Drug-Test Mandate Prompts Court Suit By Teachers' Union

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A Long Island superintendent's "ambitious" plan to rid his district of drug-abusing staff members by requiring those who are new or seeking tenure to submit to a urinalysis is being fought in court by the local teachers' union.

The testing program, which appears to be a rarity in a public-school system, raises constitutional issues that have not yet been argued in the courts, legal experts said last week. Such screening efforts are becoming common in the private sector and are being used increasingly widely in the military services, but are not common in the civilian public sector.

"This is a new, untested area," said Richard Emery, staff counsel with the New York Civil Liberties Union. "This could be a potentially precedent-setting case. What we have here is blanket suspicion, a presumption of guilt instead of a presumption of innocence."

The Patchogue-Medford Congress of Teachers, an affiliate of the American Federation of Teachers, last month asked the Suffolk County Supreme Court to block the drug testing of 23 probationary teachers who are seeking tenure in the Patchogue-Medford School District.

The union claims the test violates the teachers' contract and their Fourth Amendment right of protection from unreasonable searches, said Anthony Conetta, president of the local.

On May 15, the court issued an initial temporary restraining order and a week later Justice Thomas M. Stark extended the temporary stay.

A final decision on whether or not the school district has the right to conduct a general drug screening of teachers as part of a routine urinalysis is expected by the end of June, union and school officials said.

Henry P. Read, superintendent of schools, ordered the drug tests "as part of a very ambitious drug- and substance-abuse program," said his executive assistant, Susan Alevas. "The superintendent has said, and believes, that you can't have role models who use cocaine," she said.

A position paper on the drug test authorized by Mr. Read states that "it is the informed opinion of the superintendent of schools that staff members who use illegal drugs even occasionally or recreationally cannot support the programs of the district with a sincerity of commitment which will influence the students."

According to Ms. Alevas, no incident prompted the directive, but the position paper said that school administrators have received reports from teachers in the district that some probationary teachers might be using drugs.

No Precedent

Officials from the national offices of both the aft and the National Education Association said they knew of no other district in the country that required teachers to submit to drug testing.

But according to Ms. Alevas, the district "has received reports that there are other school districts that are employing this practice" without controversy. She declined to name them, however, "because of the potential publicity that would be paid to the other school districts without their prior knowledge."

The order to test all new district employees, as well as teachers and administrators being considered for tenure, came from the superintendent's office, without the formal approval of the district's school board, Ms. Alevas said. "But the board has been fully briefed and is unanimously supportive of the action," she added.

Cases Handled Individually

Teachers who receive a positive result on the initial drug test, which would be administered as part of a required physical examination, would be required to undergo a second, "more sophisticated" urinalysis.

If the results of the second test were positive, then the teacher would probably not be recommended for tenure by the superintendent, Ms. Alevas said. Consequently, "they would no longer have a job with the district at the end of the year," she added.

But she was quick to note that each case would be handled individually, and that in certain instances the superintendent might extend the probationary period.

Mr. Read ordered that the teachers be tested for 10 drugs. They include: amphetamines, cocaine, Doridan, lysergic acid diethylamide (also known as l.s.d.), methadone, methaqualone, morphine, phencyclidine (also known as p.c.p. or angel dust), phenothiazine, and secobarbital.

Marijuana was not included in the list of drugs, Ms. Alevas said, because state-of-the-art tests cannot positively identify a user, since traces of the drug appear in the urine of individuals only exposed to marijuana smoke.

Acted 'Capriciously'

Thomas Y. Hobart Jr., president of the New York State United Teachers, accused Mr. Read of "acting arbitrarily and capriciously" in ordering the teachers to submit to the drug test as a condition of employment.

"No one wants drug abusers in the classroom," Mr. Hobart said. "It's most distressing and discouraging to see this kind of approach to preventing what everyone wants to prevent."

Mr. Hobart argued that the district could have used a more "constructive, humane approach" in dealing with the issue. "As it is, they've created the impression far and wide that there is a big drug problem there. That's ridiculous and certainly counterproductive," he said.

