failing
to test these candidates, thus demanding departure from the
individualized suspicion requirement. Id. Rather, the court
opined, since state officials are subject to day-to-day scrutiny,
do not perform safety sensitive tasks, and are not alleged to
have a drug problem, “[w]hat is left ... is the image the State
seeks to project.” This need, the Court concluded, is
symbolic, not special. Id. at 321-22.
In Von Raab, by contrast, the Court found that the
government not only offered a sufficient special need but also
that the special need outweighed the intrusion upon the
privacy rights of the employees subject to the testing. 489
U.S. at 677. In that case, the Customs Service implemented
a program that made drug tests a condition of promotion or
transfer to positions directly involving drug interdiction or
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requiring the employee to carry a firearm. Id. at 660. The
Court concluded that there was a sufficient special need to
test these employees without individualized suspicion because
their work involved drug interdiction; they were required to
carry firearms; they could be subject to bribes or blackmail by
the drug smugglers they were required to interdict; and they
were not subject to the day-to-day scrutiny that is the norm in
the more traditional office environment. Id. at 668-71, 74.
In Earls, the Court concluded that a school may test
students for drugs who participate in extracurricular activities
since the school’s ‘special need’ to “prevent and deter” the
use of drugs by students, where the school is responsible for
maintaining the discipline, health, and safety of those
students, outweighs the student’s limited privacy interest.
536 U.S. at 834, 836. In reaching this conclusion, the Court
first considered “the nature of the privacy interest allegedly
compromised by the drug testing.” Id. at 830. The Court
noted that a “student’s privacy interest is limited in a public
school environment.” Id. The Court further noted that a
student’s expectation of privacy is even further diminished if
the student participates in extracurricular activities, since such
activities are typically heavily regulated. Id.; Cf. Veronica
School Dist. 47J v. Action, 515 U.S. 646, 657 (“Somewhat
like adults who choose to participate in a closely regulated
industry, students who voluntarily participate in school
athletics have reason to expect intrusions upon normal rights
and privileges, including privacy”). After considering the
nature of the privacy interest, the Court next considered the
character of the intrusion imposed by the drug test. Id. at 832.
Under the policy, the Court noted, a faculty monitor waits
outside a closed restroom stall for the student to produce a
sample. Id. The Court considered this method of collection
to be at most a negligible intrusion upon the student’s privacy
interest. Id. Given the student’s decreased expectation of
privacy and the minimally intrusive nature of the procedure,
the Court concluded that the invasion upon the student’s
privacy was not significant. Id. at 834. Next, the Court

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considered the special need proffered by the state. Id. It
concluded that, despite the absence of an “identifiable drug
abuse problem among ... [the students] subject to the testing,”
the need to prevent and deter the use of drugs among the
students who participate in extracurricular activities to be
sufficiently vital to suppress the requirements of
individualized suspicion. Id. at 836. Finally, the Court found
the drug testing program to be constitutional as it concluded
that the school’s special need outweighed the minimal
intrusion upon the student’s privacy interest. Id. at 836-38.
This Circuit has also had the opportunity to consider
whether a proffered special need was sufficiently vital and
substantial to permit drug testing of employees without
individualized suspicion. In Knox County, a school board
adopted a drug testing program that required the testing of
employees who applied for, promoted to, or transferred to,
safety sensitive positions, including teachers. 158 F.3d at
363. We concluded that the school board’s proffered need to
ensure the safety and security of the children under its care
was sufficiently vital to overcome the traditional requirements
of individualized suspicion. Id. at 374-79. After noting that
teachers and other employees who work in a school have a
diminished expectation of privacy because they work in a
heavily regulated industry, we held that the school board’s
special need in ensuring the safety and security of the children
under its care outweighed the intrusion upon the employees’
privacy interest. Id. at 384.
With these cases as a guide, we now evaluate the special
needs proffered by the State. In adopting the drug testing
program, the Michigan Civil Service Commission followed
the recommendations of the Employment Relations Board
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4W hen the UAW and the State were unable to agree on a drug testing
provision for the Collective Bargaining Agreement, a request was made
for Impasse Panel assistance pursuant to the civil service rules governing
collective bargaining. T he Impasse Panel was composed of three
members app ointed by the Civil Service Commission.
