DRUG ISSUE REMAINS A HIGH PRIORITY

Debate Continues As To Whether, How To Enact Random Drug Testing
Policy

Depending on how next week's Lewiston-Porter School Board election
goes, the district might soon thereafter enter the national debate on
the legality of randomly drug testing school employees.

Much debate surrounded the board's vote in March not to enact a
random testing policy in the district -- a motion that some board
members called a knee-jerk reaction but prompted at least a couple
candidates to run. Whether it be through lobbying to Albany or
putting the matter up for legal challenge, the new board may look to
push the issue after members are sworn in over the summer.

Drug testing became an issue in Lew-Port after the events surrounding
Joan Donatelli, the longtime elementary teacher there who was caught
using cocaine in a classroom in which she served as a substitute this
past winter. Donatelli has since pleaded guilty to seventh-degree
attempted criminal possession of a controlled substance and faces up
to 60 days in jail when she's sentenced in the next few months.

A main issue in the debate is whether random testing violates the
Fourth Amendment rights of the affected people not to be subjected to
illegal search and seizure. Testing is now allowed in Lew-Port if
there is reasonable suspicion of a person using drugs or alcohol,
board President Dave Schaubert said in March.

Attorney Karl Kristoff wrote in a legal opinion that the board only
possess powers given to it by state education law. Since there's no
provision granting the board authority to test, he wrote, the
proposal wouldn't be legal. He also wrote that testing could only
take place if there was reasonable suspicion.

Several other court rulings have confirmed that random testing of
teachers is not permissible, said David Ernst of the New York State
School Board Association.

"We can demand a test based (only) on individualized symptoms," he
said. "On this, we got pretty clear guidance from the courts."

But legal precedent from outside the state gives those who want to
enact a policy some hope. In 1998, the federal Sixth Circuit Court of
Appeals ruled that the board of education in Knox County, Ky., could
uphold a drug testing policy it had enacted that called for
one-time, suspicionless drug testing of teachers and other public
school employees in "safety-sensitive" positions -- including
teachers, administrators, bus drivers and other district employees.

The court's ruling said that suspicionless testing is reasonable
because of the public interest in safe schools and that employees in
heavily regulated areas like schools have a lower expectation of privacy.

More recently, the Northampton Area School District in Pennsylvania
may require random testing of employees after a principal there
allegedly possessed and sold crystal methamphetamine, The Morning
Call of Allentown, Pa., reported in April. The Hawaii State Teachers
Association, meanwhile, voted last week to approve a new contract
that includes a mandate for both suspicion-based and random testing
of educators, the Honolulu Star-Bulletin reported.

Ernst couldn't say whether outside rulings could influence New York
law. The only way to know would be for a district to institute a
random testing policy and then have someone challenge it, he said,
and wait for the judge's ruling.

That would be just fine with candidate Jim Sperduti, who wrote in an
e-mail that he would vote for a testing policy for new employees
similar to what's used in the Niagara Falls School District, which
makes a drug test a prerequisite for being hired (Schaubert said in
March that this rule has never been legally challenged, while both
Falls teachers union President Joe Catalano and school district
attorney Angelo Massaro stand behind it). After that, he would work
on a more comprehensive policy.

"I would at first try to work within the system to then implement
testing for the entire district," he wrote. "If that failed, I would
move forward with a system based on successful programs implemented
in other states that have withstood court challenges."

Candidate Ed Waller would back similar moves. While he would like to
see action from local legislators in Albany to alter the law, he
feels a legal ruling might be the only way to ensure that something's
done; Assemblywoman Francine DelMonte, D-Lewiston, said Thursday no
one from the district has been in contact with her concerning
legislation on the matter.

"It's an opportunity for Lew-Port to take on a leadership role in a
regional, state and national battle," he said.

Waller noted that he would first seek a legal opinion as to the
likelihood of a challenge to any drug testing policy standing up in
the Second Circuit Court of Appeals (which covers New York state), as
well as get feedback whether residents support moving forward on the
matter.

Candidate Keith Fox, while in favor of testing new hires, is against
enacting random testing without changes being made to the law.
Candidate Bob Weller, meanwhile, has proposed instituting a voluntary
testing initiative as a first step toward getting a more
comprehensive system in place. Fox has concerns about this, though,
saying it singles out people who -- for reasons other than doing
drugs -- refuse to take the test.

"What would that conclusion be?" he wrote in an e-mail. "I believe it
would be guilty as charged. Very unfair."

Weller did not respond to an e-mail seeking further
comment.

Candidate Mike Gentile agrees with Fox that enacting a random testing
policy is a bad idea.

" ... any board member who votes in favor of any item that he/she
knows is unlawful or unconstitutional and would subject the district
to certain litigation is knowingly subjecting the district to
liability and wasting taxpayer funds, and should be subject to
removal," he wrote in an e-mail.

Saying he is in favor of pre-employment testing, Gentile would like
to undertake more research before moving further on the issue.

The cost of litigation is a potential barrier, but Sperduti and
Waller said it would be worth it to ensure students' safety. Some of
that cost might be defrayed, Waller said, by an attorney who might
take the case pro bono, knowing the exposure the case would bring.

The five candidates are competing for three open seats. The school
board and budget vote take place Tuesday.