TEACHERS' UNION DEBATES DRUG TESTING

The Hawai'i State Teachers Association has changed its stance on
random drug and alcohol testing in the year since a new contract was
signed, drawing a sharp rebuke from the state government.

The original contract, agreed upon in June 2007, stated that HSTA
would establish "... random drug and alcohol testing procedures ...
and implement a plan no later than June 30, 2008," according to a July
18 press release from Gov. Linda Lingle's office.

However, a July 17 letter from HSTA Executive Director Mike McCartney
to Department of Education Superintendent Patricia Hamamoto explained
that the HSTA now believes random, or suspicionless, testing is not
"consistent with both the state and federal constitutions."

The last-minute change of heart angered representatives of the
state.

"I have no concerns about its (the program's) constitutionality,"
Marie Laderta, the state's chief negotiator, said yesterday in a phone
interview. "I do not believe there to be any constitutional issues."

"By failing to fulfill an obligation that they agreed to, HSTA leaders
have made a mockery of the collective bargaining process," Lingle said
in the release. "The union leaders are doing a disservice to the
teachers, as well as the students, by demonstrating that they did not
bargain in good faith."

HSTA President Roger Taka-bayashi acknowledged yesterday that laws had
not changed in the year since the agreement was reached, but insisted
teachers' privacy rights were at issue and said that there had been a
"growth of knowledge" regarding confusing legalities.

"We can not knowingly agree to procedures that violate the state and
federal constitutions," McCartney said in his letter. "Any agreement
of this type would subject the state and all of us to unnecessary
litigation."

"We cannot give up any individual's constitutional rights," said
Takabayashi in a phone interview. "We need to make sure that whatever
procedures we pass can withstand a constitutional challenge."

HSTA spokeswoman Teri Tanaka specified that Amendments 4 and 6 to the
U.S. Constitution and Sections 5, 6 and 7 of Article I of the Hawai'i
State Constitution were the pertinent clauses.

In a pair of 1989 cases, the U.S. Supreme Court ruled that, while
taking urine and blood samples did constitute a search of a person as
defined by the Fourth Amendment, random drug and alcohol testing is
not unreasonable in specific instances.

In the two rulings, the court held that suspicionless testing was
permissable for railroad employees following train accidents and for
U.S. Customs employees seeking positions involving drug interdiction,
the carrying of firearms or access to classified information.

With those decisions, the court outlined the concept of
"safety-sensitive" jobs that could be subjected to random testing
despite privacy concerns. It remains to be seen if that standard
applies to other government employees, such as state-employed teachers.

In 1987, the New York State Court of Appeals ruled that suspicionless
urinanlysis testing of teachers was an intrusion of their privacy and
therefore unconstitutional.

However, in 1998, the U.S. 6th Circuit Court of Appeals determined
that the Knox County (Tenn.) Board of Education could institute random
drug and alcohol testing of teachers because their in loco parentis
capacity as parental stand-ins during school hours outweighed their
right to privacy.

Hawai'i Deputy Attorney General Jim Halvorson said the state has two
strong arguments regarding suspicionless testing: the 6th Circuit
Court's ruling on teachers' special responsibilities and the fact that
the HSTA previously agreed to the terms of the contract.

Last Friday, the state filed a formal prohibited practice complaint
with the Hawai'i Labor Relations Board. McCartney's letter said that
the HSTA would be asking the HLRB for a declaratory ruling.

In June, both the state and HSTA filed prohibited practice complaints
pertaining to structured pay increases for tenured teachers requested
but not negotiated by the HSTA, Halvorson said.

The HLRB, which has yet to issue a ruling on any of the complaints,
did not return a phone message left by The Garden Island as of press
time.