Impasse Panel.4 In recommending that the Civil Service
Commission adopt the drug testing program proposed by the
State, the Panel stated as follows:
Employees in “test-designated” positions who abuse
alcohol and drugs represent a significantly greater threat
to the health and safety of themselves and others than do
employees in nontest-designated positions. Employees
in “test-designated” positions may be required to react to
unusual or dangerous circumstances.
On balance, the Impasse Panel finds that ... drug use by
classified employees occupying “test-designated”
positions can impair judgment and behavior so
significantly that serious injury or death may result.
We cannot merely accept a state’s invocation of special
needs, but rather must engage in a context-specific inquiry,
examining closely the interests advanced by the state. The
largest group subject to testing consists of the parole or
probation officers and field service assistants. They are
subject to testing because they have law enforcement powers
and because they have regular access to parolees or
probationers. Probation and parole officers spend a
significant amount of time supervising clients away from the
office and away from supervision by their superiors.
Moreover, they are often required to take urinalysis drug test
samples from their clients in the field, over 20 percent of
whom have tested positive for unlawful drug use. Since they
are responsible for supervising probationers and paroles,
public safety would be put in jeopardy, the state argues, if

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they performed this duty while under the influence of drugs
or alcohol.
The second largest group consists of non-custodial
employees who work in the perimeter of a correctional
facility. The State contends that there is a special need to test
these employees because they have unsupervised access to
and direct contact with prisoners, 80 percent of whom have a
history of drug and alcohol abuse. Moreover, the introduction
of alcohol and drugs into correctional facilities, which
prisoners could obtain possession of, presents a severe threat
to security and to the safety of correctional employees and
prisoners, since the use of drugs by prisoners can lead to
disruptive behavior. In addition, employees who are involved
in substance abuse may be vulnerable to influence by others
who would bring drugs into the prison. And finally,
employees under the influence of drugs or alcohol suffer from
impaired judgment, which could adversely impact security
within the facility as well as the safety of other employees and
prisoners.
Another group of test-designated positions consists of
employees who provide health care and psychological care to
prisoners. As with the non-custodial employees, these
employees have unsupervised access to and direct contact
with prisoners, which raises the concern of the introduction of
drugs or alcohol into a correctional facility, which would pose
a severe threat to the security and safety of the employees and
prisoners therein. In addition, these employees have access
to medications, including controlled substances. Finally, if
these employees were under the influence of drugs or alcohol,
the health and safety of the patients these employees provided
health care to could be put in jeopardy.
The final group subject to testing consists of those
employees who provide health care to residents at state
hospitals for the mentally ill and developmentally disabled
and to residents of veterans’ homes. These employees have
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No. 03-1574
direct patient care responsibilities in state facilities and have
access to medications, including controlled substances. An
employee involved in substance abuse might succumb to the
temptation to take wrongful advantage of his or her access to
these controlled substances. As with the health care providers
who provide care to prisoners, there is a risk of harm to the
patient if a care giving employee is under the influence of
drugs or alcohol.
The Plaintiff argues that the State’s justification for the
drug testing program does not arise to a “special need,”
permitting the testing of employees without individualized
suspicion. It contends that, since there was no pre-existing
drug problem among the employees here, the drug testing
program may only constitute a “special need” if it fits under
the criteria established in Von Raab, since in that case the
Court upheld a drug testing program even though there was
no pre-existing drug problem among the employees subject to
testing. The Plaintiff notes that the Chandler Court identified
four factors that it felt were decisive in determining that the
customs agents in Von Raab could be tested even though
there was no existing drug problem among them: 1) drug
interdiction had become the Customs Bureau’s primary
enforcement mission; 2) the employees subject to testing had
access to vast sources of contraband; 3) the agents had been
targets of bribery; and 4) it was not feasible to subject the
custom agents to day-to-day scrutiny. After noting these
factors, the Plaintiff concludes that the State has failed to
show a special need as these factors do not apply at all or only
minimally apply to the test-designated categories.
