Drug Testing: Hawaii Teachers Back Away from Random Testing Provisions of New Contract

The Hawaii State Teachers Association (HSTA) and the administration of Republican Gov. Linda Lingle are locked in battle over whether the teachers will honor provisions of a contract signed last year that requires random drug testing of teachers. Although the union membership approved the contract in a vote last year, the union is now balking at what it says are constitutionally questionable drug testing provisions.

Under the contract, which teachers agreed to in June 2007, random drug testing of the state's 13,500 teachers was to have begun by June 30. That didn't happen. The HSTA first balked at the cost of the program -- estimated at $500,000 a year -- then, when presented with a less ambitious plan that would subject one or two percent of teachers to random drug tests each year instead of the 25% originally envisioned, said it now objected to random drug testing of teachers.

HSTA officials said last week that they had not understood the legal issues surrounding random drug testing when they negotiated the contract last year. "Today, both parties know much more about the legal issues surrounding drug testing that were not known at the time of the initial agreement," said HSTA executive director Mike McCartney in a July 17 letter to Department of Education superintendent Pat Hamamoto. "We cannot knowingly agree to procedures that violate the state and federal constitutions. Any agreement of this type would subject the state and all of us to unnecessary litigation," McCartney wrote.

The Lingle admistration called foul, with Gov. Lingle herself issuing a statement the next day saying: "HSTA leaders have made a mockery of the collective bargaining process."

That same day, the state filed a complaint against the HSTA with the Hawaii Labor Relations Board. But the HSTA wasn't backing down.

This week, HSTA head Roger Takabayashi suggested a compromise: The union would not object to "random" testing of certain groups of teachers, perhaps those who had a pattern of absences of DUI convictions, he said.

"You can randomly test pools of people if you have reason to test them," said Takabayashi told the Honolulu Advertiser this week. "But if you take 100 people and you test them for no reason at all, then that would be against each individual's constitutional rights."

"They're trying to redefine what random is," complained Jim Halvorson, state deputy attorney general. "The problem with what they are saying is that it doesn't comply with the contract," said Halvorson. "The contract provision says all teachers."

But Takabayashi said the union has been advised by its lawyers that random drug testing of all teachers would violate the Fourth Amendment's proscription on warrantless searches and seizures. "We want to make sure that whatever method is agreed to, it can withstand the constitutional challenge we know we're going to get," Takabayashi said. "For example... we're proposing testing those who have excessive absences. Or maybe those caught for DUI. What I'm telling you is that there needs to be reason for putting them in a pool to be tested. Not just everyone in general."

Hawaii's teachers got themselves into this mess by agreeing to a contract with random drug testing in the first place. Now, the battle is on to see if they can get out of the agreement they signed.