Legal limbo stalls teacher drug tests


POSTED: Sunday, February 01, 2009

Constitutional challenges by the teachers union and the American Civil Liberties Union could doom the state's bid to randomly drug test more than 13,000 Hawaii public school teachers.





        The state currently administers random drug testing to about 2,700 employees, according to the state Office of Collective Bargaining.

Those tested include Hawaii Government Employees Association workers who hold commercial driver licenses and hold positions of “;public trust,”; such as deputy sheriffs, conservation officers and investigators with the Attorney General's Office.


In addition, the United Public Workers agreed to random drug testing for its state workers in a two-year contract ratified in 2007. Some city workers are also tested. The union has agreed to have 1,900 city workers randomly drug tested. Also, about 2,000 Honolulu police officers and 1,100 Honolulu firefighters undergo random drug tests.


No challenge to testing UPW workers have been filed, but Daniel Gluck, senior staff attorney for the American Civil Liberties Union of Hawaii, said they are “;very concerned”; and are investigating drug testing of those employees.


The challenge by the Hawaii State Teachers Association has now spilled over into the courts, where it could take months, if not years, for a definitive court ruling in favor of the state that would pave the way for the random testing of the nation's largest group of public school educators.

The ACLU of Hawaii is also prepared to file a constitutional challenge if the state moves to randomly test teachers.

In the meantime, the two-year contract calling for the drug testing expires June 30, which some believe could render the issue moot.

Deputy Attorney General Richard Thomason acknowledged the legal process could be drawn out so long that there may never be random drug testing for the teachers.

The challengers could “;tie up the issue until it becomes moot or everybody dies of old age,”; he said.

But to the union as well as the ACLU, the issue goes beyond the union bargaining for the contract and involves the constitutional rights of the teachers.

“;We are waiting a state court ruling on the constitutionality of random drug testing of teachers and will abide by the court's decision,”; HSTA President Roger Takabayashi said in an e-mail in response to Star-Bulletin questions.

No one, however, expects a court ruling in the near future on an issue that has split federal courts around the country. For Hawaii, neither the 9th U.S. Circuit Court of Appeals nor the Hawaii Supreme Court has ruled on the constitutionality of testing teachers.

  An agreement between the union, the state and the Board of Education calling for random drug testing was ratified by the schoolteachers in 2007 as part of a two-year contract that provided for 4 percent raises each year.

The agreement said the union and the board “;shall establish a reasonable suspicion and random drug and alcohol testing procedures”; for the schoolteachers.

The contract proposal was approved by 61 percent of teachers, but 38 percent voted against it, including many who objected to the testing.

During negotiations over implementing the testing, the union obtained information from the school board that there have been no reports or incidents substantiating suspicions of drug use by teachers at the schools since 2000.

The union contended that the disclosures show that the board did not have any evidence to justify random testing of all teachers.

Without that justification, the testing would violate the state and the U.S. constitutions' provisions against “;unreasonable”; searches and seizures and subject its board of directors to money damages for violations of the teachers' constitutional rights, the union contended in files with the Hawaii Labor Relations Board and Circuit Court.

The union is not opposing suspicion-based testing involving teachers who are reasonably suspected to be using drugs. But the union contends random testing should apply only to certain categories of teachers that could be justified under the state and federal constitutions.

These include teachers who tested positive in a suspicion-based test, who have workplace-related drug convictions and who carry firearms.

The union's position outraged state officials.

State chief negotiator Marie Laderta accused the union of putting the contract to vote without intending to abide by the drug-testing terms. She called it “;a classic case of very, very bad faith bargaining.”;

State attorneys also said the categories are illusory. For example, no teacher carries firearms, Thomason said. Only a few, if any, would be subjected to random testing under the union's proposal, he said.

Negotiations over the random testing have broken off and both sides turned to the Hawaii Labor Relations Board.

  In July, the state filed a complaint alleging the union bargained in “;bad faith.”; It asks the board to order the union to negotiate in “;good faith”; to create “;a truly random drug and alcohol testing”; for the teachers.

The board has scheduled a hearing on the complaint for March 23 and 24, but any decision would be subject to appeal to the courts.

The union filed its own petition with the board the same month. It asked that the board declare that the random testing is illegal and an inappropriate topic for collective bargaining. The board dismissed the request and the union appealed the dismissal to the Circuit Court in November.

In its appeal, the union is asking the court to declare that testing all teachers goes beyond the scope of the contract and is unconstitutional.

The court case is pending before Circuit Judge Victoria Marks, and any decision by her would also be subject to an appeal to the Hawaii Intermediate Court of Appeals and the Hawaii Supreme Court.

  Meanwhile, Daniel Gluck, senior staff attorney for ACLU of Hawaii, said several hundred teachers have contacted the organization and ACLU is prepared to file a challenge if the state moves to implement the random testing.

“;We believe random drug testing of teachers is ineffective, expensive and unconstitutional,”; he said.

One key issue is whether the random testing provision would still be valid after the contract expires.

Jon Van Dyke, University of Hawaii constitutional law school professor, said because the state's power to undertake the tests is based on the contract, it would “;disappear”; once the contract expires.

State attorneys are researching the issue.

Thomason said they've entered “;uncharted waters.”;

“;It's very unusual to have a union say, 'What agreement? We never agreed to that,' when there's so much out there well-documented (to support they agreed to the random testing),”; he said.

Thomason said the state has not requested that the teachers give up their raises under the contract. “;We're not at that stage yet,”; he said.

  Another issue in the case is whether the union can bind its membership to the random drug testing and whether the teachers gave up their right to challenge the testing. State attorneys believe that by ratifying the contract, the teachers constitutionally agreed to the testing.

The union and the ACLU disagree. “;The government cannot bribe or coerce its employees or bribe its employees into giving up their constitutional rights,”; Gluck said. “;You cannot allow the majority to override its members' protected interests.”;

Laderta said talks for a new contract with the teachers have opened, but neither she nor Takabayashi will say whether drug testing is a topic because of the confidentiality of the negotiations.

But with the economic downturn and Gov. Linda Lingle's call in her State of the State address Tuesday for reduced wage and benefits for government employees, the focus may be on those issues rather than the state trying to seek another drug test provision, especially with the issue tied up before the labor board and courts.

Even some teachers who voted for the current contract aren't in favor of drug testing.

Lisa Man, 33, a Farrington High School teacher, said she voted for the contract thinking that all teachers would be tested but supports the union's efforts in trying to protect her rights.

Man said she doesn't use illegal drugs.

“;We agreed to drug testing without knowing the nitty-gritty of it,”; she said. “;I guess we voted without having full knowledge of what was going on.”;

Now that the details have emerged, she said random drug testing is not necessary.

“;It's not like we drive buses or fly planes,”; she said.