Ferguson v. City of Charleston, 186 F.3d 469 (4th Cir. 1999)

Affirmed by published opinion. Judge WILKINS wrote the majority opinion, in which Judge NIEMEYER joined. Judge BLAKE wrote an opinion dissenting in part.

OPINION

WILKINS, Circuit Judge:

This litigation involves constitutional, statutory, and common-law challenges to a policy instituted by the Medical University of South Carolina (MUSC) in consultation with the Solicitor of the Ninth Judicial Circuit of South Carolina; the City of Charleston, South Carolina Police Department (CCPD); and various social services agencies. The policy was intended to encourage pregnant women whose urine tested positive for cocaine use to obtain substance abuse counseling. Appellants, ten women who were tested pursuant to the policy, brought this action claiming, inter alia, that the testing of their urine for evidence of cocaine use constituted a war-rantless search in violation of the Fourth Amendment; that the policy had a racially disparate impact in violation of regulations implementing Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000d to 2000d-6 (West 1994 & Supp. 1998); that the disclosure of medical information to law enforcement personnel vio

lated their constitutional right to privacy; and that MUSC personnel committed the state-law tort of abuse of process in administering the policy. The district court entered judgment for Appellees1 on each of these claims at various stages of the litigation. For the reasons set forth below, we affirm.

I.

In the fall of 1989, MUSC instituted a policy providing for the testing of the urine of pregnant women suspected of cocaine use and for the reporting, under certain circumstances, of test results to law enforcement officials. The impetus behind the policy came from Nurse Shirley Brown, a case manager in the obstetrics department at MUSC. Brown was concerned about a perceived rise in cocaine use among pregnant women and the consequences for the health of the users’ children. Brown spoke with the General Counsel for MUSC who in turn contacted the Ninth Circuit Solicitor (chief prosecuting attorney) concerning the development of a policy to address the problem. Eventually, a task force was formed that included Nurse Brown, the Solicitor, the. Chief of CCPD, and doctors from various departments involved in perinatal care at MUSC. During the course of task force meetings, the Solicitor informed the participants that because a viable fetus was a “person” under South Carolina law, a woman who ingested cocaine after the 24th week of pregnancy was guilty of the crime of distributing a controlled substance to a person under the age of eighteen, see S.C. Code Ann. § 44-53-440 (Law.Coop.Supp. 1997).2

Pursuant to the policy formulated by the task force and implemented in late October or early November 1989, urine drug screens to detect evidence of cocaine use were given to all MUSC maternity patients when certain indicia of cocaine use were present: (1) separation of the placenta from the uterine wall; (2) intrauterine fetal death; (3) no prenatal care; (4) late prenatal care (beginning after 24 weeks); (5) incomplete prenatal care (fewer than five visits); (6) preterm labor without an obvious cause; (7) a history of cocaine use; (8) unexplained birth defects; or (9) intrauterine growth retardation without an obvious cause. When a patient tested positive, the test result was reported to CCPD or a representative of the Solicitor’s Office and the patient was arrested for distributing cocaine to a minor. In early 1990, the policy was amended so that a patient who tested positive for cocaine use was given a choice between being arrested and receiving drug treatment. Positive test results of a patient who elected drug treatment were not forwarded to CCPD, and the patient was not arrested, unless she tested positive for cocaine use a second time or failed to comply with treatment obligations. A patient who was arrested could avoid prosecution by completing a drug treatment program. Upon successful com

pletion of such a program, the charges would be dismissed.3

Implementation of the policy by MUSC involved substantial record keeping and educational efforts. A maternity patient whose urine tested positive for cocaine use was shown an educational video concerning the harmful effects of cocaine use during pregnancy and was given letters from the Solicitor’s Office and the hospital staff relating to the policy. In addition, MUSC personnel advised the patient of the need to obtain substance abuse counseling and scheduled an initial appointment for such counseling. The patient then was given a document noting the date and time of the appointment. Additionally, MUSC maintained records on patients whose urine tested positive for cocaine use as a means of tracking them to ensure that they complied with the requirements of the policy.

Appellants, all of whom were subjected to the policy,4 brought this action asserting, as pertinent here, infringement of their constitutional right to privacy; violation of their Fourth Amendment right to be free of unreasonable searches and seizures; disparate impact discrimination on the basis of race; and commission of the state-law tort of abuse of process. After presentation of the evidence, the district court granted judgment as a matter of law to Appellees on the claims of commission of abuse of process and violation of the right to privacy to the extent Appellants sought damages. The jury returned a verdict in favor of Appellees on the Fourth Amendment claim. At a post-trial hearing, the court denied injunctive relief on Appellants’ claims of the denial of their constitutional right to privacy. Finally, the district court rendered findings of fact based on the evidence presented at trial

and ruled in favor of Appellees on the Title VI claim of disparate impact discrimination.

On appeal, Appellants challenge the submission of the Fourth Amendment claim to the jury and the sufficiency of the evidence supporting the verdict; the decision of the district court granting judgment to Appel-lees on the Title VI claim; and the orders of the court granting Appellees judgment as a matter of law on the claims for violation of the constitutional right to privacy and commission of the tort of abuse of process. We review these issues seriatim.

