Teachers’ drug tests limited

The state abandoned an effort to implement random drug testing for Hawaii’s public school teachers in its "last, best and final" offer imposed July 1.

But the new terms do spell out, for the first time, the penalties for teachers who fail alcohol or drug impairment tests conducted under a "reasonable suspicion" policy.

According to the state’s imposed offer, which also includes wage reductions and higher health care premiums, teachers face suspensions of five to 30 days for positive tests, and will be asked to voluntarily resign after a third positive.

Teachers who admit to being impaired before an observation test won’t face a suspension, but will be required to submit to testing for up to a year.

The Department of Education has had a "reasonable suspicion" policy for teacher drug and alcohol testing since 2007, the same year the union agreed to random drug testing.

But the procedures the DOE can take in the event of failed tests were never outlined in the teacher contract.

The DOE would not comment on the new policy, and said statistics were not immediately available on how many teachers had tested positive for alcohol or drugs in recent years.

There also wasn’t information on the previous penalties for failed tests, since they varied.

Hawaii State Teachers Association officials also would not comment.

The state’s "last, best" offer, whose terms were publicly released this week, does leave the door open to drug testing changes in the future, saying the state and union will review the drug and alcohol testing program when negotiations for the 2013-15 contract begin.

But onlookers say that’s unlikely, which means it’s almost certain the contract offer brings to an end a years-long debate between the state and HSTA over whether teachers should be randomly tested for drugs or alcohol.

Daniel Gluck, senior staff attorney at the American Civil Liberties Union of Hawaii, which staunchly opposed random drug testing for teachers, said that he’s "fairly confident that it’s not going to come up again."

He added, "The ACLU is pleased that none of Hawaii’s educators has been subjected to unconstitutional random drug testing."

The issue of testing first arose in 2007, when Hawaii State Teachers Association members ratified a two-year contract that included a first-in-the-nation statewide random drug testing policy in exchange for 4 percent raises each year.

The agreement said the union and the state Board of Education "shall establish a reasonable suspicion and random drug and alcohol testing procedures for teachers."

But quickly, teachers and the HSTA raised concerns about random drug testing, drawing the ire of the Lingle administration, which accused the union of not bargaining in good faith.

Since then the issue of random drug testing has been embroiled in controversy — and legal wrangling, with complaints before the Hawaii Labor Relations Board and state Circuit Court.

Proponents of random drug testing point to several high-profile drug abuse and trafficking cases involving teachers. But critics say it’s an unwarranted invasion of privacy and unconstitutional.

Random drug testing for teachers has also been a hot-button issue nationally, and has been struck down by several mainland courts.

Shortly after the union agreed to it, the state’s random-testing policy hit a big snag, when the Board of Education refused in 2008 to pay for random testing, saying the $455,000 would be better spent in the classrooms.

Later, the HSTA and state filed dueling complaints with the Hawaii Labor Relations Board.

And in Circuit Court the HSTA sought a ruling on the constitutionality of random drug testing.

None of those legal challenges went anywhere, and the court threw out HSTA’s question, saying any decision would be premature because no testing was taking place.

In HSTA’s two-year contract that expired June 30, the state and union agreed to continue the reasonable-suspicion testing policy but steer clear of random drug testing until the courts ruled it was "constitutionally permissible."

Under the "testing procedures" in the state’s imposed contract for teachers, a supervisor can call a teacher in if impairment is suspected. When a "positive determination" of impairment is made, in front of a witness, the teacher is escorted to a testing site.

Teachers who refuse to be tested "shall be discharged."

A positive test for a first offense carries a punishment of five days’ suspension for alcohol impairment and 15 days for drugs. A second positive test results in a 15-day suspension for alcohol and a 30-day suspension for drugs.

A third positive test requires a voluntary resignation.

The procedures also say teachers who admit to being under the influence of alcohol or drugs prior to an impairment test will not be disciplined, but will be subject to random testing for up to one year and must participate in a substance abuse rehab program.