\WHERE TEACHERS, STATE CAN AGREE

The state Department of Education and its teachers union have sparred
for years over drug testing of faculty but may have finally resolved
the issue as part of a contract proposal - even as that imposed
contract is under dispute due to wider disagreement. While the union
has not commented on the drug-testing proposal, the compromise should
satisfy its concerns and be adopted as part of an ultimate contract
to be ratified by teachers.

The Hawaii State Teachers Association agreed with the state four
years ago on a contract that called for creation of "a reasonable
suspicion and random drug and alcohol testing procedures" for the
teachers. Random testing of teachers was nationally unprecedented.
Although the contract was ratified by 61 percent of teachers,
constitutional issues over random testing remained.

HSTA agreed to work with the Department of Education to develop a
random and alcohol testing program, but the union has contended that
random testing be limited to certain categories of teachers that
could be justified under the state and federal constitutions. The
union cannot ignore the constitutional rights of individual members,
even though the contract was approved by the majority.

The issue has been set aside not only by the constitutional question
but by the expense of random testing during the economy downturn. The
state Board of Education shelved the policy in 2008 so it could spend
in the classroom the $455,000 projected for random drug testing.

The U.S. Supreme Court has approved random testing of government
employees in circumstances involving "special needs," such as
railroad employees involved in accidents or suspected of drug use and
federal customs employees engaged in drug enforcement. The issue is
whether "special needs" for random searches should be applied to
school employees, and such a court battle could go on for years.

Neither the 9th U.S. Court of Appeals, which includes Hawaii in its
jurisdiction, nor the Hawaii Supreme Court has ruled on the
constitutionality of randomly testing teachers for drugs or alcohol.
A deputy attorney general in the previous Lingle administration
remarked that a legal challenge could "tie up the issue until it
becomes moot or everybody dies of old age."

Now, at long last, comes an agreeable drug-testing procedure outlined
in both Department of Education policy and the HSTA contract. The
teachers union has agreed to drug and alcohol tests of teachers based
on "reasonable suspicion" - a notch below probable cause - to hold an
"impairment interview" of a teacher. A teacher's rejection of such an
interview would result in discharge. A teacher who fails one test or
more would face suspension and ultimately dismissal. Admission of
having been under the influence of illicit drugs or alcohol would
trigger random testing for up to a year.

Past drug arrests of public school teachers and other DOE employees
justify a program that has the support of both the department and the
union. Cooperation in such an effort should be more effective - and
less costly - than random testing embroiled in controversy.