II.

At trial, Appellants contended that the urine drug screens constituted searches within the meaning of the Fourth Amendment. They further claimed that because they did not consent to the screens, the tests violated the Fourth Amendment.5 The district court ruled that the urine screens fell within the ambit of the Fourth Amendment and submitted the question of whether Appellants had consented to the searches to the jury, which found in favor of Appellees. Appellants now maintain that the district court erred in submitting the issue of consent to the jury and, alternatively, that the verdict is not supported by the evidence. We find it unnecessary to address these contentions because we affirm on the basis that the searches were reasonable as special needs searches.

The Fourth Amendment, made applicable to the states through the Fourteenth Amendment, provides in pertinent part that “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures! ] shall not be violated.” U.S. Const. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Simply put, this amendment guarantees that governmental intrusions into privacy by means of searches or seizures must be reasonable. Typically, this reasonableness requirement acts as a constraint on governmental authority to undertake a search or seizure in the absence of individualized suspicion. See Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). Generally, a search performed without a warrant is unreasonable per se unless it fits within a narrowly defined exception to the warrant requirement. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Lattimore, 87 F.3d 647, 650 (4th Cir.1996) (en banc). Nevertheless, “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Rather, there are situations in which “a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement.” Id. In such cases, “it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” Id. at 665-66, 109 S.Ct. 1384; see Chandler, 520 U.S. at 314, 117 S.Ct. 1295 (explaining that “[w]hen ... ‘special needs’ — concerns other than crime detection — are alleged in justification of a Fourth Amendment ihtrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties”). This balancing requires consideration of the governmental interest prompting the invasion; the effectiveness of the intrusion, i.e., the degree to which the intrusion reasonably is thought to advance the governmental interest; and the magnitude of the intrusion upon the individuals affected, from both a subjective and objective stand point. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); id. at 451-55, 110 S.Ct. 2481 (applying test); DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir.1998).

The parties evidently have agreed throughout this litigation that MUSC is a state hospital and that MUSC employees therefore are government actors.6 And, the district court found as a fact that MUSC personnel conducted the urine drug screens for medical purposes wholly independent of an intent to aid law enforcement efforts.7 Accordingly, the question presented is whether a balancing of MUSC’s interest in protecting the health of children whose mothers use cocaine during pregnancy, the effectiveness of the policy to identify and treat women who use cocaine during pregnancy, and the degree of intrusion experienced by women whose urine was tested for evidence of cocaine use results in a conclusion that the searches violated the Fourth Amendment.

A.

The first factor to be considered is the governmental need. The Fourth Amendment does not require a governmental need that is compelling in an absolute sense. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 661, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Instead, the interest must be “important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy.” Id.; see Chandler, 520 U.S. at 318, 117 S.Ct. 1295. The hazard giving rise to the alleged special need must be a concrete danger, not merely a hypothetical one. See Chandler, 520 U.S. at 318-19, 117 S.Ct. 1295; Vemonia, 515 U.S. at 662-63, 115 S.Ct. 2386 (explaining that a sharp rise in drug use by student athletes supported school officials’ assertion that random drug testing without individualized suspicion was warranted).

The policy at issue here was developed after medical personnel at MUSC noticed an alarming increase in the number of

pregnancies affected by cocaine use. Maternal cocaine use is associated with a number of pregnancy complications, including low birth weight, premature labor, birth defects, and neurobehavioral problems. Even a single use of cocaine during pregnancy may result in separation of the placenta from the uterine wall — a condition that may threaten the life of the mother and the fetus — or a stroke in the fetus. Moreover, costs related to caring for infants exposed to cocaine in útero are substantial, as evidenced by the testimony of an expert for Appellants who testified that he had estimated in the late 1980s that such expenses nationwide might exceed three billion dollars annually over the next ten years. In light of the documented health hazards of maternal cocaine use and the resulting drain on public resources, MUSC officials unquestionably possessed a substantial interest in taking steps to reduce cocaine use by pregnant women. Cf. Vernonia, 515 U.S. at 661-62, *115 S.Ct.* 2386 (concluding that interest in deterring drug use by school children was important in light of severe effects of drug use on adolescents).

B.

The second factor, the effectiveness of the search, focuses on “the degree to which [it] advances the public interest.” Sitz, 496 U.S. at 453, 110 S.Ct. 2481 (internal quotation marks omitted). In analyzing this factor, however, our review must leave “the decision as to which among reasonable alternative ... techniques should be employed to deal with a serious public danger” to “the governmental officials who have a unique understanding of, and a responsibility for, limited public resources.” Id. at 453-54, 110 S.Ct. 2481.

Here, there can be little doubt that testing the urine of maternity patients when certain indicia of possible cocaine use were present was an effective way to identify and treat maternal cocaine use while conserving the limited resources of a public hospital. Indeed, prenatal testing was the only effective means available to accomplish the primary policy goal of persuading women to stop using cocaine during their pregnancies in order to reduce health effects on children exposed to cocaine in útero.

