POSTED: 01:30 a.m. HST, Jul 14, 2011
LAST UPDATED: 02:23 p.m. HST, Aug 05, 2011
The state Department of Education and its teachers union have sparred for years over drug testing of faculty but may have finally resolved the issue as part of a contract proposal — even as that imposed contract is under dispute due to wider disagreement. While the union has not commented on the drug-testing proposal, the compromise should satisfy its concerns and be adopted as part of an ultimate contract to be ratified by teachers.
The Hawaii State Teachers Association agreed with the state four years ago on a contract that called for creation of "a reasonable suspicion and random drug and alcohol testing procedures" for the teachers. Random testing of teachers was nationally unprecedented. Although the contract was ratified by 61 percent of teachers, constitutional issues over random testing remained.
HSTA agreed to work with the Department of Education to develop a random and alcohol testing program, but the union has contended that random testing be limited to certain categories of teachers that could be justified under the state and federal constitutions. The union cannot ignore the constitutional rights of individual members, even though the contract was approved by the majority.
The issue has been set aside not only by the constitutional question but by the expense of random testing during the economy downturn. The state Board of Education shelved the policy in 2008 so it could spend in the classroom the $455,000 projected for random drug testing.
The U.S. Supreme Court has approved random testing of government employees in circumstances involving "special needs," such as railroad employees involved in accidents or suspected of drug use and federal customs employees engaged in drug enforcement. The issue is whether "special needs" for random searches should be applied to school employees, and such a court battle could go on for years.
Neither the 9th U.S. Court of Appeals, which includes Hawaii in its jurisdiction, nor the Hawaii Supreme Court has ruled on the constitutionality of randomly testing teachers for drugs or alcohol. A deputy attorney general in the previous Lingle administration remarked that a legal challenge could "tie up the issue until it becomes moot or everybody dies of old age."
Now, at long last, comes an agreeable drug-testing procedure outlined in both Department of Education policy and the HSTA contract. The teachers union has agreed to drug and alcohol tests of teachers based on "reasonable suspicion" — a notch below probable cause — to hold an "impairment interview" of a teacher. A teacher's rejection of such an interview would result in discharge. A teacher who fails one test or more would face suspension and ultimately dismissal. Admission of having been under the influence of illicit drugs or alcohol would trigger random testing for up to a year.
Past drug arrests of public school teachers and other DOE employees justify a program that has the support of both the department and the union. Cooperation in such an effort should be more effective — and less costly — than random testing embroiled in controversy.