CHALK TALKS - Drinking and Driving School Buses: Zero Alcohol Tolerance for Public School Bus Drivers

By Vinsel, Nancy | Journal of Law and Education, January 2012 | Go to article overview

CHALK TALKS - Drinking and Driving School Buses: Zero Alcohol Tolerance for Public School Bus Drivers


Vinsel, Nancy, Journal of Law and Education


I. INTRODUCTION

One can find horrific headlines about public school bus drivers allegedly intoxicated on the job: an Illinois bus driver, finishing her afternoon route, was arrested for DUI after she allegedly drank vodka and orange juice during her lunch break;' a Pennsylvania school bus driver with a student on board was arrested for DUI after other drivers witnessed the bus repeatedly weaving across the yellow line and called 91 1 ;2 a New York bus driver was arrested for DUI after students fled the bus through the emergency exit because the driver was allegedly driving erratically.3 There should be little surprise that a minor Internet buzz followed a recent newspaper report that a New Mexico school board established a zero alcohol tolerance policy for its school bus drivers.4 The buzz was not caused by the New Mexico policy, but by its comparison with current federal standards, which prohibit school bus drivers from reporting to work with a blood alcohol content of 0.04% or higher.5 As one school transportation blogger queried, why would federal regulations permit school bus drivers to have any amount of alcohol before being disqualified to drive?6

Zero tolerance policies for alcohol consumption by public school bus drivers seem to be common sense policies. But is the difference between or 0.00% alcohol content and 0.04% de minimis! This Note will provide a general overview of federal safety regulations regarding alcohol consumption that apply to public school bus drivers. It will then briefly review the legal basis for employment testing. Next, this Note will examine how blood alcohol content standards that apply to public school bus drivers were developed, review current federal regulations, then analyze how states and school boards have responded.

II. EMPLOYMENT TESTING FOR ALCOHOL

Alcohol testing by school officials in conjunction with public school employment is considered a search within the meaning of the Fourth Amendment and must, therefore, be reasonable.7 In determining the reasonableness of a search, courts balance an employee's right to privacy against a compelling government interest."

The Supreme Court has held that alcohol and drug testing of transportation employees, which includes public school bus drivers, is constitutional.9 Transportation employees have a reduced expectation of privacy because the transportation industry is heavily regulated and because of the great risk to public safety from commercial drivers who are impaired by alcohol or drugs.1" Further, the Supreme Court explained that breath tests measuring alcohol concentration pose little threat to the privacy of transportation employees because the tests are minimally invasive, conducted with a "minimum of inconvenience or embarrassment," and reveal no other facts about the employee than the presence of alcohol." The need to ensure that school bus drivers are not impaired while performing job functions outweighs the drivers' privacy interests.12 Thus, alcohol testing of school bus drivers is constitutionally permissible.13

III. HISTORY OF FEDERAL BLOOD ALCOHOL CONTENT REGULATIONS

Current federal law sets minimum safety standards for commercial motor vehicle operators.14 These regulations include workplace anti-drug and alcohol policies, which protect public safety by deterring alcohol misuse and illegal drug use.15 They incorporate alcohol and drug testing, education, and sanctions.16

Early federal commercial driver safety regulations did not apply to intrastate school bus drivers who drove students to and from school or school-related activities.17 However, subsequent legislation expanded the scope of the alcohol and drug sections of the commercial driver safety regulations, which now apply to all drivers required to have a commercial driver's license ("CDL").18 Because school bus drivers must possess a CDL, the alcohol and drug regulations apply to all school bus drivers who work for school boards and for private contractors, both full time and part time. …

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