Appellants argue, however, that the policy was ineffective because it was both un-derinclusive and overinclusive. The policy was underinclusive, Appellants claim, because it did not address use of other drugs — such as alcohol and nicotine — that may pose risks to a developing fetus. And, Appellants maintain that the policy was overinclusive because women were tested on the basis of having received inadequate prenatal care, a factor that Appellants contend is more accurately associated with poverty than with cocaine use.

Neither of these assertions, even if true, has any bearing on the effectiveness of the means adopted to achieve the goal of identifying and treating maternal cocaine use among MUSC patients. The first fails because it addresses only the wisdom of the policy itself. And, the second fails because the fact that the criteria for testing under the policy did not necessarily correlate with cocaine use in all patients did not render those criteria ineffective. Accordingly, we conclude that the method chosen by MUSC officials was an effective one.8

C.

Finally, the degree of intrusion, both objective and subjective, suffered by Appellants was minimal. The objective intrusion suffered by an individual is “measured by the duration of the seizure and the intensity of the investigation.” Id. at 452, 110 S.Ct. 2481. The subjective level of intrusion is measured by the extent to which the method chosen minimizes or enhances fear and surprise on the part of those searched or detained. See id.

Generally, the privacy interests implicated by the collection and testing of urine are not minimal. See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 626, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The context in which the searches at issue here occurred, however, indicates that they were only minimally intrusive. In the first place, the collection and testing of urine was conducted in the course of medical treatment to which Appellants had consented. The giving of a urine sample is a normal, routine, and expected part of a medical examination. See Yin v. California, 95 F.3d 864, 870 (9th Cir.1996) (observing that “[i]n today’s world, a medical examination that does not include either a blood test or urinalysis would be unusual”). Therefore, on an objective level, the duration and intensity of the search indicate that the Fourth Amendment intrusion was minimal at best. Cf. Dimeo v. Griffin, 943 F.2d 679, 682 (7th Cir.1991) (en banc) (indicating that a urine drug screen conducted in the course of a medical examination presents reduced privacy concerns). With respect to the subjective level of intrusion, we note that urine drug screens were conducted whenever one of the criteria for testing was met; a treating physician had no discretion to decline to order a urine test under the policy. See Turner v. Dammon, 848 F.2d 440, 446-47 (4th Cir.1988) (explaining that “[t]he cases upholding warrantless administrative searches clearly establish that these rules require certainty, regularity, and neutrality in the conduct of the searches”). This fact, combined with the routine nature of urine testing in medical examinations, indicates that the searches were minimally intrusive on a subjective level.

D.

In sum, the rising use of cocaine by pregnant women among MUSC’s patient base and the public health problems associated with maternal cocaine use created a special need beyond normal law enforcement goals; the method chosen to address that need—testing the urine of pregnant women when indicia of possible cocaine use were present—effectively advanced the public interest; and the intrusion suffered by Appellants was minimal. Therefore, a balancing of these factors clearly demonstrates that the searches conducted were reasonable and thus not violative of the Fourth Amendment.

III.

Title VI provides in pertinent part that “[n]o person in the United States shall, on the ground of race, ... be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C.A. § 2000d. Pursuant to Title VI, Appellants9 challenged MUSC’s policy of testing for and reporting cocaine use by pregnant women, maintaining that it disparately impacted African-American women.10

In order to succeed on a Title VI disparate impact claim, a plaintiff first must establish a prima facie case of discrimination by showing “that a facially neutral practice has a disproportionate adverse effect on a group protected by Title VI.” Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407 (11th Cir.1993). The burden then “shifts to the defendant to demonstrate the existence of a substantial legitimate justification for the allegedly discriminatory practice.” New York Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir.1995) (per curiam) (internal quotation marks omitted). If the defendant succeeds in doing so, the plaintiff nevertheless will prevail by showing “that other less discriminatory means would serve the same objective.” Id.

Here, Appellants maintained that the policy disproportionately affected African-Americans in several ways. Specifically, AppeUants argued that African-Americans were disproportionately affected by application of the policy (1) only at MUSC; (2) only to certain departments at MUSC; and (3) only to cocaine. Appellants further asserted that the application of the factors utilized to determine which patients would be tested for cocaine use disproportionately affected African-Americans. The district court concluded that Appellants had failed to estabhsh a prima facie case of discrimination with respect to any of the challenged practices. Additionally, the district court determined that even if a prima facie ease of discrimination had been established, MUSC11 had offered a legitimate justification for the policy— that it identified pregnant women who abused cocaine so that they could be referred for treatment. Further, the court held that Appellants had failed to carry their burden of establishing the existence of an equally effective practice that would have a less disparate impact because the alternative practices offered by Appellants would have been prohibitively expensive.

Appellants now contend that the district court erred in concluding that they failed to establish a prima facie case of discrimination and to provide a viable, less discriminatory alternative. With respect to the establishment of a prima facie case, Appellants assert that the policy resulted in a disproportionate impact on African-Americans in two respects.

