Pubdate: Fri, 12 Sep 2008
Source: Honolulu Advertiser (HI)
Copyright: 2008 The Honolulu Advertiser,
Contact: http://drugsense.org/url/uXtrz8Lm
Website: http://www.honoluluadvertiser.com/
Details: http://www.mapinc.org/media/195
Author: Richard S. Miller
Note: Richard S. Miller, is professor of law emeritus and former dean 
of the William S. Richardson School of Law. The views expressed here 
are his personal opinions and not necessarily those of the School of 
Law or the University of Hawai'i. He wrote this commentary for The Advertiser.
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

TEACHER DRUG TESTING A THREAT TO BASIC RIGHTS

Lingle Plan A Cynical Strategy To Win Points, Embarrass BOE, HSTA

Contrary to some misguided commentators, Gov. Linda Lingle's attempt 
to saddle our public school teachers with random drug testing is an 
overtly cynical strategy, designed to win political points by 
embarrassing the Hawaii State Teachers Association and Board of 
Education and at the expense of hardworking educators' fundamental rights.

Such testing would do nothing to make our students any safer, but 
would most certainly deprive them of further critical services and 
supplies and leave taxpayers footing the bill.

Remarkably, Gov. Lingle appears to have relished placing our 
dedicated teachers and, particularly, their union between a rock and 
a hard place. It is no secret that, like many of us, teachers 
struggle with Hawai'i's cost of living - about 30 percent more than 
the Mainland. While the raises offered to entice our teachers toward 
random drug testing were not too substantial - 4 percent per year for 
two years - many teachers simply could not afford to turn them down. 
This placed the HSTA in the untenable position of having to accept 
random drug testing in violation of teachers' constitutional rights 
or give up sorely needed raises.

The teachers, in weighing whether to ratify the contract, confronted 
the same nasty dilemma. Their response, however, has been 
mischaracterized in the public debate. Of the 13,404 educators 
eligible to vote, only 8,449 cast ballots. While a majority of voting 
members (5,176) ratified the proposed contract, these "yes" votes 
constitute a minority - 43 percent - of eligible votes. In no way did 
the majority of HSTA members consent to relinquish their rights and 
accept random drug testing: 57 percent either voted against the 
contract or did not vote at all.

The governor's draconian attempt to deprive teachers of their basic 
rights through random drug testing might be justified if it would 
increase student safety or, perhaps, if it did not violate both the 
U.S. and Hawai'i constitutions. However, it fails on both accounts. 
There is simply no reason to think that Hawai'i's teachers ever have 
or would imperil students through drug involvement. When HSTA asked 
the BOE to "describe any incidents, occurrences, or reports 
substantiating suspicions held by the BOE of illegal use by teachers 
of illicit drugs or alcohol at the workplace from January 1, 2000, to 
the present," the board answered that there were none.

Hawai'i's teachers are highly dedicated to the advancement and 
well-being of their students and among the least likely to be 
involved with drugs. Our teachers are under near constant observation 
from both students and their fellow educators and administrators. 
Thus, any association with drugs would be readily observed and 
addressed. The teachers and their union have no objection whatsoever 
to a policy of drug testing based on reasonable suspicion, which is 
constitutional.

Hawai'i courts have held that the Hawai'i and U.S. constitutions may 
permit random drug testing of police officers and firefighters where 
drug abuse clearly threatens both their fellow employees and public 
safety. Other danger-fraught situations where such testing may be 
upheld include airline pilots and nuclear power plant operators. No 
court has ever approved a policy of random drug testing for all 
teachers and, in fact, no other state in the nation has ever even 
attempted such a rash step.

The HSTA is rightly seeking a declaration from the Board of Education 
that random drug testing of our public school teachers is not 
required. The ACLU stands ready to bring a lawsuit against the state 
should random teacher testing ever move forward. While the ACLU 
should easily prevail in this lawsuit, it is also likely that the 
case will, nonetheless, consume significant state resources at a time 
of increasingly strained budgets.

Though the governor's random-drug-testing ploy may inevitably be shot 
down in the courtroom, it should just as clearly be rejected because 
of its impact in the classroom. Imposing costly requirements for 
random drug testing on a school system struggling to fund 
infrastructure and essential programs is ludicrous. Gov. Lingle's 
cynicism is evident by her unwillingness to fund this pet project. 
All of us, and especially our governor, should put the best interests 
of Hawai'i's students first.
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MAP posted-by: Jay Bergstrom