ACLU poised to sue over random drug testing of teachers

Whether the state can randomly select a handful of teachers and force them to undergo immediate drug testing is a decision the governor has 26 days left to address.

After that, the American Civil Rights Union will sue, according to Carlie A. Ware, an attorney with the ACLU Drug Law Reform Project.

Claiming that a stipulation within the teachers’ next two-year contract violates constitutionally protected rights, Ware said random drug testing without suspicion is a violation of privacy, as medical status — ranging from pregnancy, the presence of disease or traces of legitimate prescriptions — can be determined from urine samples.

The random testing is different than pre-employment drug screening, as it can be done more than once and without warning, Ware said.

Exposing employees who haven’t shown any reason to be tested threw union leaders for a loop, as they allege the state brought the condition of suspicionless drug testing to the negotiating table at the eleventh hour.

The result ended in a majority vote in favor of the new contract by the slimmest margin in the 35-year history of the Hawaii State Teachers Association, Tom Perry, director of the union’s Kaua‘i office, said.

“The governor’s reps basically came in and said, ‘I don’t care what you worked out before, if you don’t put in my random drug testing, everything is off the table, including salary,’” Perry said.

Ware said what she interpreted as a “take-it-or-leave-it” attitude by Lingle forced teachers to use their civil rights as a bargaining chip.

“The governor is essentially requiring teachers sell or trade their privacy rights, saying, ‘I’ll give you a pay raise if you do so,’ which is illegal.”

Drug testing based on suspicious behavior was already on the table in the new contract, but Lingle then gave a last-minute proposal that handed the government a carte blanche that could easily be abused, Perry said.

“How sad to have a nice, little classroom teacher who is now on a medication from the doctor have a false positive and have to pee in front of another officer, all medical records examined, just to prove innocence,” Perry said.

Complicating the issue is medical marijuana use, which is legal in Hawai‘i. Those testing positive could have to show whether they had it prescribed, thereby forcing them to enable superiors to view Health Insurance Portability Act-protected information.

Medical marijuana is prescribed for a finite number of ailments, including some fatal diseases, such as cancer and AIDS.

Though two Kula educators were arrested in April by Kaua‘i police in a raid that yielded 50 marijuana plants, processed marijuana, drug paraphernalia and ammunition, Ware reiterated that teachers and the ACLU weren’t arguing whether drug testing was constitutional, but rather whether testing should be done on a suspicious behavior-related premise.

“I have followed the news myself, and there have been a number of teachers and administrators arrested for suspicion of activity related to drugs,” Ware said. “But testing 13,500 people because of six people shows the problem: This is political. It’s the governor playing politics with teachers’ civil rights.”

How many of the 13,500 employed teachers would be subject to testing and how often the tests would be done remains to be seen; also unknown is the burden the random testing will cost taxpayers.

The cost is one policy aspect that frustrates sixth-grade Kilauea School teacher Jo Thompson, who spoke as an individual, not as an educator.

“I’d like to see the money go toward the students,” she said. For their classrooms, teachers get 50 cents a day per student.

“This is strictly my opinion, but doctors aren’t supposed to give any information out. That is supposed to be confidential,” she said. “What if an employee was on antidepressants or painkillers, or anti-anxiety or psychotropic drugs? Teachers are just as human as any other person out there.”

Clarification on just how private information would be gathered, relayed and responded to remains unclear, as the drafters won’t have to nail down details until June.

But that’s at the heart of the problem, Perry said.

“How will we test teachers? Will they all be put in a van one day? If they’re taken out of the classrooms, will subs be provided?” he said.

But Ware said the violation of a teacher’s civil rights eclipses any ambiguity in procedural process.

“We don’t even need to see the procedures to know this method is unconstitutional,” she said. “It casts a dragnet on innocent teachers, some of whom have taught for 15, 20 years and are now caught up in the political game without cause. That’s what ‘random’ means — without reason.”


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