Pubdate: Thu, 10 May 2007
Source: Niagara Gazette (NY)
Copyright: 2007 Niagara Gazette
Contact:  http://www.niagara-gazette.com
Details: http://www.mapinc.org/media/4174
Author: Paul Lane
Bookmark: http://www.mapinc.org/testing.htm (Drug Test)

DRUG ISSUE REMAINS A HIGH PRIORITY

Debate Continues As To Whether, How To Enact Random  Drug Testing
Policy

Depending on how next week's Lewiston-Porter School  Board election
goes, the district might soon thereafter  enter the national debate on
the legality of randomly  drug testing school employees.

Much debate surrounded the board's vote in March not to  enact a
random testing policy in the district -- a  motion that some board
members called a knee-jerk  reaction but prompted at least a couple
candidates to  run. Whether it be through lobbying to Albany or
putting the matter up for legal challenge, the new  board may look to
push the issue after members are  sworn in over the summer.

Drug testing became an issue in Lew-Port after the  events surrounding
Joan Donatelli, the longtime  elementary teacher there who was caught
using cocaine  in a classroom in which she served as a substitute this
  past winter. Donatelli has since pleaded guilty to  seventh-degree
attempted criminal possession of a  controlled substance and faces up
to 60 days in jail  when she's sentenced in the next few months.

A main issue in the debate is whether random testing  violates the
Fourth Amendment rights of the affected  people not to be subjected to
illegal search and  seizure. Testing is now allowed in Lew-Port if
there is  reasonable suspicion of a person using drugs or  alcohol,
board President Dave Schaubert said in March.

Attorney Karl Kristoff wrote in a legal opinion that  the board only
possess powers given to it by state  education law. Since there's no
provision granting the  board authority to test, he wrote, the
proposal  wouldn't be legal. He also wrote that testing could  only
take place if there was reasonable suspicion.

Several other court rulings have confirmed that random  testing of
teachers is not permissible, said David  Ernst of the New York State
School Board Association.

"We can demand a test based (only) on individualized  symptoms," he
said. "On this, we got pretty clear  guidance from the courts."

But legal precedent from outside the state gives those  who want to
enact a policy some hope. In 1998, the  federal Sixth Circuit Court of
Appeals ruled that the  board of education in Knox County, Ky., could
uphold a  drug testing policy it had enacted that called for
one-time, suspicionless drug testing of teachers and  other public
school employees in "safety-sensitive"  positions -- including
teachers, administrators, bus  drivers and other district employees.

The court's ruling said that suspicionless testing is  reasonable
because of the public interest in safe  schools and that employees in
heavily regulated areas  like schools have a lower expectation of privacy.

More recently, the Northampton Area School District in  Pennsylvania
may require random testing of employees  after a principal there
allegedly possessed and sold  crystal methamphetamine, The Morning
Call of Allentown,  Pa., reported in April. The Hawaii State Teachers
Association, meanwhile, voted last week to approve a  new contract
that includes a mandate for both  suspicion-based and random testing
of educators, the  Honolulu Star-Bulletin reported.

Ernst couldn't say whether outside rulings could  influence New York
law. The only way to know would be  for a district to institute a
random testing policy and  then have someone challenge it, he said,
and wait for  the judge's ruling.

That would be just fine with candidate Jim Sperduti,  who wrote in an
e-mail that he would vote for a testing  policy for new employees
similar to what's used in the  Niagara Falls School District, which
makes a drug test  a prerequisite for being hired (Schaubert said in
March  that this rule has never been legally challenged, while  both
Falls teachers union President Joe Catalano and  school district
attorney Angelo Massaro stand behind  it). After that, he would work
on a more comprehensive  policy.

"I would at first try to work within the system to then  implement
testing for the entire district," he wrote.  "If that failed, I would
move forward with a system  based on successful programs implemented
in other  states that have withstood court challenges."

Candidate Ed Waller would back similar moves. While he  would like to
see action from local legislators in  Albany to alter the law, he
feels a legal ruling might  be the only way to ensure that something's
done;  Assemblywoman Francine DelMonte, D-Lewiston, said  Thursday no
one from the district has been in contact  with her concerning
legislation on the matter.

"It's an opportunity for Lew-Port to take on a  leadership role in a
regional, state and national  battle," he said.

Waller noted that he would first seek a legal opinion  as to the
likelihood of a challenge to any drug testing  policy standing up in
the Second Circuit Court of  Appeals (which covers New York state), as
well as get  feedback whether residents support moving forward on  the
matter.

Candidate Keith Fox, while in favor of testing new  hires, is against
enacting random testing without  changes being made to the law.
Candidate Bob Weller,  meanwhile, has proposed instituting a voluntary
testing  initiative as a first step toward getting a more
comprehensive system in place. Fox has concerns about  this, though,
saying it singles out people who -- for  reasons other than doing
drugs -- refuse to take the  test.

"What would that conclusion be?" he wrote in an e-mail.  "I believe it
would be guilty as charged. Very unfair."

Weller did not respond to an e-mail seeking further
comment.

Candidate Mike Gentile agrees with Fox that enacting a  random testing
policy is a bad idea.

" ... any board member who votes in favor of any item  that he/she
knows is unlawful or unconstitutional and  would subject the district
to certain litigation is  knowingly subjecting the district to
liability and  wasting taxpayer funds, and should be subject to
removal," he wrote in an e-mail.

Saying he is in favor of pre-employment testing,  Gentile would like
to undertake more research before  moving further on the issue.

The cost of litigation is a potential barrier, but  Sperduti and
Waller said it would be worth it to ensure  students' safety. Some of
that cost might be defrayed,  Waller said, by an attorney who might
take the case pro  bono, knowing the exposure the case would bring.

The five candidates are competing for three open seats.  The school
board and budget vote take place Tuesday.
- ---
MAP posted-by: Derek