We first address Plaintiffs' contention that the policy violates Article I, Section 20 of the North Carolina Constitution, which provides as follows:

General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.

Plaintiffs assert that "[o]n its face, the ... policy violates the prohibition against general warrants[,]" and that the policy violates Article I, Section 20's guarantee against unreasonable searches conducted by the government.

We are inclined to agree that the policy violates the prohibition against general warrants. See In re Stumbo, 582 S.E.2d 255, 266 (2003) (Martin, J., concurring) ("[P]ermitting government actors 'to search suspected places without evidence of the act committed' ... is tantamount to issuing a general warrant expressly prohibited by the North Carolina Constitution."). However, because we hold, for the reasons set forth below, that the Board's policy violates Article I, Section 20's guarantee against unreasonable searches, we do not reach the question of whether the policy violates the prohibition against general warrants.

The language of Article I, Section 20 "'differs markedly from the language of the Fourth Amendment to the Constitution of the United States.'" Nevertheless, Article I, Section 20 provides protection "similar" to the protection provided by the Fourth Amendment, and it is well-settled that both Article I, Section 20 and the Fourth Amendment prohibit the government from conducting "unreasonable" searches.... [W]e first determine whether the policy violates the Fourth Amendment .... If we determine that the policy does not violate the Fourth Amendment, we may then proceed to determine whether Article I, Section 20 provides "'basic rights in addition to those guaranteed by the [Fourth Amendment].'"

The reasonableness of a governmental search is generally determined "by balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests." But "'some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure.'" The Fourth Amendment, however, "'imposes no irreducible requirement of [individualized] suspicion.'" "'[I]n certain limited circumstances, the Government's need to discover ... latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting ... searches without any measure of individualized suspicion.'" Thus, a suspicionless search may be reasonable under the Fourth Amendment where "'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'"

Where the government alleges "special needs" in justification of a suspicionless search, "courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties." An important consideration in conducting the inquiry is whether there is "any indication of a concrete danger demanding departure from the Fourth Amendment's" usual requirement of individualized suspicion. The purpose of the inquiry is "to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context." Conducting the inquiry, the United States Supreme Court has upheld suspicionless searches in the following instances: (1) drug testing of students seeking to participate in competitive extracurricular activities; (2) searches of probationers; (3) drug testing of railroad employees involved in train accidents; (4) drug testing of United States customs officials seeking promotion to certain sensitive positions; and (5) searches of government employees' offices by the employer.

We begin our inquiry by attempting to examine the intrusiveness of the proposed testing procedure.... [Even] assuming the Board only tests employees' urine, we emphasize that the policy provides that "[a]ny employee who is found through drug or alcohol testing to have in his or her body a detectable amount of an illegal drug or of alcohol" will be suspended. Although a litany of other provisions in the policy bear directly on the intrusiveness of the testing procedure, we find it unnecessary to venture beyond this provision to state that the policy is remarkably intrusive.

We next consider whether Board employees have a reduced expectation of privacy by virtue of their employment in a public school system. Public employees may have reduced expectations of privacy if their employment carries with it safety concerns for which the employees are heavily regulated. By way of illustration, chemical weapons plant employees are heavily regulated for safety. There is no evidence in the record before us, however, that any of the Board's employees are regulated for safety. We question whether the Board could produce such evidence. The Board errantly relies on the premise that "Fourth Amendment rights ... are different in public schools than elsewhere; the 'reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children." The Board, however, fails to account for the explicit teaching of the Supreme Court that because "the nature of [the schools' power over schoolchildren] is custodial and tutelary, [the schools' power] permit[s] a degree of supervision and control [over schoolchildren] that could not be exercised over free adults." We are unable to conclude from this record that any of the Board's employees have a reduced expectation of privacy by virtue of their employment in a public school system.

Finally, the record in the case at bar is wholly devoid of any evidence that the Board's prior policy was in any way insufficient to satisfy the Board's stated needs. [The prior policy "required all job applicants to pass "an alcohol or drug test" as a condition of employment; required all employees to submit to "an alcohol or other drug test" upon a supervisor's "reasonable cause" to believe that the employee was using alcohol or illegal drugs, or abusing prescription drugs, in the workplace; and required "[a]ny employee placed on the approved list to drive school system vehicles" to submit to "random drug tests." Additionally, the policy mandated the suspension of any employee who, in a supervisor's opinion, was impaired by alcohol or drugs in the workplace." -EV]

The Board acknowledges that there is no evidence in the record of any drug problem among its employees. There is also a complete want of evidence that any student or employee has ever been harmed because of the presence of "a detectable amount of an illegal drug or of alcohol" in an employee's body. We agree that the Board need not wait for a student or employee to be harmed before implementing a preventative policy. However, the evidence completely fails to establish the existence of a "concrete" problem which the policy is designed to prevent. The need to promote an anti-drug message is "symbolic, not 'special,' as that term draws meaning from [the decisions of the United States Supreme Court]."

Considering and balancing all the circumstances, we conclude that the employees' acknowledged privacy interests outweigh the Board's interest in conducting random, suspicionless testing. Accordingly, we hold that the policy violates Article I, Section 20's guarantee against unreasonable searches.

We reject the Board's assertion that "ample guidance to uphold the Board's drug testing policy" can be found in Boesche v. Raleigh-Durham Airport Authority, 432 S.E.2d 137 (N.C. Ct. App. 1993). The plaintiff in Boesche was an airport maintenance mechanic whose job duties generally consisted of "performing preventative maintenance and repairs on airport terminal [HVAC] systems, but plaintiff also had security clearance to drive a motor vehicle 10 M.P.H. in a designated area on the apron of the flight area in order to get access to the systems located on the outside of the building." Without expressing that the plaintiff was suspected of any individualized wrongdoing, the defendants asked the plaintiff to submit to a urine drug test. The defendants told the plaintiff that the test was required "pursuant to a Federal Aviation Administration directive requiring that all employees who drive a motor vehicle in the airside of the airport must be tested." The plaintiff refused to submit to the test, was fired, and subsequently [sued] .....

In stating that the Boesche plaintiff was in a position "in which public safety or the safety of others was an overriding concern," this Court merely held that the defendants had made the showing ... that the plaintiff had "duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." This Court did not hold that any public employee who, "if drug impaired ..., could increase the risk of harm to others" was subject to urine drug testing. Rather, the Court held that the plaintiff, "if drug impaired while operating a motor vehicle on the apron of the flight area, could increase the risk of harm to others." ...

In the case before us, there is absolutely no evidence in the record which in any way equates the safety concerns inherent in the driving of a motor vehicle on the apron of an airport's flight area with the safety concerns inherent in the job duties of any Board employee. In fact, there is absolutely no evidence in the record that any Board employee whose body contains "a detectable amount of an illegal drug or of alcohol" increases the risk of harm to anyone.