TASK FORCE EXPLORES DRUG TESTING

State Lawmakers Look At The Constitutional Issues For Students

When the U.S. Navy thought too many aircraft were crashing into carrier decks
during the late 1970s, it instituted mandatory drug testing and found almost 50
percent of those tested were positive for marijuana, according to Carl Linden,
scientific director of toxicology for Diagnostic Services Inc. in Honolulu.

Between 1981 and 1986, Linden said, the Navy enforced mandatory, random drug
testing on ships and drug use dropped to a few percentage points.

"In the Navy, drug testing was a powerful deterrent to using marijuana," said
Linden, testifying yesterday before the Legislature's Joint House-Senate Task
Force on Ice and Drug Abatement.

The task force examined the issue of drug testing in schools. Speakers covered
constitutional rights, scientific research and educational philosophies.

The task force has been holding informational hearings for months on various
aspects of the crystal methamphetamine problem with the goal of drawing up a
package of bills, on areas including treatment and changes in search and
seizure laws, to present when the Legislature convenes in January.

Advocates like Linden argue that testing will deter some students from using
drugs and, when handled in a non-punitive manner, will get treatment for
students who need it.

But Linden also acknowledged that individual rights in the military are
different than those expected of high school students. The safety and security
issues are also different.

Opponents argue that drug testing is a waste of money that that will not deter
students and will send a message that students are not trusted. Several quoted
a recent University of Michigan study that concluded drug testing does not
prevent or inhibit student drug use.

Opponents also argued drug testing will alienate students from school and
extracurricular activities that, ironically, were designed to keep them away
from drugs.

"The overarching issue is student privacy," said drug-testing opponent Pamela
Lichty of the Hawaii Drug Policy Forum. "Drug testing tells them they aren't
trusted and they have no rights."

Lichty said drug testing will make students distrust teachers and school
administrators, causing youths to shun the people who can help them.

Lichty said national studies show that drug testing isn't a deterrent and that
the kids who really need help will find ways to outsmart the drug tests.

Lichty proposed money be used instead to hire a full-time counselor for each
school, who can address personal or family-drug issues. Rather than testing,
she said, schools should rely on monitoring students for attendance lapses,
slips in academic performance and behavior in school to spot students in
trouble and get them treatment.

Harvey Lee of the Pacific Comprehensive Regional Assistance Center said some
schools on the mainland have discarded mandatory drug testing. He said some
found that it was ineffective in curbing the drug problem and that the costs of
drug testing outweighed the benefits and diverted money from drug prevention
programs.

Jon Van Dyke, a professor at the William S. Richardson School of Law at the
University of Hawaii, discussed drug testing as a state and federal
constitutional issue.

"It's a question of whether you give up the rights of all to deal with the
abuses of some," said Van Dyke.

He noted that both the U.S. and Hawaii constitutions give individual privacy
rights to students that could be used to challenge drug testing in Hawaii
schools. Van Dyke said states such as Colorado and Pennsylvania have ruled
"suspicionless drug testing of students is unconstitutional."

Van Dyke told the task force that two Iowa schoolchildren established that
minors have constitutional rights when they won the right to wear black
armbands to school to protest the Vietnam War in a 1969 U.S. Supreme Court
case.

But Van Dyke said subsequent cases have laid some foundation for drug testing.
In a 1985 New Jersey case, the U.S. Supreme Court found that school officials
may search a student if they have "reasonable suspicion" the search will
produce evidence they have violated a law or school rule.

Further supporting drug-testing, the U.S. Supreme Court upheld urine testing of
students on high school athletic teams in 1995 and then upheld testing students
in any extracurricular activity in 2002.

Van Dyke told the task force that while federal decisions have upheld drug
testing, the Hawaii Constitution has a stricter view of the individual right to
privacy.

Van Dyke said that as a result of amendments made by the 1978 Constitutional
Convention, privacy is "treated as a fundamental right subject to interference
only when a compelling state interest is demonstrated."