FIRST THE ELECTION, THEN THE DRUG TEST

Lac du Flambeau Board Sets A First With Policy

While many school districts now require athletes and some employees to
submit to drug tests, a northern Wisconsin district has become the first in
the state to subject school board members to the same scrutiny.

The Lac du Flambeau School Board, in Vilas County, has approved a policy
that says board members cannot hold office unless they pass an annual drug
test.

Under the rule, members must submit to an annual hair sample drug test. If
they fail the test, the policy says, board members "will not be allowed to
hold office."

The policy is the only one of its kind in the state, said Ken Cole,
executive director of the Wisconsin Association of School Boards.

"Who does this besides them? Nobody. If somebody else had done it, we would
know," he said.

Trying To Be Fair

School Board member Mike Zimmerman, who proposed the policy, said its
intent is to create a sense of fairness in a community in which many tribal
organizations and several businesses already require drug testing.

"We've got the casino in town that is fully drug-tested. Simpson Electric,
the tribal building - all the employees there are (tested). There were a
number of people in the town who thought the school should be tested, too,"
Zimmerman explained.

He also wanted to send a message about the board's anti-drug stance. "It
was done to be straightforward, and to just try and get people to go along
with the idea of having a drug-free school," he said. "We're supposed to be
the bosses, so we should set the example. Shouldn't we?"

In addition to being unusual, the district's policy may also be
unconstitutional, civil rights attorneys say.

"Usually, drug testing relates to people who hold jobs that may somehow
relate to public safety," said James H. Hall Jr., an attorney on the board
of the American Civil Liberties Union of Wisconsin.

Firefighters, police officers, those operating heavy machinery, even
students and athletes have been subjected to drug tests in recent years,
Hall said. Until now, school board members have been absent from that list.

"I'm not aware of a constitutional standard that would support the
imposition of drug testing as a requirement of serving on the school
board," he said. "I think the spirit behind it probably has some value, but
this has never been a qualification for elected officials and is not likely
to be soon because there are too many peripheral issues.

"It's just like saying you have to tell us if you have a heart condition
before we elect you. None of those things disqualify them."

Privacy Concerns

Topping Hall's list of concerns is whether the rule violates board members'
rights to privacy and confidentiality.

Those who undergo testing must disclose what other medications they may be
on because prescription drugs can skew results of tests meant to detect
illegal drugs.

Having knowledge of such private information disturbs Lac du Flambeau
School District Superintendent Richard Vought.

"Should I know what drugs you're taking? If you're taking Prozac, should I
know that? Should I know if a man is taking Viagra?" Vought asked.

Hall and Cole said enforcing the rule may also be a problem.

"Anyone can say, 'I'm going to submit myself to a drug test.' What would
happen if they didn't take it? Nothing, apparently. What would be their
basis for forcing a person to take the test? They don't have one. There's a
hole there," Cole said.

But Zimmerman says he doesn't see the policy as unconstitutional or
difficult to enforce.

If board members refuse to submit to testing, Zimmerman said they would be
in violation of the district's existing drug-testing policy.

Since 1994, new full-time employees have had to undergo a one-time drug
test before being hired. There are no drug tests for part-time or current
full-time employees because of contractual issues, district officials said.

Whether elected officials are legally considered employees, and whether
annual testing would be allowed under the one-time test provision in the
district's current policy, could be open to debate, Hall said.

High Court Ruling

Karyn Rotker, also an attorney with the Wisconsin ACLU, said answering such
questions may be unnecessary in this case. The U.S. Supreme Court may have
already settled the matter.

The court overturned a Georgia law requiring candidates for office to show
they took and passed a drug test in order to participate in the election,
court records show. The law violated the Fourth Amendment, the court said.

According to the ACLU, a Louisiana law requiring drug testing for all
elected officials was also declared unconstitutional.

Zimmerman said that until the rule is challenged, in his eyes, the policy
stands.

Zimmerman said he is unsure whether the policy, which was unanimously
approved last month, will be challenged. But, he said, "We'll cross that
bridge when we come to it."