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Schools would not be required to test their bus drivers, mechanics, and aides randomly for evidence of drug abuse under a controversial proposed federal rule, a spokesman for the Transportation Department said last week.

The regulation, announced by Secretary of Transportation James J. Burnley 4th on Nov. 14, would force private firms and local mass-transit agencies to suspend workers whose urine contains traces of opiates, marijuana, cocaine, amphetamines, or phencyclidine (pcp).

The plan--which calls for several forms of testing, including pre-employment, periodic, random, "reasonable cause," and post-accident--would apply to some four million workers in the airline, trucking, railroad, shipping, transit, and oil4and-gas-pipeline industries.

Unions representing such workers plan to file suits arguing that the rule violates their members' Fourth Amendment right to be free from unreasonable searches.

The U.S. Supreme Court recently heard arguments in two cases involving existing federal drug-testing requirements for railroad and Customs Service employees. The decisions in those cases are expected to set a legal framework for testing programs for teachers and other school workers.

The U.S. Supreme Court declined last week to review lower-court rulings requiring the state of Connecticut to pay the legal fees of a handicapped student who incurred them at a time when states could not be forced to make such payments.

The special-education case, Connecticut v. Counsel (Case No. 88-484), was filed in 1985, a year after the Court ruled in Smith v. Robinson that the Congress did not authorize legal-fee awards in suits filed under the Education for All Handicapped Children's Act, P.L. 94-142. Lawyers for the mildly retarded student, Donnell Counsel, the New Haven public schools, and the state signed a consent decree that settled the dispute.

In 1986, the Congress passed legislation authorizing fee awards in special-education suits. The law also allowed federal district courts to order such payments retroactively in cases that arose during the two years following the Smith decision.

Shortly after that law was passed, a federal district judge granted a motion by Mr. Counsel's lawyers ordering the state to pay them $2,633 for their work on the student's behalf. A federal appeals court affirmed that ruling last June.

In papers filed with the Supreme Court, the state argued that the Constitution's spending-power clause does not authorize the Congress to impose retroactive conditions and obligations on federal-aid recipients.

Vol. 08, Issue 12

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