First, Appellants point to the fact that the policy was implemented only at MUSC and maintain that failure to apply the policy at all area hospitals resulted in a disproportionate effect on African-Americans. However, we need not consider whether the’ failure to apply the policy to all area hospitals would suffice to establish a prima facie case of discrimination. Because there is no evidence in the record to support a conclusion that MUSC could

have forced other hospitals to adopt the policy, requiring MUSC to implement the policy at other area hospitals could not constitute a viable, less discriminatory, alternative. Appellants consequently cannot prevail on this claim.

Second, Appellants maintain that MUSC’s decision to target cocaine rather than all substances that are potentially harmful to fetuses — including nicotine and alcohol — disproportionately affected African-American women. In support of this contention, Appellants note that only 68 percent of maternity patients who tested positive for any drug were African-American,, while 90 percent of.maternity patients who tested positive for cocaine were African-American.12 We agree that this disparity — 5.44 standard deviations— is sufficient to establish a prima facie ease of disparate impact discrimination. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 311 n. 17, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977) (observing that a variance “of more than two or three standard deviations” permits an inference of discrimination); Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561, 568-69 & n. 13 (4th Cir.1985) (noting that variance of five to eight standard deviations permits an inference of discrimination).13

MUSC justified its decision to target cocaine on the basis of a perceived rise in the number of pregnant women abusing cocaine and the resistance of these women to obtaining treatment for their addictions. Appellants do not dispute that these are legitimate, nondiscriminatory reasons for MUSC’s actions, but rather assert that at least two alternative practices exist which, if adopted, would have lessened the discriminatory impact of the policy: (1) reporting use of all illegal drugs and alcohol, and (2) testing all maternity patients.14 The district court found that both of these practices would have been prohibitively expensive. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 661, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) (explaining that determination whether alternative measures exist that would serve the same purpose as a challenged practice with a less disparate impact should take into account whether the proposed alternatives impose undue costs or other bur

dens). With respect to the first alternative, Appellants point out that the urine drug screens conducted by MUSC indicated the past use of any drug, not just cocaine. Appellants do not challenge, however, the factual finding of the district court that application of the policy — including its tracking and reporting requirements — to all drugs would have been prohibitively expensive. Further, they do not assert that the district court committed clear error in finding that testing the urine of all maternity patients at MUSC would have been prohibitively expensive. Accordingly, we cannot conclude that Appellants have demonstrated the existence of a means of accomplishing the goals of the policy that would have been equally effective while imposing a less disparate impact on African-Americans. We therefore conclude that the district court correctly granted judgment to Appellees on the Title VI claim.

IV.

Next, Appellants maintain that the district court erred in rejecting their claim that the disclosure of information contained in their medical records to a representative of the Solicitor’s Office and officers of the CCPD violated their constitutional right to privacy.15 We conclude that any privacy interest Appellants possessed in their medical records was outweighed by a compelling governmental interest, particularly in light of the nonpublic nature of the disclosure.

The Constitution does not include a general right to privacy. See Condon v. Reno, 155 F.3d 453, 464 (4th Cir.1998). Nevertheless, the Supreme Court has recognized that individuals possess a constitutional “interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). This interest, however, is limited to disclosures of information that touch on rights that “are fundamental or implicit in the concept of ordered liberty.” Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (internal quotation marks omitted); see Bloch v. Ribar, 156 F.3d 673, 684 (6th Cir.1998); United States v. McFillin, 713 F.2d 57, 60 (4th Cir.1981) (holding that a constitutional right to privacy is implicated when the information disclosed “affects an essential component of a person’s dignity”); cf. Condon, 155 F.3d at 464 (noting that the Supreme Court has recognized a constitutional right to privacy only with respect to certain limited areas, such as “matters of reproduction, contraception, abortion, and marriage” (citations omitted)). Moreover, even in those instances in which a constitutional right of privacy attaches to personal information, disclosure of that information will not violate the Constitution if “the government’s interest in disseminating the information” outweighs “the individual’s interest in keeping the information private.” Bloch, 156 F.3d at 684.

Although the Supreme Court addressed a claim to a right of privacy in medical records in Whalen, it declined to decide whether such information merits constitutional privacy protection. See Whalen, 429 U.S. at 605-06, 97 S.Ct. 869. And, the circuit courts of appeals are divided on this issue. Compare Doe v. Southeastern Pa. Transp. Auth., 72 F.3d 1133, 1137 (3d Cir.1995) (recognizing that an individual possesses a constitutional privacy right in medical records), with Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir.1995) (holding that no constitutionally protected privacy

interest exists in medical records). We need not decide the question, however, because we conclude that even if Appellants possess a constitutional interest in the nondisclosure of their medical records, that interest is outweighed by the interest of the government in disclosure.

