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E.D. Employees' Union Will Challenge Decision Permitting Drug Tests

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Washington--The union that represents about half the Education Department's employees plans to appeal a July 26 ruling that allowed drug testing of several categories of the agency's workers, according to a spokesman for the American Federation of Government Employees.

Both that case and a related challenge to an Interior Department plan calling for testing of teachers in Bureau of Indian Affairs schools are on hold, however, pending the outcome of two other drug-testing cases.

Spokesmen for the afge, the Education Department, and the National Federation of Federal Employees, which represents Interior Department workers, said no further action will be taken until the U.S. Court of Appeals for the Dis4trict of Columbia Circuit rules on cases involving Transportation Department workers and civilian employees of the Army.

Lawyers involved in the cases expect that the appeals court's decisions will help clarify recent U.S. Supreme Court rulings on drug testing.

The High Court has upheld testing of railroad employees and some Customs Service workers.

U.S. District Judge Joyce Hens Green cited those rulings--and a case in which the appellate court in Washington upheld part of a Justice Department testing plan--in deciding to halt only part of the Education Department program.

Judge Green rejected the afge's argument that random drug testing is generally impermissible. "Each of the positions to be tested must be examined separately," she said.

The department had not demonstrated a sufficiently "compelling interest," Judge Green argued, to allow testing of 88 data processors. The agency argued those workers had access to sensitive information. (See Education Week, March 22, 1989.)

But Judge Green also ruled that "public safety" concerns supported the testing of nine department drivers and the secretary of education's bodyguard, who carries a gun. In addition, she upheld testing of 13 employees with access to "top secret information with national security implications."

The judge did not consider the proposed testing of Presidential appointees or workers in the inspector general's office, because the union has no members among those groups.

If upheld on appeal, the ruling would allow random testing of 101 ed employees, as well as testing when officials have a "reasonable suspicion" that an employee is using drugs.

The union did not contest the department's plans to test applicants for "sensitive" positions.

In the Interior Department case, U.S. District Judge Harold H. Greene in January issued a temporary injunction blocking the agency's entire drug-testing plan, which would have covered about 3,600 educators, bus drivers, and dormitory attendants at federally operated Indian schools. (See Education Week, Feb. 8, 1989.)

In a sharply worded ruling, Judge Greene said the agency had not shown a "compelling interest" sufficient to override the privacy rights of any of the employees. He accused the government of subjecting workers to "humiliation and indignity" for political reasons.

Judge Greene has not yet issued his final decision in the case. Before he does so, he will have to consider the relevant rulings issued by the Supreme Court, as well as the anticipated judgements by the court of appeals in Washington, said Jeffrey Sumberg, a lawyer for the nffe

"My guess is that he will bend over backwards not to have to" examine each of the thousands of positions targeted by Interior officials for testing, Mr. Sumberg said. "I think he will say that most of them, including the teaching positions, are not as sensitive as the ones the Supreme Court considered."

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