DRUG TESTING BACK ON SCHOOL BOARD'S AGENDA

Kanawha County school board members are still trying to decide
whether to institute a random drug testing provision for teachers
and administrators, facing the likelihood that the school system
would wind up in court over doing so.

Howard Seufer, a Charleston lawyer, told board members about the
legal aspects of drug testing public employees, which all school
service personnel are considered. He spoke at a meeting Wednesday night.

There are five different types of drug tests, Seufer said.

The first is legally compelled testing. That means employers are
required by federal law to drug test employees in certain fields of
work. For example, all bus drivers are required by law to be drug tested.

Pre-employment testing means employees who are already hired are
drug tested before they begin working.

Before employees in the school system can accept a different job in
the same system, they must be drug tested. This applies only to
those positions that already drug test employees.

Suspicionless or random testing involves drug testing those who are
not under the suspicion of having used drugs. It can apply to people
who work in safety sensitive positions.

Last is reasonable suspicion drug testing. This applies only to
employees who employers suspect are using drugs. Kanawha County
schools already uses this type of testing.

The problem school board members face is that no court or
jurisdiction in West Virginia has approved or banned drug testing of
school employees.

If the board decides to approve its new policy, it would be the
first in the state to include random testing of teachers and administrators.

There is a legal precedent that was established in 1998 in the case
of Knox County Education Association versus Knox County Board of
Education. The Kanawha County policy is similar to the Knox County
policy, Seufer said.

In this Knox case, the court found teachers to be in safety
sensitive positions and deemed they were eligible to be randomly drug tested.

That was in another state, though. West Virginia's courts would not
necessarily pass the same ruling.

"It (the drug testing policy) could be fine, but we just don't
know," Seufer said. "The law is not clear in that area. I can't give
you my rubber stamp. Someone's got to be the one to go to court. We
know what the arguments would be, I think, but we don't know what
the outcome would be."

Board member Pete Thaw hopes to see the drug testing policy pass,
even if the school board is forced to go to court.

"If teachers are not safety sensitive, then who is?" he said.
"Without the teachers, it's drug testing light.

"Somebody's got to stand up and get this thing tested (in court). We
had no problem spending $1 million on Teach First. Why not do it?
Let's spend some money on something worthwhile."

But others would like to see a toned-down version of the policy
passed, one that does not include the random testing of teachers.

"I would like to see the policy tweaked," board member Barbara Welch
said. "I'm very uncomfortable with us being a testing ground."

Other board members also seemed hesitant to support a policy that
could be shot down in court.

"I think we need to be cautious," board member Becky Jordon said.

Board member Bill Raglin wants to pass a drug policy, but only one
that will last.

"I want to make sure at the end of the day we have something to
stand on," he said. "At the very least, we ought to have post-offer testing."

Board President Jim Crawford is against random drug testing. "I
don't want to spend money in court," he said.

Fred Albert, president of American Federation of Teachers Kanawha
chapter, said he opposes drug testing of teachers.

"You have witnessed first hand that we have a lot of employees doing
the correct things," he said. "We do not have a serious problem
among staff personnel. I think our money could be better spent.
Random drug testing is search and seizure and an invasion of my privacy."

The policy will be up for public comment for 30 days.

Board members will debate the issue at a December board meeting.