DRUG TESTING OF TEACHERS LIKELY TO FACE LEGAL HURDLES

Some constitutional law experts say the random drug-testing clause in
the newly approved public school teachers contract could be a
violation of teachers' privacy and civil rights and may make a strong
case if challenged in court.

"The many teachers who voted against the contract would seem to me to
have a solid basis for challenging the drug-testing requirement," said
Jon Van Dyke, a professor of constitutional law at the William S.
Richardson School of Law at the University of Hawai'i-Manoa.
"Constitutional rights of this magnitude cannot be lightly waived. And
one group cannot waive the constitutional rights of another."

Lt. Gov. James "Duke" Aiona, an attorney, said labor and contract law
would also play a role in any court test, and the simple fact of
contract ratification would be a major factor.

"The bottom line is this was a negotiated contract and teachers voted
in favor and ratified," Aiona said. "As far as we're concerned, it's
binding.

"We're not saying it can't be trumped, but it's something both sides
came to the table on, hammered it out, and then ratified, and to me
that's the strongest provision."

Hawai'i's approximately 13,500 public school teachers ratified the
two-year contract May 2 in a 61.3 percent to 38.2 percent vote, with
the union giving the contract to the membership without its
endorsement -- a rare occurrence. The contract also includes a 4
percent raise in each year, plus step increases for many teachers.

The state said it would not agree to a contract that did not include
random testing.

"Anyone can challenge anything" in court, said Marie Laderta, chief
negotiator for Gov. Linda Lingle's administration. "Whether the
contract can withstand a challenge is another matter."

Laderta said she will work with the teachers' union and the state
Department of Education to ensure the contract offers teachers the
opportunity for rehabilitation when needed.

"I have confidence once we get going people will see we are really
there to protect them from drug abuse and the children from being in
an abusive environment," Laderta said.

ACLU CONTACTED

The challenges might still come, according to union leaders, who say
some Hawai'i teachers have been in contact with the Hawai'i branch of
the American Civil Liberties Union and private attorneys.

"Suspicionless drug testing of teachers is a violation of their
privacy, their dignity and their constitutional rights," said Graham
Boyd, an ACLU attorney with expertise in constitutional law based in
Santa Cruz, Calif.

An attorney for the National Education Association, which represents 2
million teachers nationwide, said the legal issues surrounding teacher
testing are murky because the U.S. Supreme Court has never ruled
specifically on random drug testing of teachers.

Michael D. Simpson, assistant general counselor for the NEA's Office
of General Counsel in Washington., D.C., said lower courts have ruled
both ways, with the deciding point centering on the issue of whether
or not teachers can be considered "safety sensitive" workers -- an
issue which has trumped privacy rights.

"The Supreme Court upheld random drug testing of public employees who
hold 'safety sensitive' positions, and defined safety sensitive
positions as those jobs that involve 'duties fraught with such risks
of injury to others that even a momentary lapse of attention can have
disastrous consequences,' " Simpson said.

Some of these include airline pilots and nuclear power plant
operators, he said.

"When the government wants to drug test its own employees it must show
that the job is 'safety sensitive,' " Boyd said. "So the central
question is: How safety-sensitive is the job?"

Nationally, teacher drug testing is rare, he said, and the number of
court cases are equally rare.

There are as few as four cases on the record books regarding random
drug testing of teachers, said NEA lawyer Simpson. The courts have
already struck down random drug testing of teachers in two cases and
upheld it in two others. None has yet headed on to the U.S. Supreme
Court.

HIGH-PROFILE CASES

The issue of drug testing for teachers came to the fore following
several high-profile cases that included the arrest of four teachers
since October on drug-related charges.

Leilehua High School teacher Lee Anzai, arrested in October and
charged with selling crystal methamphetamine, pleaded guilty to a
single count of selling the drug.

Two months later, two Mililani Middle School teachers were arrested
for allegedly smoking marijuana before they showed up for work on a
Monday morning. Each pleaded no contest to the petty misdemeanor charge.

In February, Ka'elepulu Elementary School resource teacher Bronwyn
Kugle was arrested and charged with conspiracy to distribute drugs.
She has pleaded not guilty and is seeking entry to a drug treatment
program.

None of the cases involved students.

Legislators this session introduced bills calling for random drug
testing, but the proposals did not survive.

Ongoing teacher contract negotiations had included deliberations over
incorporating "drug testing for cause" before the governor demanded
the contract include random drug testing.

