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N.Y. Court Rejects Forced Testing of Teachers for Drugs

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Public-school teachers in New York State cannot be forced to take drug tests as a prerequisite to obtaining tenure, the state's highest court unanimously ruled last week in a case with nationwide implications.

The June 9 ruling by the State Court of Appeals is believed to be the first by a state's court of last resort on the issue of mandatory drug tests for teachers.

The decision in the case, Patchogue-Medford Congress of Teachers v. Board of Education, sets a precedent only in New York, but it could guide courts in similar cases brought elsewhere. Federal district and appeals courts have issued conflicting rulings on drug-testing requirements for public employees, and the U.S. Supreme Court has yet to hear a case on the subject.

Although school districts have "a special responsibility'' to shield students from drug abuse, they may not require teachers to submit to testing unless they have a "reasonable suspicion'' that the teachers actually use illegal drugs, Chief Judge Sol Wachtler wrote for the New York court.

Because the Long Island district that imposed the challenged requirement lacked such grounds, he said, the policy violated provisions in both the federal and New York constitutions forbidding unreasonable searches and seizures.

Spokesmen for the two national teachers' unions noted last week that only a handful of districts have considered or adopted testing programs similar to the one challenged in New York. Both predicted, however, that officials in other states would be reluctant to impose such a requirement in the wake of last week's ruling.

The Reagan Administration, which filed papers in the case supporting the Long Island district's testing program, is disappointed with the ruling, but believes that its impact will be limited, said Patrick Korten, a U.S. Justice Department spokesman.

"Any findings that the state court may have reached regarding the federal Constitution are not binding on federal courts in New York or elsewhere,'' Mr. Korten said, noting that five federal appeals courts have upheld the drug testing of employees.

Systemwide Effort

The New York case stemmed from the district superintendent's announcement of a systemwide antidrug effort in May 1985. Under the program, probationary teachers, as a precondition for obtaining tenure, would have been required to submit urine samples to their schools' nurses to be tested for the presence of illicit drugs. Teachers who tested positive on the first test and a subsequent retest would not have been recommended for tenure.

The local teachers' union, an affiliate of the American Federation of Teachers, filed suit in Suffolk County Supreme Court seeking an injunction barring the policy from taking effect.

The trial court granted the request, holding that the proposed tests would constitute an unreasonable search and seizure in violation of the Fourth Amendment to the U.S. Constitution. The Appellate Division of the State Supreme Court upheld the lower court's ruling in August 1986.

Last March, the Reagan Administration filed a "friend of the court'' brief with the New York State Court of Appeals backing the school district's position that such tests are permissible because freedom from drug use is a reasonable condition of employment for public-school teachers.

"From the standpoint of the nation's future, teachers hold one of the most important jobs in our society, and the need to keep that job free of drug use could not be greater,'' the Justice Department contended.

The Administration also argued that the test in question would be "simply another procedure to determine fitness for duty,'' and would represent a "very limited intrusion'' on the Fourth Amendment privacy rights of teachers. (See Education Week, March 25, 1987.)

Judge Wachtler based his ruling on both the state and federal constitutions, even though state constitutional questions were not raised in the lower courts. He said such a move was proper because of disagreements among other federal and state courts in similar cases involving only the Fourth Amendment.

"A urine test compelled by a government employer to determine illegal drug use infringes on the individual's privacy,'' the judge wrote.

He noted that it was "unrealistic'' for the district and the Justice Department to argue that there is no expectation of privacy with respect to urine because it is a waste product periodically eliminated from the body.

"If that were true,'' he wrote, "documents which individuals and businesses periodically destroy would be entitled to no constitutional protection from governmental scrutiny.''

"The act of discharging urine is a private, indeed intimate, one and the product may contain revealing information concerning an individual's personal life and habits,'' he continued. "Requiring a person to urinate in the presence of a government official or agent, as is sometimes required in these cases, is at least as intrusive as a strip search.''

Limits on Searches

Having reached that conclusion, Judge Wachtler then stated that school officials can infringe on teachers' privacy rights and require testing only if they have reason to suspect the teachers are using illegal drugs.

"[Teachers] have a diminished expectation of privacy with respect to state inquiries into their physical fitness to perform as teachers,'' he wrote,"and it is not unreasonable to require teachers to submit to ... testing when school authorities have reason to suspect that they are currently unfit for teaching duties.''

Although drug abuse is a major societal problem, he noted, "there is nothing in the record to indicate that this is also a problem among teachers generally or in this particular school district.''

"It appears that the superintendent alone identified the problem and chose a controversial solution'' that violated both the state and federal constitutions, he concluded.

Judge Richard D. Simons wrote a separate opinion stating he agreed that the policy violated the Fourth Amendment. He argued, however, that, because the teachers' union did not specifically assert a violation of state rights in its appeal, the majority should not have based any part of its ruling on the state constitution.

Daniel Galinson, the lawyer who represented the teachers' union, said he was "very pleased and satisfied'' with the ruling.

"Frankly, I couldn't see how the court could have decided it any other way,'' he said.

A secretary for Robert E. Sapir, the school district's lawyer, said he had not received a copy of the ruling as of late last week and was unprepared to issue a statement.

Mr. Galinson said, however, that the district had previously indicated that it would ask the U.S. Supreme Court to hear the case if the ruling were not in its favor.

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