KANAWHA BOARD PLOWS AHEAD WITH DRUG TESTING OF TEACHERS

Members Anticipate Long Battle, But Believe Victory Could Change
National Thinking

CHARLESTON, W.Va. -- The Kanawha County school board realizes it may
be headed for a costly legal battle over teacher drug testing, but it
hopes to emerge with a victory that could change legal thinking around
the country.

The five-member board on Thursday evening decided to go ahead with
plans to randomly drug test teachers.

Both supporters and opponents of the plan to drug test nearly a
quarter of school employees a year starting in January expect the
program to be promptly halted by a judge.

Both sides anticipate a preliminary injunction to last for the several
years it could take for the two sides to exhaust a series of lawsuits
and appeals.

Board members will go ahead with the plan, which they approved 4-1
last month, despite being told they were in for a "nasty, costly"
court fight over a testing policy that is "clearly
unconstitutional."

"The board's decision is, at the end of the day, 'Is this worth it?' "
said Adam Wolf, an attorney from the national office of the American
Civil Liberties Union.

Board members clearly think the law is not so clear-cut.

They argue that teachers, staff and administrators who look after
children every day should be held to the same standard as police
officers with firearms, nuclear power plant engineers, airline pilots
and bus drivers - all groups of employees that courts have agreed hold
safety-sensitive jobs and can be subject to some kind of suspicionless
testing.

Board member Bill Raglin compared the board members to those who
"pushed the bubble" to integrate schools.

"Someone at some point needs to test the water," he later
said.

The school system's drug policy faces challenges on two
fronts.

West Virginia University law school professor Bob Bastress told the
board that West Virginia courts aren't on its side.

"There will be a lawsuit," he told the board. "And you will
lose."

Wolf said federal law isn't in the policy's favor either.

"It just seems like it's flatly unconstitutional," he
said.

But both Wolf and Bastress agree with the school system that
"safety-sensitive" workers are generally permitted by courts to be
tested for drugs without suspicion.

The board and its lawyers argue that teachers have safety-sensitive
jobs.

At least one court, the U.S. Sixth Circuit Court of Appeals, has said
it considers safety-sensitive a "group of professionals to whom we
entrust young children for a prolonged period of time on a daily
basis." But the court noted it did not favor random testing.

A judge is likely to grant teacher organizations and the civil rights
group an injunction that halts the drug testing until lawsuits and
appeals wind their way through the courts. However, if it doesn't, the
county plans to begin tests in January.

The county would test about 830 of the 3,300 employees it now
considers safety-sensitive, including teachers, service personnel and
administrators. Those tests would be given over the nine months school
is in session. A year's worth of testing is expected to cost nearly
$40,000.