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Published in Print: July 30, 2008, as Teacher Drug-Testing Program in Hawaii Stalls Over Who Will Pay

Teacher Drug-Testing Program in Hawaii Stalls Over Who Will Pay

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Random drug testing of Hawaii’s public school teachers was supposed to begin a month ago, but a stalemate over who will ultimately pay for the program has prevented the process from getting started.

Gov. Linda Lingle, who pushed for the testing last year as part of the Hawaii State Teachers Association’s union contract, says the state education department should foot the bill and has enough money in its $2.3 billion budget to do so. The state board of education, however, has so far refused to approve funding for the program, saying it would require taking money away from the classroom.

“The governor believes the department of education can find the funds in its budget,” Russell Pang, a spokesman for Gov. Lingle, a Republican, said in a July 15 email.

Covering the cost, Mr. Pang added, would be even easier if department officials dropped their plan to test 25 percent of all teachers—and their $500,000 estimate of how much the program would cost—and instead adopted a scaled-down proposal that would test only 1 percent of the state’s 12,000 teachers each year.

That would make the cost considerably lower. With each test costing about $35, the total for testing 120 teachers would be $4,200.

“By taking this narrower approach that focuses on the random element, rather than testing the large number of teachers the [department of education] and [board of education] originally envisioned, the implementation becomes more manageable, affordable, and effective,” Mr. Pang wrote.

He added that he was encouraged by state Superintendent Patricia Hamamoto’s and board Chairwoman Donna Ikeda’s willingness to consider the governor’s plan.

Legal Challenge Planned

Meanwhile, the American Civil Liberties Union and a group of roughly 200 Hawaii teachers have vowed to challenge the program in court, if it ever begins.

“If drug testing of teachers goes forward, we are ready to file suit,” said Graham Boyd, the director of the ACLU’s Drug Law Reform Project, based in Santa Cruz, Calif.

Even though the 13,000-member Hawaii State Teachers Association, an affiliate of the National Education Association, ratified the contract containing the drug-testing provision, union officials said the members felt forced to agree to the controversial program because it was tied to an 11 percent salary increase. ("Hawaii Teachers Face Random Drug Tests," May 9, 2007.)

Gov. Lingle proposed the plan amid a series of well-publicized drug arrests involving employees of the statewide school district.

And despite the holdup over paying for the program—which education department officials originally said would require nine new staff members—the HSTA and the department are trying to work out the details of implementation, as was stipulated in the contract.

“We are hoping to get it done real soon,” said Roger Takabayashi, the president of the HSTA. “The teachers did ratify it, and we are working in good faith.”

Still, he added, a number of issues have yet to be decided, such as who will fill in for a teacher who is chosen to be tested, a process that requires being away from the classroom for three hours.

“Someone has to take the class,” Mr. Takabayashi said. “It’s a lot more complex than what meets the eye.”

Milton Goto, a spokesman for the board of education, confirmed July 18 that procedures were being worked out. But he said the board was “still having difficulty finding money for an unfunded mandate,” especially because the board is expected to cut roughly $20 million from its fiscal 2009 budget of $2.3 billion.

While drug testing of teachers nationwide is rare, it’s more likely to be required for new applicants rather than current employees. Such policies are more common when an employee is suspected of using illegal drugs or there is evidence of a past drug problem.

Case law on drug tests for teachers is mixed. In 1998, the U.S. Court of Appeals for the 5th Circuit, in New Orleans, struck down a drug-testing program involving teachers, while the 6th Circuit federal appeals court, in Cincinnati, upheld a different program that year.

ACLU’s Letter

Even though the ACLU is waiting to see whether Gov. Lingle and the state school board reach an agreement that gets the program under way, the civil-liberties group hasn’t stayed out of the situation completely.

In February, Vanessa Chong, the executive director of the ACLU of Hawaii, joined legal experts and a group of Hawaii teachers in sending a letter Requires Adobe Acrobat Reader to the governor about what was perceived as a threat to withhold a portion of the teachers’ raises if the drug-testing program didn’t begin.

Ms. Lingle’s comments about the need for the testing program to go into effect were made after the state board voted against spending money on the program.

“In order to silence your critics, you threatened to withdraw the pay raises that teachers have been receiving since the agreement’s July 1, 2007, effective date,” the Feb. 1 letter said, referring to the teachers who have said they would join the ACLU in a lawsuit.

The letter continued by noting that the teachers’ contract has a “severability” clause, meaning that if one piece of the contract is found to be invalid and is removed, the rest of it remains intact.

“Even absent an explicit severability clause, your all-or-nothing interpretation of the labor agreement lacks legal merit,” the letter said.

Mr. Pang responded that Gov. Lingle has said she doesn’t want to make any threats.

“The governor never said teachers could lose their pay raises if the program does not start,” he said.

Vol. 27, Issue 44, Page 16

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