Education

There will be no random drug testing of Hawaii public school teachers. A battle that began in 2007 came to a quiet end earlier this month, when the state government imposed its "last, best, and final" offer to the teachers union -- an offer that does not include random drug testing.

The controversy began when the state Board of Education inserted language into the union contract saying the union and the board "shall establish a reasonable suspicion and random drug and alcohol testing procedure for teachers." The language came in the wake of a handful of widely publicized drug busts of teachers in Hawaii in previous years.

Hawaii State Teachers Association members voted to ratify the contract, but soon, teachers and the HSTA, along with civil libertarians, raised concerns about random drug testing and balked at going along with that contract provision. Gov. Linda Lingle (R) accused teachers of not acting in good faith, and the provision was stalled by challenges at the Hawaii Labor Relations Board and in state court.

The random testing provision ran into another obstacle when the Board of Education in 2008 refused to pay for the tests. The board argued that the nearly half million dollar cost could be better spent in the classroom.

Neither the board nor the union have commented publicly on the demise of the random drug testing provision, but, unsurprisingly, the ACLU is quite happy.

"The ACLU is pleased that none of Hawaii's educators has been subjected to unconstitutional random drug testing," said Daniel Gluck, senior staff attorney for the ACLU of Hawaii. "I'm fairly confident it's not going to come up again," he told the Honolulu Star-Advertiser.

While random drug testing is gone, the board and the union agreed to continue a "reasonable suspicion" drug and alcohol testing policy. Under that policy, teachers who test positive face suspensions of from five to thirty days and will be asked to resign after a third positive test result. Teachers who admit to being impaired or on drugs prior to being tested will not be suspended, but will be required to submit to drug testing for up to a year.

The dropping of the random drug testing provision is one of the few bright spots for Hawaii teachers in the new contract. They may not have to pee in a cup for no good reason, but they will have to endure wage cuts and higher health care premiums.

The ACLU and a Philadelphia law firm are suing two Pennsylvania school districts for maintaining random drug and alcohol testing of students who participate in extracurricular activities or who drive cars to school. The separate lawsuits were filed last week.

The US Supreme Court has held that the random drug testing of student athletes or students involved in extracurricular activities does not violate the US Constitution. But some state supreme courts, including Pennsylvania's, have found protections against random drug testing of students in their state constitutions.

The lawsuits filed by the ACLU of Pennsylvania and the law firm Dechert LLP charge that the school districts have maintained student drug testing policies that violate a 2003 Pennsylvania Supreme Court decision holding that random drug testing of students is unconstitutional unless the school districts can show that the group of students being tested had a high drug use rate. That case was Theodore v. Delaware Valley School District.

Delaware Valley is one of the districts named in the law suit. The other is the Panther Valley School District. Read the respective complaints here and here.

Delaware Valley, the defendant in the 2003 case, has never changed its policy, the complaint said. Instead, the district has "essentially ignored that ruling and continued to enforce the drug testing policy." The district has never attempted "to compile data that would support or refute a need for the policy" even though the Supreme Court held that any such policy "must be born out of a true and documented need for random testing of the student population affected."

The plaintiffs in the Delaware Valley lawsuit are Glenn and Kathy Kiederer and their two daughters, identified only by their initials. The Kiederers complain that when their daughters refused to sign drug testing consent forms, they were excluded from participating in athletics and extracurricular activities, ironically including joining the school's Junior Students Against Drug Abuse.

"We are very frustrated that the Delaware Valley School District has ignored the State Supreme Court's guidelines and has refused to change the drug testing policy to comply with the court opinion. We feel that the proper education for our children is to teach them to defend their constitutional rights, especially in the present times we are living in," said the Kiederers.

The Panther Valley suit was filed on behalf of high school senior Jeremy Thomas and his ninth-grade sister, identified only by her initials. According to the complaint, Thomas, an Eagle Scout and Junior ROTC member, was thrown off the school golf team after refusing to sign a consent form. He was also barred from attending the senior prom. Thomas's parents, Morgan and Donna, said in the lawsuit they refused to sign the consent form because they believe the drug testing program violates their son's right to privacy.

"These policies teach young people to accept extreme invasions of their privacy when they've done nothing wrong," said Mary Catherine Roper, senior staff attorney at the ACLU of Pennsylvania and one of the attorneys representing the students and their parents. "Random drug testing is also counterproductive, as studies have shown that extracurricular activities help students avoid drug use. Schools should not be putting up barriers to students' participation in after-school activities," she continued.

Neither school district has yet responded publicly to the lawsuits.