Federal Judge Bars Drug-Testing Plan Affecting Employees of Indian Schools

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Washington--A federal judge has blocked implementation of an Interior Department plan that would have subjected about 3,600 educators, bus drivers, and dormitory attendants at federally operated Indian schools to random drug testing.

In a biting opinion that called the plan a case of "bureaucracy run amok," U.S. District Judge Harold H. Greene granted an injunction sought by the National Federation of Federal Employees and the American Civil Liberties Union.

The injunction temporarily halts all random drug testing of Interior employees, which was to have begun last week. Plans to test job applicants were not challenged.

Judge Greene refused to block the part of the plan that calls for testing employees where there is a "reasonable suspicion" of drug use, but specified that "individualized suspicion of on-the-job impairment" must be supported by "evidence of substantial reliability."

An Interior Department spokesman said the Administration had not decided whether to appeal the injunction, as has been done in several other cases, or to proceed to a full trial.

The department's program, announced in November, was precipitated by a 1987 executive order by President Reagan requiring all federal agencies to develop drug-testing plans. Several cases challenging the federal plans are in the judicial pipeline, but the Defense Department's plan is the only other program that would affect educators. (See Education Week, Dec. 7, 1988.)

The first employee drug-testing cases to reach the U.S. Supreme Court, both involving federal workers, were heard by the Justices in November, and a case involving District of Columbia school-bus drivers is pending before the Court. No case involving the testing of teachers has reached that level yet.

In his ruling, Judge Greene said that there was no evidence of a drug problem among Interior Department employees, and that the agency had not shown that testing would serve a "compelling interest" sufficient to override the employees' privacy rights.

"Where testing has been upheld, it has in the main been in the context of significant, even overwhelming security and safety interests," he wrote.

"Moreover, the sweep of the Department's program is breathtaking," Judge Greene said, noting that a quarter of all department employees were included in the testing pool.

In outlining its testing program, the Interior Department argued that drug use would impair a teacher's performance and his "function as a role model and transmitter of societal values." This would lead, the department said, to "a great danger that students would be more susceptible to the use of drugs."

But the judge specifically rejected the classification of educational po8sitions as "sensitive," listing them among "routine job classifications, non-sensitive by any normal definition of the term," that were targeted for testing.

In his unusually acerbic opinion, Judge Greene charged the government with subjecting employees to "humiliation and indignity" for wholly political reasons.

He said the program represented "a wholesale deprivation of the most fundamental privacy rights of thousands upon thousands of loyal, law-abiding citizens ... not because anyone actually suspects that they are drug users but because they are employees of the government whom that government believes it can command on that account to repair to the toilets, so that it is able thereby to demonstrate its commitment to the war on drugs."

"Violations of the rights of citizens undoubtedly occurred on a larger scale than those that are called for by this testing program, but surely not very often," Judge Greene said, comparing the program to the internment of Japanese Americans during World War II.

Concluding with a literary reference, the judge said that only "a Kafka, an Orwell, or a Gogol" or, "in keeping with the farcical aspects of this tragedy, those modern masters of the absurd, Samuel Beckett or Eugene Ionesco," could properly convey the image of a "platoon of bureaucrats" lining up to be tested.

Vol. 08, Issue 20

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