While Laderta called ratification a win that would create safer
schools for students, Hawai'i State Teachers Association executive
director Joan Husted said many teachers felt they were being held
ransom to vote for testing to get the pay raise.

The vote breakdown was indicative of strong feelings on both sides
within union membership. Some teachers felt they were being forced to
sign away civil rights for the sake of a wage increase, while others
said teachers were being singled out on the basis of a handful of drug
cases that made headlines. Others said teachers are a law-abiding
group of professionals who don't need to worry.

In the wake of ratification, Big Island elementary school teacher
Julianne Ostrosky wondered who would help teachers who may choose to
challenge the clause.

"The union is not going to be able to help us ... because they
ratified this," she said. "They've pretty much tied their hands as far
as being able to represent us. So we're going to have to do
class-action suits against the state of Hawai'i and the HSTA for
depriving us of our Fourth Amendment rights. That's our only recourse."

Van Dyke said if the issue were to be tested in court, the Hawai'i
State Constitution's tough privacy clause -- considered stronger than
that in the U.S. Constitution -- could come into play.

"Hawai'i's right to privacy is written in strong terms," he said, "and
it was clearly intended to protect the rights of our citizens against
governmental intrusion and to put a heavy burden on the government to
justify any such intrusion."

Van Dyke said the government is required to use the "least intrusive
alternative" to achieve its goals.

"If a teacher is drug-impaired, that should be something that can be
deduced by observing the person's actions, and a drug test based on
probable cause of law violations could be justified," he said. "But
testing every teacher based on a very few instances of law violation
does not seem to me to meet the provision in Hawai'i's constitution
protecting each individual's right to privacy."

ISSUES BEING RAISED

With the contract ratified, the parties have a year to work out
details and procedures. While there hasn't yet been a meeting to begin
hammering out all the provisions, Laderta said the three parties have
agreed to meet late this month to start work.

Issues are already being raised, including the accuracy of test
results and concern about false positives that could be caused by
food, such as poppyseed muffins; fairness, to ensure teachers will not
be singled out; the need for two different tests -- one for alcohol
and the other for illegal drugs; how randomization will be done; the
cost, and who pays.

Union leaders say they will be ready to start work on an agreement as
soon as they conduct additional research. School bus drivers and
others who are required to hold commercial driver's licenses already
are subject to random drug testing.

DOE spokesman Greg Knudsen said for school bus drivers, the random
testing rate for controlled substances is not less than 50 percent of
the number of drivers employed. For alcohol, it is 25 percent of those
employed.

Other state workers not employed by the DOE -- but in positions of
safety and public trust in several other bargaining units -- also are
subjected to random drug testing based on a 25 percent sample for
controlled substances and 5 percent for alcohol, Knudsen said.

"Teachers are going to do this in good faith," Husted said. "They are
demonstrating to the community that they understand the community
concerns. They understand why the community is supporting this, but
the teachers expect to be treated fairly and with respect. That's the
very minimum standard that ought to be in place."

But the union also expects teachers will be protected, she
said.

"We're not going to let drug-testing become a witch hunt for people
who decide they don't like a particular teacher," she said.

Under state law, personnel records are confidential, and Husted said
the union will take all necessary steps to ensure records involving
drug testing remain private.

"There is a lot of fear about who will know about the test, such as
'will parents know that I'm being tested?' " she said.

ACCURACY RATINGS

Husted said the union will want the least invasive tests, as well as
tests with high accuracy ratings.

The national experts said that the most definitive findings come from
double testing, including an initial test and then a confirmation test
- -- both done by a federally certified laboratory. Husted said
currently there's no federally certified lab in Hawai'i, but an
existing lab can apply for this certification.

"If a school uses anything besides a federally certified lab, there's
a big risk of false positives," said the ACLU's Boyd. "There are
dozens of other ways to do drug testing which are not proven to be
accurate -- hair, saliva, sweat-patch testing. Even the urine tests
you can buy over the counter in a pharmacy are not proven to be
accurate. The only method is a federally certified lab, and it's more
expensive."

Knudsen said it's too early to say yet what the DOE will be hoping to
establish in the coming negotiations.

"We will be implementing the requirements of the contract and working
with the HSTA to do that," Knudsen said. "We want it to be an
effective and fair procedure that fills the requirement of the
contract clause."