It is well settled that a state has a compelling interest in the identification of law breakers and in deterring future misconduct. See Bloch, 156 F.3d at 686; Sanitation & Recycling Indus., Inc. v. New York, 107 F.3d 985, 998 (2d Cir.1997). Here, any medical records disclosed were disseminated only to a limited number of law enforcement personnel — the prosecuting attorney and arresting officers — in the course of their official duties. There is no indication that Appellants’ medical records were disclosed to others within the Solicitor’s Office, the CCPD, or the public in general. See American Fed’n of Gov’t Employees, AFL-CIO v. Department of Housing & Urban Dev., 118 F.3d 786, 793 (D.C.Cir.1997) (holding “that the individual interest in protecting ... privacy ... is significantly less important where the information is collected by the government but not disseminated publicly”); Watson v. Lowcountry Red Cross, 974 F.2d 482, 487-88 (4th Cir.1992) (indicating that disclosure of information to a district court did not abridge constitutional privacy interest because the disclosure was not public). Accordingly, we hold that no privacy right of Appellants was violated.

V.

Finally, Appellants maintain that the district court erred in granting Appellees judgment as a matter of law on the claim that the manner in which the policy was applied constituted the state-law tort of abuse of process. More specifically, Appellants assert that MUSC personnel improperly threatened Appellants with arrest in order to coerce them into obtaining substance abuse counseling.

Under South Carolina law, “[t]he essential elements of abuse of process are: (1) an ulterior purpose; and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding.” Johnson v. Painter, 279 S.C. 390, 307 S.E.2d 860, 860 (1983). “The improper purpose usually takes the form of coercion to obtain a collateral advantage[ ] not properly involved in the proceeding itself.” Hainer v. American Med. Int'l Inc., 328 S.C. 128, 492 S.E.2d 103, 107 (1997). In order to satisfy the requirement of an improper act, the plaintiff must show that the defendant made “[s]ome definite act or threat not authorized by the process or aimed at an object not legitimate in the use of the process .... There is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” Id.

Here, the district court determined that MUSC personnel did not have an improper ulterior purpose in advising women who tested positive for cocaine use that they would be subject to arrest if they did not obtain substance abuse counseling. Since Appellees did not seek to obtain any collateral advantage for themselves, the court reasoned, there could be no abuse of process. We need not decide whether Appel-lees had an ulterior purpose, however, because we conclude that they performed no act not authorized by the process. At most, Appellees accurately informed Appellants that ingestion of cocaine after the 24th week of pregnancy constituted a criminal offense for which they could be prosecuted. That maternity patients who tested positive for cocaine use could avoid criminal prosecution by obtaining treatment does not render the implementation of the policy abusive. Cf. Johnson, 307 S.E.2d at 861 (holding that offer to abandon criminal prosecution in exchange for restitution did not amount to abuse of process).

VI.

In sum, we reject Appellants’ challenges to the judgments in favor of Appellees. Accordingly, we affirm.

BLAKE, District Judge,

dissenting in part:

The majority has concluded that the warrantless testing of urine for evidence of cocaine use which resulted in the arrest of nine of the 10 plaintiffs in this case constituted a reasonable search under the “special needs” exception to the warrant requirement of the Fourth Amendment. On this point, respectfully, I dissent. Furthermore, I disagree with the majority’s conclusion that as to the Title VI claim the appellants failed to demonstrate the existence of a less discriminatory alternative policy. Accordingly, I would reverse the district court’s decisions concerning the appellants’ Fourth Amendment and Title VI claims and remand for consideration of appropriate relief.

I.

Some additional factual background is necessary to explain my position on the Fourth Amendment issue. Preliminarily, assuming that concern for the health of fetuses being carried by pregnant women using crack cocaine was a motivating force in the development of the MUSC policy, it nevertheless is clear from the record that an initial and continuing focus of the policy was on the arrest and prosecution of drug-abusing mothers, either before or after they had given birth to the children presumably affected by the cocaine use.1 The prosecutorial purpose of the policy and the substantial involvement of law enforcement officials from the very beginning of its implementation are both illustrated by a letter sent by MUSC General Counsel Joseph C. Good to Charles Condon, Charleston City Solicitor, on August *23,* 1989. In the letter, Mr. Good wrote:

(J.A. Vol. Ill at 2052.) In addition, operational guidelines issued by Captain Roberts of the Charleston police force on October 12, 1989, with copies to Solicitor Condon and to MUSC nurse Shirley Brown (one of the instigators of the MUSC program), refer to the positive drug tests as “probable cause” for arrest of the mother, on charges of possession only if the pregnancy is 27 weeks or less, and on charges of both possession and distribution to persons under 18 if the pregnancy is 28 weeks or more. (J.A. Vol. Ill at 1412-1414.)2 Further, a letter from Mr. Good to a Senior Assistant Attorney General on December 19, 1989, explaining the MUSC program, states that it was developed by MUSC “[a]t the suggestion of law enforcement and the solicitor’s office. ...” (J.A. Vol. Ill at 1457.) These are merely a few examples of the evidence in the record that supports a finding of both prosecutorial intent on the part of MUSC and substantial involvement of law enforcement officials in developing the program.

