HAWAII TEACHERS FACE RANDOM DRUG TESTS

The Hawaii State Teachers Association has ratified a new contract
that will require its members to undergo random drug and alcohol
testing--a requirement unusual for public school teachers--as the
price for receiving a 4 percent salary increase each year over the
next two years.

The plan was tentatively approved on April 20 by the state and by
leaders of the 13,000-member union, and was endorsed by 61.3 percent
of members who took part in a ratification vote, the results of which
were announced May 2.

According to the contract, the union and the state education
department will work together to develop the drug-testing program,
which must be in place by the end of June 2008. The testing would be
conducted by an independent lab, and principals would not be allowed
to choose who is tested or see the results.

Greg Knudsen, a spokesman for the 181,000-student statewide district,
said that even though the department was already working with the
union to develop a "reasonable suspicion" drug testing policy, that
doesn't imply that officials think drug abuse is a widespread problem
among teachers.

"The department didn't initiate it," he said about the random testing proposal.

United Public Workers, a separate 12,000-member union in the state
that includes school cafeteria workers and custodians, had already
ratified a contract that includes a random drug testing provision.

But Roger Takabayashi, the president of HSTA, said his members "feel
disrespected" by the way in which the testing provision was tied to
the pay raise, which brings a starting teacher's salary in the state
to $43,157 a year, from $39,901.

"It was a tremendous blow," he said. "It's really a slap in the face."

Legal Questions

Observers said they would not be surprised if the new program ends up in court.

"I think this is a lawsuit waiting to happen," said Julia Koppich, a
San Francisco-based author and expert on teacher's unions. "Someone
is going to say 'You don't get to drug test me without probable cause.' "

Drug testing of student athletes and students involved in other
extracurricular activities has been upheld by the U.S. Supreme Court.
The court has never ruled directly on a policy calling for the random
testing of teachers. Such a policy is unusual, though not unprecedented.

For government employees in general, the Supreme Court has upheld
so-called suspicionless drug tests in cases in which there is a
"special need" for safety that overrides an individual's Fourth
Amendment protections against unreasonable searches. In a pair of
1989 cases involving railroad employees and customs agents working in
the area of drug interdiction, the court said that the public's
safety qualified as a special need.

Proponents of random tests for educators say that teachers are
responsible for the safety of children while those children are at
school, therefore playing a unique role that meets the standard of a
"special need."

But, according to Graham Boyd, the director of the American Civil
Liberties Union's Drug Law Reform Project, "the case law in this area
is divided."

In a 1998 case involving the New Orleans school district, the U.S.
Court of Appeals for the 5th Circuit, in New Orleans, struck down a
policy requiring urinalysis of any district employee injured on the job.

That same year, the U.S. Court of Appeals for the 6th Circuit, in
Cincinnati, upheld random drug testing in the Knox County, Tenn.,
district's policy requiring drug testing of anyone who applied for,
transferred into, or was promoted to "safety sensitive" positions
within the school system. This included teaching positions.

The 6th Circuit court's decision stated, "We can imagine few
governmental interests more important to a community than that of
insuring the safety and security of its children while they are
entrusted to the care of teachers and administrators."

In 1999, the Supreme Court declined to hear a teachers' union's
appeal of that decision.

Incidents Cited

When drug or alcohol tests are conducted on teachers, they are more
likely to be required of job applicants, rather than existing
employees, when suspicion is present, or when there is already
evidence of a past drug problem. For example, in Kentucky, a teacher
who has been disciplined for illegal drug use has to submit to random
testing for up to a year in order to remain employed.

Lisa E. Soronen, a staff lawyer with the Alexandria, Va.-based
National School Boards Association, said most proposals to conduct
random drug testing seem to follow specific incidents of drug arrests
among teachers or other school employees.

"Everyone loves the idea of holding teachers accountable," she said.

The provision in the Hawaii union contract--as well as a separate
bill in the state legislature that would also require random drug
tests of teachers, other public school employees, and public library
employees--comes after a string of recent arrests on drug charges of
employees of the statewide school district.

Last fall, a high school teacher was arrested on charges of selling
crystal methamphetamine. In December, two middle school teachers were
arrested for allegedly smoking marijuana before beginning work on a
Monday morning. In February, an elementary resource teacher was
charged with conspiracy to distribute drugs.

The drug testing of public school employees--and government employees
in general--raises serious privacy issues, said Roger Pilon, the vice
president for legal affairs at the Cato Institute, a libertarian
think tank in Washington.

"This is one more example of the war on drugs stretching out to
encompass all aspects of education," he said. "What this says about
the relationship between the individual and government is that there
is a presumption of guilt at some level, such that the person must
prove his innocence."

Mr. Pilon argues that the fact that teachers are standing in for the
parents of schoolchildren doesn't amount to sufficient risk for
testing to be required.

"Then why not test the parents?" he asked.