TEACHERS' DRUG TESTS LIMITED

An imposed deal eliminates random screenings, but a "reasonable
suspicion" policy outlines penalties

The state abandoned an effort to implement random drug testing for
Hawaii's public school teachers in its "last, best and final"?offer
imposed July 1.

But the new terms do spell out, for the first time, the penalties for
teachers who fail alcohol or drug impairment tests conducted under a
"reasonable suspicion" policy.

According to the state's imposed offer, which also includes wage
reductions and higher health care premiums, teachers face suspensions
of five to 30 days for positive tests, and will be asked to
voluntarily resign after a third positive.

Teachers who admit to being impaired before an observation test won't
face a suspension, but will be required to submit to testing for up to
a year.

The Department of Education has had a "reasonable suspicion"?policy
for teacher drug and alcohol testing since 2007, the same year the
union agreed to random drug testing.

But the procedures the DOE can take in the event of failed tests were
never outlined in the teacher contract.

The DOE would not comment on the new policy, and said statistics were
not immediately available on how many teachers had tested positive for
alcohol or drugs in recent years.

There also wasn't information on the previous penalties for failed
tests, since they varied.

Hawaii State Teachers Association officials also would not comment.

The state's "last, best" offer, whose terms were publicly released
this week, does leave the door open to drug testing changes in the
future, saying the state and union will review the drug and alcohol
testing program when negotiations for the 2013-15 contract begin.

But onlookers say that's unlikely, which means it's almost certain the
contract offer brings to an end a years-long debate between the state
and HSTA over whether teachers should be randomly tested for drugs or
alcohol.

Daniel Gluck, senior staff attorney at the American Civil Liberties
Union of Hawaii, which staunchly opposed random drug testing for
teachers, said that he's "fairly confident that it's not going to come
up again."

He added, "The ACLU is pleased that none of Hawaii's educators has
been subjected to unconstitutional random drug testing."

The issue of testing first arose in 2007, when Hawaii State Teachers
Association members ratified a two-year contract that included a
first-in-the-nation statewide random drug testing policy in exchange
for 4 percent raises each year.

The agreement said the union and the state Board of Education "shall
establish a reasonable suspicion and random drug and alcohol testing
procedures for teachers."

But quickly, teachers and the HSTA raised concerns about random drug
testing, drawing the ire of the Lingle administration, which accused
the union of not bargaining in good faith.

Since then the issue of random drug testing has been embroiled in
controversy - and legal wrangling, with complaints before the Hawaii
Labor Relations Board and state Circuit Court.

Proponents of random drug testing point to several high-profile drug
abuse and trafficking cases involving teachers. But critics say it's
an unwarranted invasion of privacy and unconstitutional.

Random drug testing for teachers has also been a hot-button issue
nationally, and has been struck down by several mainland courts.

Shortly after the union agreed to it, the state's random-testing
policy hit a big snag, when the Board of Education refused in 2008 to
pay for random testing, saying the $455,000 would be better spent in
the classrooms.

Later, the HSTA and state filed dueling complaints with the Hawaii
Labor Relations Board.

And in Circuit Court the HSTA sought a ruling on the constitutionality
of random drug testing.

None of those legal challenges went anywhere, and the court threw out
HSTA's question, saying any decision would be premature because no
testing was taking place.

In HSTA's two-year contract that expired June 30, the state and union
agreed to continue the reasonable-suspicion testing policy but steer
clear of random drug testing until the courts ruled it was
"constitutionally permissible."

Under the "testing procedures" in the state's imposed contract for
teachers, a supervisor can call a teacher in if impairment is
suspected. When a "positive determination" of impairment is made, in
front of a witness, the teacher is escorted to a testing site.

Teachers who refuse to be tested "shall be discharged."

A positive test for a first offense carries a punishment of five days'
suspension for alcohol impairment and 15 days for drugs. A second
positive test results in a 15-day suspension for alcohol and a 30-day
suspension for drugs.

A third positive test requires a voluntary resignation.

The procedures also say teachers who admit to being under the
influence of alcohol or drugs prior to an impairment test will not be
disciplined, but will be subject to random testing for up to one year
and must participate in a substance abuse rehab program.