LEGAL LIMBO STALLS TEACHER DRUG TESTS

Court Challenges Likely Will Delay Teacher Drug Checks For Months Or Even
Years

Constitutional challenges by the teachers union and the American Civil
Liberties Union could doom the state's bid to randomly drug test more
than 13,000 Hawaii public school teachers.

The challenge by the Hawaii State Teachers Association has now spilled
over into the courts, where it could take months, if not years, for a
definitive court ruling in favor of the state that would pave the way
for the random testing of the nation's largest group of public school
educators.

The ACLU of Hawaii is also prepared to file a constitutional challenge
if the state moves to randomly test teachers.

In the meantime, the two-year contract calling for the drug testing
expires June 30, which some believe could render the issue moot.

Deputy Attorney General Richard Thomason acknowledged the legal
process could be drawn out so long that there may never be random drug
testing for the teachers.

The challengers could "tie up the issue until it becomes moot or
everybody dies of old age," he said.

But to the union as well as the ACLU, the issue goes beyond the union
bargaining for the contract and involves the constitutional rights of
the teachers.

"We are waiting a state court ruling on the constitutionality of
random drug testing of teachers and will abide by the court's
decision," HSTA President Roger Takabayashi said in an e-mail in
response to Star-Bulletin questions.

No one, however, expects a court ruling in the near future on an issue
that has split federal courts around the country. For Hawaii, neither
the 9th U.S. Circuit Court of Appeals nor the Hawaii Supreme Court has
ruled on the constitutionality of testing teachers.

An agreement between the union, the state and the Board of Education
calling for random drug testing was ratified by the schoolteachers in
2007 as part of a two-year contract that provided for 4 percent raises
each year.

The agreement said the union and the board "shall establish a
reasonable suspicion and random drug and alcohol testing procedures"
for the schoolteachers.

The contract proposal was approved by 61 percent of teachers, but 38
percent voted against it, including many who objected to the testing.

During negotiations over implementing the testing, the union obtained
information from the school board that there have been no reports or
incidents substantiating suspicions of drug use by teachers at the
schools since 2000.

The union contended that the disclosures show that the board did not
have any evidence to justify random testing of all teachers.

Without that justification, the testing would violate the state and
the U.S. constitutions' provisions against "unreasonable" searches and
seizures and subject its board of directors to money damages for
violations of the teachers' constitutional rights, the union contended
in files with the Hawaii Labor Relations Board and Circuit Court.

The union is not opposing suspicion-based testing involving teachers
who are reasonably suspected to be using drugs. But the union contends
random testing should apply only to certain categories of teachers
that could be justified under the state and federal
constitutions.

These include teachers who tested positive in a suspicion-based test,
who have workplace-related drug convictions and who carry firearms.

The union's position outraged state officials.

State chief negotiator Marie Laderta accused the union of putting the
contract to vote without intending to abide by the drug-testing terms.
She called it "a classic case of very, very bad faith
bargaining."

State attorneys also said the categories are illusory. For example, no
teacher carries firearms, Thomason said. Only a few, if any, would be
subjected to random testing under the union's proposal, he said.

Negotiations over the random testing have broken off and both sides
turned to the Hawaii Labor Relations Board.

In July, the state filed a complaint alleging the union bargained in
"bad faith." It asks the board to order the union to negotiate in
"good faith" to create "a truly random drug and alcohol testing" for
the teachers.

The board has scheduled a hearing on the complaint for March 23 and
24, but any decision would be subject to appeal to the courts.

The union filed its own petition with the board the same month. It
asked that the board declare that the random testing is illegal and an
inappropriate topic for collective bargaining. The board dismissed the
request and the union appealed the dismissal to the Circuit Court in
November.

In its appeal, the union is asking the court to declare that testing
all teachers goes beyond the scope of the contract and is
unconstitutional.

The court case is pending before Circuit Judge Victoria Marks, and any
decision by her would also be subject to an appeal to the Hawaii
Intermediate Court of Appeals and the Hawaii Supreme Court.

