ACLU POISED TO SUE OVER RANDOM DRUG TESTING OF TEACHERS

Whether the state can randomly select a handful of teachers and force
them to undergo immediate drug testing is a decision the governor has
26 days left to address.

After that, the American Civil Rights Union will sue, according to
Carlie A. Ware, an attorney with the ACLU Drug Law Reform Project.

Claiming that a stipulation within the teachers' next two-year
contract violates constitutionally protected rights, Ware said random
drug testing without suspicion is a violation of privacy, as medical
status - ranging from pregnancy, the presence of disease or traces of
legitimate prescriptions - can be determined from urine samples.

The random testing is different than pre-employment drug screening, as
it can be done more than once and without warning, Ware said.

Exposing employees who haven't shown any reason to be tested threw
union leaders for a loop, as they allege the state brought the
condition of suspicionless drug testing to the negotiating table at
the eleventh hour.

The result ended in a majority vote in favor of the new contract by
the slimmest margin in the 35-year history of the Hawaii State
Teachers Association, Tom Perry, director of the union's Kaua'i
office, said.

"The governor's reps basically came in and said, 'I don't care what
you worked out before, if you don't put in my random drug testing,
everything is off the table, including salary,'" Perry said.

Ware said what she interpreted as a "take-it-or-leave-it" attitude by
Lingle forced teachers to use their civil rights as a bargaining chip.

"The governor is essentially requiring teachers sell or trade their
privacy rights, saying, 'I'll give you a pay raise if you do so,'
which is illegal."

Drug testing based on suspicious behavior was already on the table in
the new contract, but Lingle then gave a last-minute proposal that
handed the government a carte blanche that could easily be abused,
Perry said.

"How sad to have a nice, little classroom teacher who is now on a
medication from the doctor have a false positive and have to pee in
front of another officer, all medical records examined, just to prove
innocence," Perry said.

Complicating the issue is medical marijuana use, which is legal in
Hawai'i. Those testing positive could have to show whether they had it
prescribed, thereby forcing them to enable superiors to view Health
Insurance Portability Act-protected information.

Medical marijuana is prescribed for a finite number of ailments,
including some fatal diseases, such as cancer and AIDS.

Though two Kula educators were arrested in April by Kaua'i police in a
raid that yielded 50 marijuana plants, processed marijuana, drug
paraphernalia and ammunition, Ware reiterated that teachers and the
ACLU weren't arguing whether drug testing was constitutional, but
rather whether testing should be done on a suspicious behavior-related
premise.

"I have followed the news myself, and there have been a number of
teachers and administrators arrested for suspicion of activity related
to drugs," Ware said. "But testing 13,500 people because of six people
shows the problem: This is political. It's the governor playing
politics with teachers' civil rights."

How many of the 13,500 employed teachers would be subject to testing
and how often the tests would be done remains to be seen; also unknown
is the burden the random testing will cost taxpayers.

The cost is one policy aspect that frustrates sixth-grade Kilauea
School teacher Jo Thompson, who spoke as an individual, not as an educator.

"I'd like to see the money go toward the students," she said. For
their classrooms, teachers get 50 cents a day per student.

"This is strictly my opinion, but doctors aren't supposed to give any
information out. That is supposed to be confidential," she said. "What
if an employee was on antidepressants or painkillers, or anti-anxiety
or psychotropic drugs? Teachers are just as human as any other person
out there."

Clarification on just how private information would be gathered,
relayed and responded to remains unclear, as the drafters won't have
to nail down details until June.

But that's at the heart of the problem, Perry said.

"How will we test teachers? Will they all be put in a van one day? If
they're taken out of the classrooms, will subs be provided?" he said.

But Ware said the violation of a teacher's civil rights eclipses any
ambiguity in procedural process.

"We don't even need to see the procedures to know this method is
unconstitutional," she said. "It casts a dragnet on innocent teachers,
some of whom have taught for 15, 20 years and are now caught up in the
political game without cause. That's what 'random' means - without
reason."