Following is a short summary of the circumstances under which the plaintiffs in this case were tested and arrested:

Sandra Powell, African-American, received prenatal care at MUSC from the end of her first trimester. (J.A. Vol. I at 322.) In October 1989, she delivered her child at MUSC and tested positive for cocaine. (J.A. Vol. Ill at 1842-44, 1853.) She was arrested at the hospital the following day. (J.A. Vol. Ill at 1844, 1852.)

Lori Griffin, African-American, received prenatal care at MUSC beginning in July 1989.(J.A. Vol. Ill at 1563.) She was admitted to the hospital on October 7, 1989, with contractions. (J.A. Vol. Ill at 1560.) She tested positive for cocaine. (J.A. Vol. Ill at 1559.) She was arrested and taken to the county jail. (J.A. Vol. Ill at 1560, 1563.) She was returned to MUSC from jail on October 25, 1989, to deliver her child.

Ellen Knight, African-American, received prenatal care at MUSC prior to the fall of 1989. (J.A. Vol. I at 293.) She arrived at the hospital on November 6, 1989, in labor. (J.A. Vol. Ill at 1698.) Although her cocaine test was negative, her child tested positive at birth. (J.A. Vol. Ill at 1705, 1707.) She was arrested at the hospital on November 8,1989.

Laverne Singleton, African-American, delivered her child on November 9, 1989, in the ambulance on the way to MUSC. (J.A. at I 225; Vol. Ill at 1859,1865.) She tested positive for cocaine at the time of admission. (J.A. Vol. Ill at 1859-60.) She was arrested at the hospital the next morning. (Id.)

Paula Hale, African-American, first arrived at MUSC in December 1990 in labor. (J.A. Vol. Ill at 1581-83.) She tested positive for cocaine at delivery and was referred to substance abuse counseling. (Id.) She was arrested in March 1991 after failing to complete the drug treatment program. (J.A. Vol. Ill at 1585-86.)

Pamela Pear, African-American, arrived at MUSC in July 1990 with pre-term labor symptoms. (J.A. Vol. Ill at 1817.) She tested positive for cocaine during that visit. (Id.) She was referred to substance abuse counseling. (J.A. Vol. Ill at 1736.) In August 1990, she was again admitted to MUSC for pre-term labor and tested positive for cocaine. (J.A. Vol. Ill at 1757.) She was arrested at the hospital and was released on bond the same day. She delivered her child at MUSC in September 1990. (J.A. Vol. Ill at 1765.)

Theresa Joseph, who was multi-racial,3 was first seen at MUSC on June 5, 1991, for a non-pregnancy related matter. (J.A. Vol. Ill at 1599.) She tested positive for cocaine at that time and was referred to the obstetrical clinic. (J.A. Vol. Ill at 1601-02.) She was admitted to the hospital again, for the same non-pregnancy complaint, on June 13, 1991. She again tested positive for cocaine and was referred to substance abuse counseling. (J.A. Vol. Ill at 1612, 1626.) She failed to complete the substance abuse program in July 1991. (J.A. Vol. Ill at 1656, 1682.) She was seen again in September 1991 and once more tested positive for cocaine. (J.A. Vol. I at 515; Vol. Ill at 1628-29.) Finally, she arrived at MUSC in October 1991 in labor and tested positive for cocaine. (J.A. Vol. Ill at 1632, 1634.) Her child was born on October 18, 1991, and Ms. Joseph was arrested at -the hospital. (Id.)

Crystal Ferguson, African-American, tested positive for cocaine during a prenatal visit to MUSC in June 1991. (J.A. Vol. Ill at 1530.) She agreed to attend substance abuse counseling. (J.A. Vol. Ill at 1537.) On August 4, 1991, she delivered her child at MUSC. She tested positive for cocaine at that time. (J.A. Vol. Ill at 1533.) She was arrested on August 7, 1991, for failing to comply with the drug treatment program. (J.A. Vol. Ill at 1541.)

Patricia Williams, African-American, received prenatal care at MUSC beginning

in January 1992. (J.A. Vol. Ill at 1910.) She tested positive for cocaine at the time of her first visit and was referred to substance abuse counseling. (J.A. Vol. Ill at 1903, 1939-40.) She did not complete the counseling program and returned for additional prenatal care three times, testing positive for cocaine each time. (J.A. Vol. Ill at 1901-02, 1907.) In March 1992, she arrived at the hospital in labor. (J.A. Vol. Ill at 1910-11.) She again tested positive for cocaine. (Id.) Her baby was born on March 10, 1992, and on March 12, 1992, she was arrested at the hospital. (Id.)

Darlene Nicholson, Caucasian, received regular prenatal care at MUSC. (J.A. Vol. I at 447-48, 450; Vol. Ill at 1717, 1724.) At her December 17, 1993 prenatal visit she tested positive for cocaine. (J.A. Vol. I at 452-53.) At that time, she was told that she must voluntarily admit herself to the MUSC psychiatric unit for substance abuse treatment or she would be arrested. (Id.) She entered the psychiatric unit and remained there until she was released after 30 days. (J.A. Vol. Ill at 1717.) She delivered her child at MUSC on February 21,1994. (J.A. Vol. I at 458.)