The Plaintiff errs in arguing that, since there is no pervasive
pre-existing drug problem among the test-designated
employees, the drug testing program here may only be
justified if it accords with the factors that justified the drug
testing program in Von Raab. We cannot, as the Plaintiff
proposes, superimpose the four, context-specific factors
outlined in Von Raab concerning customs agents onto the

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5The Marks Court noted: “When a fragmented Court de cides a case
and no single rationale explaining the result enjoys the assent of five
justices, the holding of the Court may be viewed as the position taken by
those Mem bers who concurred in the jud gment on the narrowest gro und.”
facts here, which involve jobs that lay in an entirely different
context, to determine if the state has proffered a special need
that is sufficiently vital to suppress the requirements of
individualized suspicion. It is obvious that the specific
factors outlined in Von Raab would not all or even mostly
apply to another context since they were specifically distilled
from the situation facing customs agents. If those factors
were the test for determining whether a special need existed
when there is no evidence of a pre-existing problem, then it
would likely be difficult to find any special needs outside
those faced by the Customs Bureau. Instead, we must
consider the state civil service employees in this case who are
subject to testing in their own unique context. Knox, 158
F.3d at 374 (“Just as the Customs agents in Von Raab must be
considered in their own unique context, so too must the nature
of the work and positions of school teachers and
administrators be viewed as unique.”)
Although in Earls, like Von Raab, there was no evidence of
a particularized or pervasive drug problem among those
subject to testing, the Plaintiff nonetheless contends that Earls
does not support the constitutionality of the drug testing
program at issue here. The Plaintiff argues, on the basis of
Marks v. United States, 430 U.S. 188, 193 (1977)5, that
Justice Breyer’s concurrence provides the Court’s holding. In
his concurrence, Justice Breyer emphasizes some underlying
considerations to his conclusion that no Fourth Amendment
violation occurred in Earls. Earls, 536 U.S. at 838. He noted
that there is a documented national drug problem among high
school students, that students could opt out of the drug testing
program by not participating in extracurricular activities, and
that the testing program was not disciplinary in nature. The
14 International Union, et al. v.
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Plaintiff argues that Earls does not support the imposition of
the drug testing program because there is no evidence of a
general drug problem among civil service employees, the
employees may not opt out of the testing, and the testing may
result in discipline. The Plaintiff’s argument fails, however,
not only because it attempts to apply the context specific
factors announced in Earls to the unique context presented in
this case, but also because it mischaracterizes the Court’s
holding. Marks does not apply to Earls since Justice Breyer
concurred in the Court’s opinion, not merely in the judgment.
Justice Thomas’ opinion of the Court not only provides the
holding but also supports the proposition that a state may
have a special need to deter and prevent drug use among a
specific group despite the absence of a particularized or
pervasive drug problem among the group.
After considering the drug testing program in its own
unique context, we conclude that the State has offered
“special needs” that are sufficiently vital to overcome the
traditional requirements of individualized suspicion.
Although there is no evidence of a particularized or pervasive
drug abuse problem among the test-designated employees, it
is well established that the existence of a pronounced drug
problem is not an essential element to the finding of a special
need. Knox, 158 F.3d at 374; See also Earls, 536 U.S. at 835;
Von Raab, 489 U.S. at 674-75. Rather, the need to deter and
prevent a substantial harm provides the necessary immediacy
for the imposition of a drug testing program. Earls, 536 U.S.
at 836. As the Earls Court noted, it would make little sense
to require the test designated group to begin using drugs
before the state was allowed to institute a program designed
to deter its use. Id. Moreover, unlike Chandler, in the instant
case there exists the potential for substantial harm that the
state is entitled to attempt to prevent. It is certainly true that
employees who either have 1) law enforcement duties, 2)
direct and unsupervised contact with prisoners, 80 percent of
whom have a history of drug abuse, or 3) a responsibility to
deliver health care or psychological services to persons in

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state custody, would pose a significant potential threat to the
health and safety of themselves and others if they use drugs
or were under the influence of drugs while on duty.
