LEGAL BATTLE OVER TEACHER DRUG TESTING STARTS TODAY

Union Files Suit In Kanawha Circuit Court

CHARLESTON, W.Va. -- Kanawha County school board members decided to
enter a long legal battle over employee drug testing because of
several high-profile drug incidents and their own political
calculations, according to interviews with board members who support
the policy.

The board decided last week to go ahead with its plan to randomly
drug test teachers and other school employees despite warnings of a
nasty, costly series of legal actions that started today.

One teachers union, The American Federation of Teachers-West
Virginia, this morning filed a lawsuit in Kanawha Circuit Court
calling on the courts to end the board's plan to begin random
employee testing in January. The suit seeks a declaratory judgment
and injunction to prevent the implementation of the testing plan.

Fred Albert, president of AFT-Kanawha, said in a news release after
the suit was filed, "The Board left us no choice but to file the suit
once they decided to implement a policy that risks student safety and
violates the constitutional rights of its employees. The policy
violates the constitutionally protected privacy rights of those
school employees who will be randomly screened and who are not
engaged in safety sensitive positions. The policy, in effect, places
all teachers under suspicion; and this is both morally and legally
wrong."

Because of the cost of the impending legal battle, board members may
be less willing to raise teacher salaries and increase employee benefits.

The decision to continue with their testing plan, which some board
members hope could change legal thinking around the country, began as
a result of the "long and tortured history of drug problems in our
schools" according to board member Pete Thaw.

Voters

But some of the votes for the policy also came from community
pressure, despite little evidence that there is a high level of drug
use among employees. The board was also warned that the school system
could be out several hundred thousand dollars in legal fees for a
plan that will be struck down by the courts.

Board member Jim Crawford went from opposing the policy because he
thought it was unconstitutional to supporting it because of what he
heard from his supporters.

"A lot of my friends who supported me both verbally and financially
said I would have probably have gotten more votes had I supported
drug testing," he said.

All four board members who support the policy cited community
pressure to test random test all teachers.

After the board took its first go at teacher drug testing by
approving a suspicion-based test, the community wanted more. That
plan allowed the county to test teachers that administrators
suspected of being on drugs or having an ongoing drug problem. It
also allowed the school system to test employees who were hired or
sought transfers.

But board members were inundated with phone calls, said board member
Bill Raglin. He said the public had spoken very loudly that they want
a random drug test for everyone.

"As a board member elected by the public, with the constituents I
could not find any reason why I should not at least respond to the
will of the people to pursue something I was not totally convinced
had been eliminated as totally unconstitutional," he said.

Legal warnings had little or no effect on Raglin.

"I'm not going to go against the ruling of the courts, but I want to
hear what the courts have to say," he said. "And I'm not willing to
accept what I am told by the ACLU lawyer or anyone else because it's
an opinion they have - it's not a court ruling."

Only one of the five board members did not support the policy. Robin
Rector has publicly changed her mind on the policy, which she once
supported. She voted against the policy in October saying it did not
treat teachers as professionals, would damage their morale and could
invite lawsuits.

Consequences

The first lawsuit will be filed today in Kanawha County circuit court
by the West Virginia chapter of the American Federation of Teachers.

In the courtroom, the school system's drug policy faces challenges on
two fronts. The board was told last week that it "will lose" in state
court and that, in federal court, the plan is "flatly
unconstitutional" by lawyers brought in by AFT-WV.

Crawford and Thaw both think that the organizations fighting testing
are doing it without the support of many teachers.

"The teachers aren't fighting it; the teachers unions are fighting
it," Thaw said.

He added, "I don't think their unions are representing their point of
view at all."

Crawford thinks the organizations oppose the policy primarily to
boost their membership by showing teachers they are out there
fighting a battle.

"If they take us to court and they win, then they can say, 'We fought
the drug testing,'" he said.

The union disagrees.

"We are taking a stand that says this is unconstitutional. That we
have very few rights left," said Fred Albert, president of the
Kanawha County AFT chapter. "That we are not all guilty and have to
prove ourselves innocent."

Albert says that the money - several hundred thousand dollars for a
protracted court battle and around $40,000 a year for the drug testing
if the policy goes forward - could be better spent in the classroom.
He suggests it be used to reduce the student drop out rate.

But moves by the organizations may end up hurting the chances that
their members will get raises and benefits.

Last week's board meeting featured a lawyer brought in by the AFT
warning the board that their plan will provoke a "nasty, costly" legal
battle. Afterward, Dinah Adkins, president of the Kanawha County
Education Association, asked for improvements to the school system's
medical plan.

Thaw found this a galling move.

"I don't think rational people would do that," Thaw said. "I don't
think you ask for a pay raise and/or an increase in benefits at the
same time you're in court fighting drug testing."

He added, "It really shows the public what a total disregard they have
for the taxpayer: 'I don't want drug testing, but I want more money.'"

Board president Becky Jordon has a similar take.

"What is the unions' big deal that they want to spend this kind of
money?" she said of the lawsuit. "If they want raises, then don't
break our bank on legal fees."

Incidents

There is no evidence that county teachers and school personnel use
drugs more often or more commonly than other populations, but several
high profile incidents - some unproven - stirred up voters, board
members say.

Superintendent Ron Duerring said he thought some recent incidents led
board members in the direction of the random drug testing policy.
Duerring refused to categorized whether or not there was a "a problem"
with drugs among school employees because, he said, "For some people
one (incident) would be one too many."

The voting board members cite three incidents:

* The allegations that a librarian at Hayes Middle School in St.
Albans had a relationship with two male students, which included
alleged drug use and in-home visits.

* The arrest of a Pratt Elementary principle after police said they
found cocaine in his back pocket. He was found not guilty of knowingly
possessing cocaine.

* The arrest of a popular J.E. Robins Elementary teacher after police
found materials to make methamphetamine scattered throughout his East
End house.

The president of the WVEA, Dale Lee, says the high profile incidents
are not representative of the teacher population. He believes teachers
are more likely to be Sunday school teachers and community volunteers.

"It would a very, very, very small percentage of people who may have a
problem, and it is certainly a much smaller percentage in the teaching
profession than in average society," he said.

Lee called the board's policy drastic and costly.

Board members argue that teachers - like nuclear power plant
engineers, police officers and mass transportation employees,
including school bus drives - have "safety sensitive" jobs because
catastrophic incidents can occur on their watch. Drug testing is meant
to prevent these incidents.

Board members say that other professions have long tested employees
for drugs. Some organizations, including building contractors,
publicly advertise that their employees are drug free.

"I guess there's nothing more safety sensitive than someone who has my
child all day long," said school board president and mother Becky Jordon.

Raglin said statistics show that a significant number of people in all
professions are involved in substance abuse and he doesn't know why
teachers would be any different.

"I don't know how we could say one group of people are able to avoid
that which everybody else is afflicted with," he said.

Raglin said it was the incident with the Pratt principle that sold him
on random drug testing. Besides teachers and most service personnel,
board members have also voted to test themselves and other school
administrators, including the superintendent.

Thaw wonders why teachers have a problem with the policy when
employees in other professions don't - and he wonders if the courts
will have the same problems.

He said he doesn't think the board is trying to trample on people's
constitutional rights if it's trying to have a safe workplace and a
safe place for children to come to school.

"If that's trampling on constitutional rights, then there's something
wrong in this country," Thaw said.