In none of these cases was a warrant obtained before the urine testing was done or before the results were turned over to the police and the plaintiffs were arrested. Furthermore, the consent forms signed by the plaintiffs did not advise them that their drug test results would be disclosed to the police. The majority excuses the lack of a warrant, or indeed any determination of probable cause, by relying on the “special needs” exception to the ordinary Fourth Amendment requirement that a warrant be obtained.

II.

National Treasury Employees Union v. Von Raab, 489 U.S. 656; 665-66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (emphasis added). Similarly, the Court has instructed that

Chandler v. Miller, 520 U.S. 305, 314, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997) (emphasis added). Several aspects of the “special needs” exception require careful analysis in the context of this case.

First, as the emphasized portions of the above quotations make clear, the “special needs” exception does not apply where the governmental intrusion is intended to be used for law enforcement purposes. In Von Raab, the issue was whether “it violates the Fourth Amendment for the United States Customs Service to require a urinalysis test from employees who seek transfer or promotion to certain positions.” 489 U.S. at 659, 109 S.Ct. 1384. The Supreme Court in that case held that the Fourth Amendment permitted the suspicionless testing of employees who applied for positions directly involving the use of firearms or the interdiction of illegal drugs. Id. at 679, 109 S.Ct. 1384. In reaching this conclusion, the Court applied a “special needs” analysis, balancing the individuals’ privacy interests against the non-law enforcement governmental interests served by the urinalysis policy. Significantly, in deciding to apply the “special needs” balancing test to the facts before it, the Court emphasized that “[i]t is clear that the Customs Service’s drug-testing program is not designed to serve the ordinary needs of law enforcement. Test results may not be used in a crimi

nal prosecution of the employee without the employee’s consent.” Id. at 666, 109 S.Ct. 1384 (emphasis added). In fact, in none of the cases relied on by the majority, other than the sobriety checkpoint and probation supervision cases which will be addressed below, were the results of the drug tests or other searches intended for use in a criminal prosecution. See Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 651, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (authorizing only certain school officials to have access to test results); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 621 & n. 5, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (“While [the provision permitting drug testing of railroad personnel] might be read broadly to authorize the release of biological samples to law enforcement authorities, the record does not disclose that it was intended to be, or actually has been, so used.”); Yin v. State of California, 95 F.3d 864, 869, 873 (9th Cir.1996) (state employee required to submit to medical examination solely to determine her ability to perform normal work duties); Dimeo v. Griffin, 943 F.2d 679, 685 (7th Cir.1990) (en banc) (jockeys and other participants in horse racing required to undergo random drug tests as condition of occupational licen-sure). In sharp contrast, nine out of ten of the plaintiffs in this case were arrested based on the test results, and one avoided arrest only by committing herself to a psychiatric unit. Under these circumstances, I believe the “special needs” exception does not apply.

The majority cites Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), and Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), for the proposition that the defendants’ intention to use the results of the drug tests as probable cause to arrest the plaintiffs in this case does not preclude application of the special needs balancing test.. In Sitz, however, the Supreme Court was careful to explain that the special needs exception applied only to the suspicionless “seizure,” that is, the initial stop of each motorist and the associated preliminary questioning and observation, 496 U.S. at 450-51, 110 S.Ct. 2481, which the Court characterized as only a “slight” intrusion. Id. at 451, 110 S.Ct. 2481. The Court specifically noted that the “[detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.” Id. at 451, 110 S.Ct. 2481 (citing United States v. Martinez-Fuerte, 428 U.S. 543, 559, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)). The Sitz balancing test, which justifies the relatively slight intrusion of a checkpoint seizure, does not serve also to justify searches of the motorists’ persons or effects without consent or probable cause. See United States v. Ortiz, 422 U.S. 891, 896-97, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975). Griffin also is readily distinguishable. In that case, the Supreme Court upheld the validity of a warrantless search conducted by a state probation officer at the home of a criminal defendant on probation under a regulation which permitted such searches as long as the probation officer had “reasonable grounds” to. believe the probationer possessed contraband forbidden under the conditions of his probation. The Court noted that probation was a form of criminal sanction imposed after a finding of guilt, 483 U.S. at 874, 107 S.Ct. 3164, and supervision of probationers was a “ ‘special need’ of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large.” Id. at 875, 107 S.Ct. 3164.

Accordingly, I believe the majority reads Sitz and Griffin too broadly in suggesting that the special needs exception can justify a suspicionless search of a member of the public intended to produce evidence for use in a criminal arrest.

In this case, .the MUSC policy was intended from its inception- to result in the arrest and possible prosecution of pregnant women who were patients at the state hospital. In all the other special

needs cases cited by the majority, arrest was at most an incidental possibility and not a direct result of the warrantless Fourth Amendment intrusion sought to be justified. It is simply inconsistent with the record in this case to identify the drug testing imposed by MUSC as not serving normal law enforcement needs. I would find that the avowed and actual purpose of arresting patients who tested positive for cocaine, as well as the extensive involvement of law enforcement officials in designing and implementing the policy, preclude application of the special needs analysis in this case.