Having concluded that the state has asserted sufficient
special needs, based on substantial, and not merely
hypothetical, public safety concerns, to justify the testing of
employees without individualized suspicion, we next consider
whether the State’s interest in the drug testing outweighs the
employees’ reasonable expectations of privacy. It is well
established that an individual who participates in a heavily
regulated industry or activity has a diminished expectation of
privacy. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S.
602, 627 (noting that railroad employees have a diminished
expectation of privacy because they participate in a
pervasively regulated industry); See Veronica, 515 U.S. at
657 (analogizing student-athletes to employees in closely
regulated industry, who “have reason to expect intrusions
upon normal rights and privileges, including privacy”); See
also, Earls, 536 U.S. at 832 (applying the same reasoning to
students who participate in extracurricular activities); Knox
County, 158 F.3d at 379 (finding that teachers’ legitimate
expectation of privacy is diminished by their participation in
a heavily regulated industry). The employees who are subject
to testing work either in law enforcement (parole and
probation officers), the medical profession (nurses,
occupational therapists, etc.), or inside a prison (teachers,
chaplains, dieticians, etc.). It is certainly true that parole and
probation officers, who are charged with supervision of
felony offenders, participate in a heavily regulated field.
Similarly, those employees who provide healthcare and other
services to prisoners and patients of state run facilities are
also subject to comprehensive regulations. Finally,
employees who work within prisons obviously work in a
highly regulated context. Therefore, since these employees
work in highly regulated fields, we conclude that they have a
diminished expectation of privacy.
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No. 03-1574
Next, we consider the character of the intrusion. The
degree of intrusion caused by collecting a urine sample
“depends upon the manner in which production of the urine
sample is monitored.” Earls, 536 U.S. at 832 (quoting
Veronica, 515 U.S. at 658). The procedure for collecting a
urine sample under the drug testing policy at issue here
requires that individual privacy be preserved unless there are
grounds to suspect tampering. The policy provides that while
the “specimen collector may be outside the bathroom or
restroom in the near proximity, the employee closes (and
locks, if he/she chooses) the door and has full privacy while
urinating.” This procedure is even less intrusive than the
monitoring sustained in Veronica as “negligible.” Veronica,
515 U.S. at 658 (holding the intrusion to be “negligible” even
though male students were required to produce samples at a
urinal along a wall while observed from behind).
The Plaintiff argues, however, that since the drug tests are
conducted on a random and continuous basis, rather than on
the occurrence of a triggering event such as a promotion, the
invasion of privacy is “qualitatively more intrusive” because
the employees are subjected to “unrelenting scrutiny” and
repeated “unsettling shows of authority.” The fact that the
drug tests are conducted on a random and continuous basis
does not change our calculus that the drug testing program is
not highly intrusive. First, since only fifteen percent of the
affected workforce is tested each year, an individual
employee can expect to be tested only once every seven years
on average. Moreover, to the extent the random and
continuous drug tests are more intrusive, this is offset by the
fact that such tests are also more efficacious than one time
tests at achieving their intended result: to deter and prevent
drug use to protect public safety and health. As the Court

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6Although the policy in Skinner provides that drug tests will be
conducted upon the occurrence of an accident, since no one can predict
with certainty the occurrence of an accident (unlike the timing of a
decision to apply for a promotio n), drug tests under the policy are
therefore conduc ted randomly.
noted in Skinner6, “[b]y ensuring that employees ... will be
tested [at a time] which no employee can predict with
certainty, the [drug testing policy] significantly increase[s] the
deterrent effect of the ... penalties associated with the
prohibited conduct.” 489 U.S. at 630.
Since we conclude that the State has offered sufficiently
vital special needs, based on substantial public safety
concerns, to overcome the traditional requirements of
individualized suspicion, and that these special needs
outweigh the employees diminished expectations of privacy,
we AFFIRM the district court’s holding that the program does
not violate the Fourth Amendment to the United States
Constitution.

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