Meanwhile, Daniel Gluck, senior staff attorney for ACLU of Hawaii,
said several hundred teachers have contacted the organization and ACLU
is prepared to file a challenge if the state moves to implement the
random testing.

"We believe random drug testing of teachers is ineffective, expensive
and unconstitutional," he said.

One key issue is whether the random testing provision would still be
valid after the contract expires.

Jon Van Dyke, University of Hawaii constitutional law school
professor, said because the state's power to undertake the tests is
based on the contract, it would "disappear" once the contract expires.

State attorneys are researching the issue.

Thomason said they've entered "uncharted waters."

"It's very unusual to have a union say, 'What agreement? We never
agreed to that,' when there's so much out there well-documented (to
support they agreed to the random testing)," he said.

Thomason said the state has not requested that the teachers give up
their raises under the contract. "We're not at that stage yet," he
said.

Another issue in the case is whether the union can bind its membership
to the random drug testing and whether the teachers gave up their
right to challenge the testing. State attorneys believe that by
ratifying the contract, the teachers constitutionally agreed to the
testing.

The union and the ACLU disagree. "The government cannot bribe or
coerce its employees or bribe its employees into giving up their
constitutional rights," Gluck said. "You cannot allow the majority to
override its members' protected interests."

Laderta said talks for a new contract with the teachers have opened,
but neither she nor Takabayashi will say whether drug testing is a
topic because of the confidentiality of the negotiations.

But with the economic downturn and Gov. Linda Lingle's call in her
State of the State address Tuesday for reduced wage and benefits for
government employees, the focus may be on those issues rather than the
state trying to seek another drug test provision, especially with the
issue tied up before the labor board and courts.

Even some teachers who voted for the current contract aren't in favor
of drug testing.

Lisa Man, 33, a Farrington High School teacher, said she voted for the
contract thinking that all teachers would be tested but supports the
union's efforts in trying to protect her rights.

Man said she doesn't use illegal drugs.

"We agreed to drug testing without knowing the nitty-gritty of it,"
she said. "I guess we voted without having full knowledge of what was
going on."

Now that the details have emerged, she said random drug testing is not
necessary.

"It's not like we drive buses or fly planes," she said.

Constitutional challenges by the teachers union and the American Civil
Liberties Union could doom the state's bid to randomly drug test more
than 13,000 Hawaii public school teachers.

STATE EMPLOYEE DRUG TESTING The state currently administers random
drug testing to about 2,700 employees, according to the state Office
of Collective Bargaining.

Those tested include Hawaii Government Employees Association workers
who hold commercial driver licenses and hold positions of "public
trust," such as deputy sheriffs, conservation officers and
investigators with the Attorney General's Office.

In addition, the United Public Workers agreed to random drug testing
for its state workers in a two-year contract ratified in 2007. Some
city workers are also tested. The union has agreed to have 1,900 city
workers randomly drug tested. Also, about 2,000 Honolulu police
officers and 1,100 Honolulu firefighters undergo random drug tests.

No challenge to testing UPW workers have been filed, but Daniel Gluck,
senior staff attorney for the American Civil Liberties Union of
Hawaii, said they are "very concerned" and are investigating drug
testing of those employees.

The challenge by the Hawaii State Teachers Association has now spilled
over into the courts, where it could take months, if not years, for a
definitive court ruling in favor of the state that would pave the way
for the random testing of the nation's largest group of public school
educators.

The ACLU of Hawaii is also prepared to file a constitutional challenge
if the state moves to randomly test teachers.

In the meantime, the two-year contract calling for the drug testing
expires June 30, which some believe could render the issue moot.

Deputy Attorney General Richard Thomason acknowledged the legal
process could be drawn out so long that there may never be random drug
testing for the teachers.

The challengers could "tie up the issue until it becomes moot or
everybody dies of old age," he said.

But to the union as well as the ACLU, the issue goes beyond the union
bargaining for the contract and involves the constitutional rights of
the teachers.

"We are waiting a state court ruling on the constitutionality of
random drug testing of teachers and will abide by the court's
decision," HSTA President Roger Takabayashi said in an e-mail in
response to Star-Bulletin questions.

