COUNTY SCHOOL DRUG TESTING PLAN BLOCKED TEMPORARILY

Kanawha Board Presented Weak Case, Judge Says

Kanawha County teachers and other school employees will not be
randomly tested for drugs beginning later this week, a federal judge
ruled Monday.

CHARLESTON, W.Va. - Kanawha County teachers and other school employees
will not be randomly tested for drugs beginning later this week, a
federal judge ruled Monday.

Chief U.S. District Judge Joseph R. Goodwin said lawyers for the
Kanawha school board did not provide any evidence to show the county
school system has a pervasive drug problem or give a strong reason why
he should override school employees' civil liberties.

He said that "suspicionless, random drug testing in this case violates
the Fourth Amendment" of the U.S. Constitution, which protects
Americans against unreasonable searches and seizures.

Employees who are randomly subjected to urine tests face "invasive,
degrading, humiliating" searches that should only be required if there
is a compelling reason, Goodwin said.

The temporary injunction blocks the program from taking effect on
Thursday, but the case will continue in federal court. Jim Withrow,
general counsel for the school board, expects Goodwin to schedule
hearings in the near future.

Both of the state's teachers unions are fighting Kanawha County
schools' drug testing policy.

On Nov. 26, lawyers for the American Federation of Teachers-West
Virginia sued the school board in Kanawha Circuit Court against the
school board. The West Virginia Education Association later intervened
in the case. Earlier this month, the lawsuit was moved to federal
court at the school board's request.

Goodwin said the evidence he was presented Monday morning did not
convince him that school positions - including teachers,
cabinetmakers, locksmiths and plumbers - should be considered
"safety-sensitive."

In 1990, the state Supreme Court ruled that only workers in such jobs
could be subjected to random drug tests in private industry.

School board members, who approved random drug tests by a 4-1 vote on
Oct. 15, defined at least 45 types of employees as safety-sensitive.
The list also included Superintendent Ron Duerring and other top
county administrators, principals, coaches, counselors, custodians,
electricians and maintenance staff.

Jan Fox and Carolyn Wade, attorneys for the school board, argued that
teachers are responsible for children's safety every day.

Fred Albert, president of AFT-Kanawha County, took the witness stand
Monday. In his 19 years, Albert said, he's never encountered a
co-worker who was obviously impaired by drugs while at school. Fox
questioned Albert on his job duties. She asked if he ever broke up a
fight or helped students leave the building during fire drills, and if
the safety of students is one of his primary responsibilities. He
answered yes to all three.

Duerring testified and recalled a few incidents of employee substance
abuse. When he was a principal, he said, one teacher at his school was
an alcoholic who often arrived at work inebriated and could barely
walk up the stairs some days.

Without mentioning names, Duerring also referred to Pratt Elementary
Principal David Anderson, who was charged with possession of cocaine
in October 2006. Anderson was later acquitted of the charges and
reinstated, which AFT attorney Bob Bastress pointed out.

More recently, Duerring said, a county teacher suspected of drug use
was suspended because she fell asleep at her desk and failed to teach
the curriculum.

The judge repeatedly asked Duerring, Fox and Wade about the real risk
school board members perceived when they considered random employee
drug testing. He asked if the school board had evidence - either local
or national - that teachers who use drugs have harmed students.

Duerring said school board members pushed for random drug testing
because those employees defined as safety-sensitive are ones who
teach, oversee and otherwise spend time around children throughout the
school day.

"That's it?" Goodwin asked. He later added, "So far I have not heard,
here in this courtroom, a justification for random drug testing."

Fox and Wade said school board members sometimes need to be proactive
to prevent a catastrophe.

Both parties are expected to depose witnesses in the coming weeks to
strengthen their arguments. Withrow indicated that county officials
would pore over employee job descriptions with administrators to
better describe why many employees are safety-sensitive.

"I think [the judge] probably gave us a pretty good road map of what
we do have to show," Withrow said.

School board member Pete Thaw, who has championed the drug-testing
policy, vowed to appeal unsuccessful court rulings and said the
teachers unions should join the fight. "They should be down there
holding hands with us, helping us," he said.

"We're going to pursue this to the end," Thaw said. "Somewhere this is
going to prevail. In the meantime, other states are fighting. We're
not trying to be first, but we think we've got the best case. We're
not going to get tired on this one. Ever."

Teachers union officials were pleased with Monday's ruling. "Our
constitutional rights were upheld and I think that's what's
important," Albert said. "Of course we're pleased that we're over this
hurdle."

Judy Hale, president of AFT-West Virginia, called the lawsuit a waste
of taxpayer money.