BETTER OPTIONS EXIST IN DRUG-TESTING ISSUE

The recent editorial on random drug testing of teachers conveyed
frustration with government operations in contrast to the efficacy of
the private sector.

Herein lies the rub.

The governor, the Board of Education and the Department of Education
are all state actors. Private companies and private associations may
freely conduct warrantless searches of their employees or members
without any showing of cause or due process. However, the U.S. and
Hawai'i Constitutions prohibit the government - including the DOE -
from drug-testing its employees without reasonable suspicion. By
proceeding with random drug testing, the governor and the DOE will be
violating teachers' constitutional rights.

The only party in this whole drama that is not a "state actor" is the
Hawaii State Teachers Association. The HSTA has sufficient resources
to randomly drug-test 100 members a year, (complying with the
governor's request). As long as a "state actor" is not paying for,
conducting, selecting, or mandating the random drug testing, we can
get back to more legitimate concerns and solutions.

The only time the government can test an employee without any cause
is when the employee "performs a safety-sensitive function." As a
federal appeals court recently ruled: "Jobs are considered
safety-sensitive if they involve work that may pose a great danger to
the public, such as: the operation of railway cars, the armed
interdiction of illegal drugs, work in a nuclear power facility, work
involving matters of national security, work involving the operation
of natural gas and liquefied natural gas pipelines, work in the
aviation industry and work involving the operation of dangerous
instrumentalities, such as trucks that weigh more than 26,000 pounds,
that are used to transport hazardous materials, or that carry more
than 14 passengers at a time." This court holding reflects the
protections of the U.S. Constitution; the state Constitution has
language that is even more protective of privacy.

Although teachers perform one of the most important functions in
society, this does not make an elementary school teacher
"safety-sensitive" in the same way as a nuclear power plant operator.
If we continue to insist that the DOE conduct the random drug testing
of employees, instead of the unions, the costs of defending the state
against an ACLU lawsuit will cost 10 times the amount of all the drug
testing combined.

If the governor really cared about improving public schools, wouldn't
she have swept in at the eleventh hour and insisted that the DOE be
allowed to evaluate teacher performance more often than "once in
every five years," as the bargaining agreement she signed currently
limits? Ironically, a random annual performance evaluation of public
school teachers would be permissible under the constitutions of the
United States and Hawai'i.

Another option would be for the DOE to conduct drug tests based on
reasonable suspicion. For example, the DOE could drug-test just those
employees who are absent or tardy at a rate well above the national
average. A recent audit conducted by the accounting firm Accuity LLP
revealed that an average of 9 percent of Hawai'i's public school
teachers are absent from work on any given school day; that is almost
double the 5 percent national average. This means that 1,100 DOE
teachers are absent from school every day. I have proposed that the
DOE comply with the constitutional prohibition against random drug
testing by limiting it to those employees who have an excessive
number of absences and/or tardies without physician clearance. When I
asked the ACLU if they would challenge this form of drug testing, the
ACLU said that it considered this to be within the reasonable
suspicion permissible standard.

The bottom line is that there are more productive, proactive
solutions to this dilemma. We should not sell ourselves short with
simple-minded, ineffective, unconstitutional, Band-Aid approaches to
improving our public schools.