DRUG TESTING POLICY IS NOT UNCONSTITUTIONAL

In her July 10 Island Voices column, Kim Coco Iwamoto opined that the
Department of Education could not implement random drug testing
because no state "actor" can constitutionally conduct such testing.

Her analysis, however, appears to be based on situations where the
state imposes random drug testing by law or policy. That is not this
case.

The drug testing policy that the DOE has not implemented is in the
teachers' collective bargaining agreement. Legally, that constitutes
consent.

As one federal appeals court stated over 15 years ago: "Even where a
drug testing policy has been held to be constitutionally infirm, a
public employee may not pursue a civil rights suit based on that
infirmity where his union and his employer agree to operate under that
policy."

In short, it is not unconstitutional for the DOE and the state to
implement that agreed-upon testing.

Paul Schraff

Kane'ohe