Task force explores
drug testing

State lawmakers look at the
constitutional issues for students

When the U.S. Navy thought too many aircraft were crashing into carrier decks during the late 1970s, it instituted mandatory drug testing and found almost 50 percent of those tested were positive for marijuana, according to Carl Linden, scientific director of toxicology for Diagnostic Services Inc. in Honolulu.

Between 1981 and 1986, Linden said, the Navy enforced mandatory, random drug testing on ships and drug use dropped to a few percentage points.

"In the Navy, drug testing was a powerful deterrent to using marijuana," said Linden, testifying yesterday before the Legislature's Joint House-Senate Task Force on Ice and Drug Abatement.

The task force examined the issue of drug testing in schools. Speakers covered constitutional rights, scientific research and educational philosophies.

The task force has been holding informational hearings for months on various aspects of the crystal methamphetamine problem with the goal of drawing up a package of bills, on areas including treatment and changes in search and seizure laws, to present when the Legislature convenes in January.

Advocates like Linden argue that testing will deter some students from using drugs and, when handled in a non-punitive manner, will get treatment for students who need it.

But Linden also acknowledged that individual rights in the military are different than those expected of high school students. The safety and security issues are also different.

Opponents argue that drug testing is a waste of money that that will not deter students and will send a message that students are not trusted. Several quoted a recent University of Michigan study that concluded drug testing does not prevent or inhibit student drug use.

Opponents also argued drug testing will alienate students from school and extracurricular activities that, ironically, were designed to keep them away from drugs.

"The overarching issue is student privacy," said drug-testing opponent Pamela Lichty of the Hawaii Drug Policy Forum. "Drug testing tells them they aren't trusted and they have no rights."

Lichty said drug testing will make students distrust teachers and school administrators, causing youths to shun the people who can help them.

Lichty said national studies show that drug testing isn't a deterrent and that the kids who really need help will find ways to outsmart the drug tests.

Lichty proposed money be used instead to hire a full-time counselor for each school, who can address personal or family-drug issues. Rather than testing, she said, schools should rely on monitoring students for attendance lapses, slips in academic performance and behavior in school to spot students in trouble and get them treatment.

Harvey Lee of the Pacific Comprehensive Regional Assistance Center said some schools on the mainland have discarded mandatory drug testing. He said some found that it was ineffective in curbing the drug problem and that the costs of drug testing outweighed the benefits and diverted money from drug prevention programs.

Jon Van Dyke, a professor at the William S. Richardson School of Law at the University of Hawaii, discussed drug testing as a state and federal constitutional issue.

"It's a question of whether you give up the rights of all to deal with the abuses of some," said Van Dyke.

He noted that both the U.S. and Hawaii constitutions give individual privacy rights to students that could be used to challenge drug testing in Hawaii schools. Van Dyke said states such as Colorado and Pennsylvania have ruled "suspicionless drug testing of students is unconstitutional."

Van Dyke told the task force that two Iowa schoolchildren established that minors have constitutional rights when they won the right to wear black armbands to school to protest the Vietnam War in a 1969 U.S. Supreme Court case.

But Van Dyke said subsequent cases have laid some foundation for drug testing. In a 1985 New Jersey case, the U.S. Supreme Court found that school officials may search a student if they have "reasonable suspicion" the search will produce evidence they have violated a law or school rule.

Further supporting drug-testing, the U.S. Supreme Court upheld urine testing of students on high school athletic teams in 1995 and then upheld testing students in any extracurricular activity in 2002.

Van Dyke told the task force that while federal decisions have upheld drug testing, the Hawaii Constitution has a stricter view of the individual right to privacy.

Van Dyke said that as a result of amendments made by the 1978 Constitutional Convention, privacy is "treated as a fundamental right subject to interference only when a compelling state interest is demonstrated."


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