"We're facing a critical teacher shortage and we need to attract and retain the brightest and best into the profession," he added. "We're not going to be able to do that when we have administrators treat professional teachers with dragnet tactics and aspects of guilt by association reminiscent of the Joe McCarthy era."

Norma Rollins, acting director of the New York Civil Liberties Union, which is opposed to the testing, called it "a humiliating sort of thing" and advocated evaluating teachers for tenure based on their job performance.

"Even if a teacher did use drugs as an off-duty thing, that does not lead me to believe the teacher should be disqualified," Ms. Rollins said. "Private conduct during the hours the teacher is not at work is irrelevant to whether he should get tenure or not."

Issues Drawing Attention

The issues surrounding testing for drug use have drawn public attention in recent months because of the announcement by Commissioner of Baseball Peter V. Ueberroth that all professional baseball personnel, with the exception of the major-league players, will be randomly tested for drug use. He also has asked the major-league players to submit to the testing voluntarily.

And last week, the U.S. Defense Department announced it will begin testing civilian employees who hold what are deemed "critical jobs" for drug use, said Maj. Peter L. Wyro, a Pentagon spokesman. All military personnel have been subject to periodic tests for drug use since the 1970's, Major Wyro said.

According to Ms. Rollins, a "substantial number" of companies also require drug tests of their employees. She said she expects to hear about it much more frequently in the future. "These types of ideas tend to propagate themselves," she said.

Constitutional Questions

Paul N. Samuels, executive vice president of the Legal Action Cen-ter, a nonprofit public-interest law center that focuses on issues of alcohol and drug abuse, said he knew of no federal-court decisions that have found it unconstitutional for an employer to test employees for drug use. "But that does not mean there won't be a first one," Mr. Samuels said.

In several instances, he acknowledged, courts have ruled that drug testing violated an existing contract or collective-bargaining agreements. And in some cases, he added, courts have found such testing faulty on due-process grounds.

Thus far, the federal courts have upheld the constitutional right of the employer to test for drug use in only one case, Mr. Samuels said.

But according to Daniel Galinson, the lawyer for the Patchogue-Medford Congress of Teachers, that decision does not apply to the teachers' case.

In the earlier case, the U.S. Court of Appeals for the Seventh Circuit ruled in 1976 that a Chicago transit worker could be tested for drug use only if his or her employer had "reasonable grounds" for suspecting that the individual employee was using drugs on the job and there was evidence that the public was endangered.

"There is no reasonable basis to conduct the tests on these teachers," Mr. Galinson said. "None of these teachers who have been asked to submit to the examination have ever been charged or has it even been insinuated that they have used drugs."

Contractual Issue

While the Long Island teachers claim the drug testing would violate their constitutional rights, they also argue that the test violates their contract. But school-district officials disagree.

According to Ms. Alevas, a physical exam has been required of all new school employees, and of teachers and administrators eligible for tenure, since 1953. This physical exam, including the urine test, is part of the district's negotiated agreement with the teachers and is permissible under the state's education law, Ms. Alevas said.

The only thing that has changed, she argued, is that Mr. Read has added a general drug screening to the routine urinalysis, which has traditionally been used to check for such conditions as bladder disease, liver damage, and diabetes.

But the union claims that the probationary teachers who are eligible for tenure next year had their required physical exam in March, before the superintendent ordered the drug test. The additional urine check, ordered last month by the superintendent,"violates our contract," said Mr. Conetta, president of the local teacher's union.

Union officials said they will file suit on behalf of any teacher dismissed for refusing to submit to the drug test, and are currently exploring the possibility of beginning a federal-court action on the constitutional aspect of the drug testing if the state court allows the district to proceed with the tests.

According to the statement released by Mr. Read, the district's board has given its lawyers "the right to appeal the decision of the Suffolk Supreme Court, should that be necessary."

Vol. 04, Issue 37

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