Even if I assume, however, that a special needs balancing test should be applied, and further assume that the governmental interest identified by the majority — i.e., the adverse effect of maternal cocaine use on the health of children exposed to cocaine in útero — is substantial, I believe that the policy fails the test of “effectiveness,” i.e., “[t]he degree to which the search advances the public interest.” See Sitz, 496 U.S. at 453, 110 S.Ct. 2481. It is undisputed that seven of the plaintiffs were arrested after giving birth (indeed, several were taken into custody at the hospital wearing only their hospital gowns), rather than during the prenatal period.4 By that time, any adverse effect of maternal cocaine use on the developing fetus had already occurred, and the arrest could only have had a punitive rather than a preventive purpose.

Nor is it correct to say that the degree of intrusion on the mother’s privacy was “minimal” simply because the test occurred in the context of a hospital examination. Unlike the policy in Von Raab, under the MUSC policy the test results are reported not simply to a licensed physician, but to law enforcement officials with no medical reason for receiving the information. Cf. Von Raab, 489 U.S. at 672 n. 2, 109 S.Ct. 1384 (noting as one of the procedures that minimized the intrusiveness of the drug-screening program that “an employee need not disclose personal medical information to the Government unless his test result is positive, and even then any such information is reported to a licensed physician”).

For all the above reasons, I agree with the trial court that the drug testing policy applied to the plaintiffs in this case violated the Fourth Amendment, in the absence of valid consent.

The district court also properly found that the various consent forms signed by the plaintiffs, which did not advise them that the drug test results would be disclosed to the police, did not alone establish valid consent. Accordingly, the court submitted this case to the jury on the issue of consent, and the jury returned a verdict in favor of the defendants. The plaintiffs moved for judgment under Fed.R.Civ. P.50(b), and the court denied the motion.

I disagree that the evidence presented at trial was sufficient to sustain the jury’s verdict. When considering a Rule 50(b) motion for judgment as a matter of law, the district court must view the evidence in the light most favorable to the non-moving party and then determine whether a reasonable jury could draw only one conclusion from the evidence. See Townley v. Norfolk & Western Ry. Co., 887 F.2d 498, 499 (4th Cir.1989). We review the district court’s ruling on a Rule 50(b) motion by applying the same standards de novo. Id. In addition to the consent forms, the defendants presented other evidence, such as letters that either accompanied the forms or were distributed after a positive test result, and a public service announcement issued by the Solicitor’s Office in 1990. The public service announcement indicated that pregnant women who tested positive for drug use could be subject to prosecution; however, it was seen by only two of the plaintiffs. (J.A. Vol. I

at 374, 518-19.) The plaintiffs’ presumed familiarity with this information, even when combined with a general knowledge that use of cocaine is illegal, is not sufficient to establish the plaintiffs’ voluntary and knowing consent to the possible use against them in a criminal case of drug test results taken in the course of their pregnancy and labor. Cf. Von Raab, 489 U.S. at 666, 109 S.Ct. 1384 (positive test results “may not be used in a criminal prosecution without the employee’s consent”). I also question whether consent can be voluntary, in a constitutional sense, when given by an indigent, uninsured woman in labor, who is dependent on medical care provided by the state’s public hospital. If the special needs exception had been held not to apply, a. more thorough analysis of this issue would have been necessary.

III.

I agree with the majority’s analysis of the Title VI issue, except with regard to the availability of an equally effective alternative policy with a less discriminatory impact.5 The plaintiffs point out, correctly, that the urine tests being performed under the MUSC policy indicate a patient’s past use, not just of cocaine, but of other illegal drugs as well. (J.A. Vol. II at 1336-42.) Consequently, applying the policy to the past use of all illegal drugs, not just cocaine, as the plaintiffs suggested, would not have increased the cost of the testing. The district court’s finding that testing for all illegal drugs “would be prohibitively expensive,” therefore, is not supported by the record. In affirming the decision below, the majority states that the plaintiffs have not challenged the district court’s factual finding “that application of the policy — including its tracking and reporting requirements — to all drugs would have been prohibitively expensive.” The district court, however, made no such finding. In considering the alternative of focusing on all illegal drugs, not just cocaine, the court relied only on the cost of testing, not tracking or reporting, to reject that alternative.6 (J.A. Vol. TV at 2746). Since the plaintiffs have shown that their proposed alternative of applying the testing policy to past use of any illegal drug would not have resulted in any additional cost, the district court’s fact-finding on the issue of the cost of testing is clearly erroneous, and the plaintiffs have carried their burden of demonstrating the availability of an equally effective alternative with a less discriminatory impact.7 Accordingly, I would reverse the judgment in favor of the defendants on the Title VI claim and remand for consideration of injunctive relief.

IV.

In summary, I would reverse the district court on the Fourth Amendment and Title VI claims, and remand for consideration of appropriate relief. On these two issues, respectfully, I dissent.