HAWAII'S DRUG TESTING FOR TEACHERS IN LIMBO

Governor, State Board At Odds Over Cost Of Program

Random drug testing of Hawaii's public school teachers was supposed
to begin a month ago, but a stalemate over who will ultimately pay
for the program has prevented the process from getting started.

Gov. Linda Lingle, who pushed for the testing last year as part of
the Hawaii State Teachers Association's union contract, says the
state education department should foot the bill and has enough money
in its $2.3 billion budget to do so. The state board of education,
however, has so far refused to approve funding for the program,
saying it would require taking money away from the classroom.

"The governor believes the department of education can find the funds
in its budget," Russell Pang, a spokesman for Gov. Lingle, a
Republican, said in a July 15 email.

Covering the cost, Mr. Pang added, would be even easier if department
officials dropped their plan to test 25 percent of all teachers-and
their $500,000 estimate of how much the program would cost-and
instead adopted a scaled-down proposal that would test only 1 percent
of the state's 12,000 teachers each year.

That would make the cost considerably lower. With each test costing
about $35, the total for testing 120 teachers would be $4,200.

"By taking this narrower approach that focuses on the random element,
rather than testing the large number of teachers the [department of
education] and [board of education] originally envisioned, the
implementation becomes more manageable, affordable, and effective,"
Mr. Pang wrote.

He added that he was encouraged by state Superintendent Patricia
Hamamoto's and board Chairwoman Donna Ikeda's willingness to consider
the governor's plan.

Legal Challenge Planned

Meanwhile, the American Civil Liberties Union and a group of roughly
200 Hawaii teachers have vowed to challenge the program in court, if
it ever begins.

"If drug testing of teachers goes forward, we are ready to file
suit," said Graham Boyd, the director of the ACLU's Drug Law Reform
Project, based in Santa Cruz, Calif.

Even though the 13,000-member Hawaii State Teachers Association, an
affiliate of the National Education Association, ratified the
contract containing the drug-testing provision, union officials said
the members felt forced to agree to the controversial program because
it was tied to an 11 percent salary increase. ("Hawaii Teachers Face
Random Drug Tests," May 9, 2007.)

Gov. Lingle proposed the plan amid a series of well-publicized drug
arrests involving employees of the statewide school district.

And despite the holdup over paying for the program-which education
department officials originally said would require nine new staff
members-the HSTA and the department are trying to work out the
details of implementation, as was stipulated in the contract.

"We are hoping to get it done real soon," said Roger Takabayashi, the
president of the HSTA. "The teachers did ratify it, and we are
working in good faith."

Still, he added, a number of issues have yet to be decided, such as
who will fill in for a teacher who is chosen to be tested, a process
that requires being away from the classroom for three hours.

"Someone has to take the class," Mr. Takabayashi said. "It's a lot
more complex than what meets the eye."

Milton Goto, a spokesman for the board of education, confirmed July
18 that procedures were being worked out. But he said the board was
"still having difficulty finding money for an unfunded mandate,"
especially because the board is expected to cut roughly $20 million
from its fiscal 2009 budget of $2.3 billion.

While drug testing of teachers nationwide is rare, it's more likely
to be required for new applicants rather than current employees. Such
policies are more common when an employee is suspected of using
illegal drugs or there is evidence of a past drug problem.

Case law on drug tests for teachers is mixed. In 1998, the U.S. Court
of Appeals for the 5th Circuit, in New Orleans, struck down a
drug-testing program involving teachers, while the 6th Circuit
federal appeals court, in Cincinnati, upheld a different program that year.

ACLU's Letter

Even though the ACLU is waiting to see whether Gov. Lingle and the
state school board reach an agreement that gets the program under
way, the civil-liberties group hasn't stayed out of the situation completely.

In February, Vanessa Chong, the executive director of the ACLU of
Hawaii, joined legal experts and a group of Hawaii teachers in
sending a letter to the governor about what was perceived as a
threat to withhold a portion of the teachers' raises if the
drug-testing program didn't begin.

Ms. Lingle's comments about the need for the testing program to go
into effect were made after the state board voted against spending
money on the program.

"In order to silence your critics, you threatened to withdraw the pay
raises that teachers have been receiving since the agreement's July
1, 2007, effective date," the Feb. 1 letter said, referring to the
teachers who have said they would join the ACLU in a lawsuit.

The letter continued by noting that the teachers' contract has a
"severability" clause, meaning that if one piece of the contract is
found to be invalid and is removed, the rest of it remains intact.

"Even absent an explicit severability clause, your all-or-nothing
interpretation of the labor agreement lacks legal merit," the letter
said. Mr. Pang responded that Gov. Lingle has said she doesn't want
to make any threats.

"The governor never said teachers could lose their pay raises if the
program does not start," he said.

Vol. 27, Issue 44