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Courts confront issue of tests' constitutionality


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POSTED: Sunday, February 01, 2009

Federal courts around the country have been split on whether drug testing of public school teachers is constitutional. In Hawaii, the state Supreme Court has yet to rule on the issue.

The U.S. Constitution's Fourth Amendment, which prohibits “;unreasonable searches and seizures,”; is the basis for the constitutional challenges, but federal courts disagree whether the government has a “;special interest”; or legitimate basis for subjecting public employees to the tests.

Federal courts have upheld testing for safety reasons for government workers including airline pilots, correctional officers, police officers and nuclear plant engineers.

The U.S. Supreme Court has not ruled on drug testing for teachers, but has upheld drug tests for federal railroad employees who as a group have a history of drug or alcohol use and U.S. Custom Service agents who carry firearms or who work on drug-interdiction programs.

The court also upheld drug testing for student athletes to prevent them from harming their bodies with drugs and harming others on the playing field while under the influence of drugs.

But the court struck down a Georgia law that required political candidates for some state offices to undergo tests.

Lower federal courts have disagreed on whether teachers can be tested without a reasonable suspicion that they are using drugs.

A 1998 decision by the 6th U.S. Circuit Court of Appeals upheld drug testing for teachers in Knox County, Ky. The U.S. Supreme Court declined to review the ruling.

But drug-testing opponents hail a decision on Jan. 8 by U.S. District Judge Joseph Goodwin, who struck down an attempt by the Kanawha County Board of Education in West Virginia to randomly test its teachers.

He ruled the school board could not produce any evidence justify the intrusion of the teachers' privacy.

The decisions by the 6th Circuit and Goodwin are not binding on federal judges here in the 9th Circuit. The 9th U.S. Circuit Court of Appeals is considered the most liberal in the country, but it has not ruled on teacher drug testing.

The Hawaii State Teachers Association and the American Civil Liberties Union of Hawaii could also trump the testing with a ruling by the Hawaii Supreme Court, which has a reputation of expanding the rights of the public under the Hawaii Constitution beyond the federal courts' interpretation of the U.S. Constitution.

Hawaii's Constitution prohibits “;unreasonable searches, seizures and invasions of privacy.”;

Although experts disagree, one believes the Hawaii Supreme Court will strike down any random testing of teachers.

Jon Van Dyke, University of Hawaii constitutional law school professor, said Hawaii added a right to privacy amendment to the constitution in 1978.

The provision says: “;The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest.”;

“;I believe our courts would interpret this provision to protect the privacy rights of teachers from suspicionless drug testing,”; Van Dyke said.