Pubdate: Thu, 10 Jul 2008
Source: Honolulu Advertiser (HI)
Copyright: 2008 The Honolulu Advertiser,
Contact: http://drugsense.org/url/uXtrz8Lm
Website: http://www.honoluluadvertiser.com/
Details: http://www.mapinc.org/media/195
Author: Kim Coco Iwamoto
Note: Kim Coco Iwamoto is an attorney and a member of the state Board 
of Education. She wrote this commentary for The Advertiser.
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)
Referenced: http://www.mapinc.org/drugnews/v08/n643/a09.html

BETTER OPTIONS EXIST IN DRUG-TESTING ISSUE

The recent editorial on random drug testing of teachers conveyed 
frustration with government operations in contrast to the efficacy of 
the private sector.

Herein lies the rub.

The governor, the Board of Education and the Department of Education 
are all state actors. Private companies and private associations may 
freely conduct warrantless searches of their employees or members 
without any showing of cause or due process. However, the U.S. and 
Hawai'i Constitutions prohibit the government - including the DOE - 
from drug-testing its employees without reasonable suspicion. By 
proceeding with random drug testing, the governor and the DOE will be 
violating teachers' constitutional rights.

The only party in this whole drama that is not a "state actor" is the 
Hawaii State Teachers Association. The HSTA has sufficient resources 
to randomly drug-test 100 members a year, (complying with the 
governor's request). As long as a "state actor" is not paying for, 
conducting, selecting, or mandating the random drug testing, we can 
get back to more legitimate concerns and solutions.

The only time the government can test an employee without any cause 
is when the employee "performs a safety-sensitive function." As a 
federal appeals court recently ruled: "Jobs are considered 
safety-sensitive if they involve work that may pose a great danger to 
the public, such as: the operation of railway cars, the armed 
interdiction of illegal drugs, work in a nuclear power facility, work 
involving matters of national security, work involving the operation 
of natural gas and liquefied natural gas pipelines, work in the 
aviation industry and work involving the operation of dangerous 
instrumentalities, such as trucks that weigh more than 26,000 pounds, 
that are used to transport hazardous materials, or that carry more 
than 14 passengers at a time." This court holding reflects the 
protections of the U.S. Constitution; the state Constitution has 
language that is even more protective of privacy.

Although teachers perform one of the most important functions in 
society, this does not make an elementary school teacher 
"safety-sensitive" in the same way as a nuclear power plant operator. 
If we continue to insist that the DOE conduct the random drug testing 
of employees, instead of the unions, the costs of defending the state 
against an ACLU lawsuit will cost 10 times the amount of all the drug 
testing combined.

If the governor really cared about improving public schools, wouldn't 
she have swept in at the eleventh hour and insisted that the DOE be 
allowed to evaluate teacher performance more often than "once in 
every five years," as the bargaining agreement she signed currently 
limits? Ironically, a random annual performance evaluation of public 
school teachers would be permissible under the constitutions of the 
United States and Hawai'i.

Another option would be for the DOE to conduct drug tests based on 
reasonable suspicion. For example, the DOE could drug-test just those 
employees who are absent or tardy at a rate well above the national 
average. A recent audit conducted by the accounting firm Accuity LLP 
revealed that an average of 9 percent of Hawai'i's public school 
teachers are absent from work on any given school day; that is almost 
double the 5 percent national average. This means that 1,100 DOE 
teachers are absent from school every day. I have proposed that the 
DOE comply with the constitutional prohibition against random drug 
testing by limiting it to those employees who have an excessive 
number of absences and/or tardies without physician clearance. When I 
asked the ACLU if they would challenge this form of drug testing, the 
ACLU said that it considered this to be within the reasonable 
suspicion permissible standard.

The bottom line is that there are more productive, proactive 
solutions to this dilemma. We should not sell ourselves short with 
simple-minded, ineffective, unconstitutional, Band-Aid approaches to 
improving our public schools.
- ---
MAP posted-by: Jay Bergstrom