No one, however, expects a court ruling in the near future on an issue
that has split federal courts around the country. For Hawaii, neither
the 9th U.S. Circuit Court of Appeals nor the Hawaii Supreme Court has
ruled on the constitutionality of testing teachers.

An agreement between the union, the state and the Board of Education
calling for random drug testing was ratified by the schoolteachers in
2007 as part of a two-year contract that provided for 4 percent raises
each year.

The agreement said the union and the board "shall establish a
reasonable suspicion and random drug and alcohol testing procedures"
for the schoolteachers.

The contract proposal was approved by 61 percent of teachers, but 38
percent voted against it, including many who objected to the testing.

During negotiations over implementing the testing, the union obtained
information from the school board that there have been no reports or
incidents substantiating suspicions of drug use by teachers at the
schools since 2000.

The union contended that the disclosures show that the board did not
have any evidence to justify random testing of all teachers.

Without that justification, the testing would violate the state and
the U.S. constitutions' provisions against "unreasonable" searches and
seizures and subject its board of directors to money damages for
violations of the teachers' constitutional rights, the union contended
in files with the Hawaii Labor Relations Board and Circuit Court.

The union is not opposing suspicion-based testing involving teachers
who are reasonably suspected to be using drugs. But the union contends
random testing should apply only to certain categories of teachers
that could be justified under the state and federal
constitutions.

These include teachers who tested positive in a suspicion-based test,
who have workplace-related drug convictions and who carry firearms.

The union's position outraged state officials.

State chief negotiator Marie Laderta accused the union of putting the
contract to vote without intending to abide by the drug-testing terms.
She called it "a classic case of very, very bad faith
bargaining."

State attorneys also said the categories are illusory. For example, no
teacher carries firearms, Thomason said. Only a few, if any, would be
subjected to random testing under the union's proposal, he said.

Negotiations over the random testing have broken off and both sides
turned to the Hawaii Labor Relations Board.

In July, the state filed a complaint alleging the union bargained in
"bad faith." It asks the board to order the union to negotiate in
"good faith" to create "a truly random drug and alcohol testing" for
the teachers.

The board has scheduled a hearing on the complaint for March 23 and
24, but any decision would be subject to appeal to the courts.

The union filed its own petition with the board the same month. It
asked that the board declare that the random testing is illegal and an
inappropriate topic for collective bargaining. The board dismissed the
request and the union appealed the dismissal to the Circuit Court in
November.

In its appeal, the union is asking the court to declare that testing
all teachers goes beyond the scope of the contract and is
unconstitutional.

The court case is pending before Circuit Judge Victoria Marks, and any
decision by her would also be subject to an appeal to the Hawaii
Intermediate Court of Appeals and the Hawaii Supreme Court.

Meanwhile, Daniel Gluck, senior staff attorney for ACLU of Hawaii,
said several hundred teachers have contacted the organization and ACLU
is prepared to file a challenge if the state moves to implement the
random testing.

"We believe random drug testing of teachers is ineffective, expensive
and unconstitutional," he said.

One key issue is whether the random testing provision would still be
valid after the contract expires.

Jon Van Dyke, University of Hawaii constitutional law school
professor, said because the state's power to undertake the tests is
based on the contract, it would "disappear" once the contract expires.

State attorneys are researching the issue.

Thomason said they've entered "uncharted waters."

"It's very unusual to have a union say, 'What agreement? We never
agreed to that,' when there's so much out there well-documented (to
support they agreed to the random testing)," he said.

Thomason said the state has not requested that the teachers give up
their raises under the contract. "We're not at that stage yet," he
said.

Another issue in the case is whether the union can bind its membership
to the random drug testing and whether the teachers gave up their
right to challenge the testing. State attorneys believe that by
ratifying the contract, the teachers constitutionally agreed to the
testing.

The union and the ACLU disagree. "The government cannot bribe or
coerce its employees or bribe its employees into giving up their
constitutional rights," Gluck said. "You cannot allow the majority to
override its members' protected interests."

Laderta said talks for a new contract with the teachers have opened,
but neither she nor Takabayashi will say whether drug testing is a
topic because of the confidentiality of the negotiations.