School Drug-Testing Policies Stir Legal Challenges

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Job-related drug testing required by several school systems in the wake of a federal anti-drug law has sparked debate and drawn legal challenges by teachers' unions.

An administrative-law judge in New York State was scheduled this week to hear a complaint challenging the Elmira school district's drug-testing policy, while educators and state officials in Georgia late last week were awaiting a federal judge's ruling on a statewide policy there.

The policies range from random testing of the workforce to testing as a precondition of employment. Some also call for testing when school officials have "reasonable cause" to suspect use of drugs.

"It's not something that we can live with," Patrick E. Hacker, attorney for the Cheyenne (Wyo.) Teachers Education Association, said last week. The union is preparing a challenge to the Laramie County district's policy.

Triggering the smattering of new policies was the Drug-Free Workplace Act of 1988. The statute requires districts seeking federal grants and contracts to certify that their workplaces are drug-free. Final regulations took effect July 24.

Essentially, the law demands that employers bar the use and possession of drugs on the job and establish disciplinary measures for employees who violate the policy.

The act neither requires nor prohibits drug testing. But officials of several districts said that while drafting policies to comply with the federal mandate, they used the opportunity to incorporate employee or applicant testing into their overall strategy to counter drug abuse.

"We probably would not have even addressed it if there had not been that act or mandate," said Jack R. Iversen, superintendent of the Laramie County schools.

'Gross Overkill'?

The U.S. Supreme Court has never ruled directly on the constitutionality of testing public-school teachers for drugs.

It has held that random testing of some types of public employees is permissible, among them workers involved in drug interdiction and public safety.

"None of that [rationale] exists for teachers or support personnel,'' said Michael E. Kramer, general counsel for the Georgia Association of Educators,which is challenging that state's drug-testing mandate.

Opponents of drug testing for public-school employees say the tests violate the prohibition against unreasonable searches and seizures contained in the Fourth Amendment to the U.S. Constitution, as well as the constitutional right to privacy. Others also cite state laws, or argue that such policies are a subject for collective bargaining.

In what is probably the best-known teacher drug-testing case, New York State's highest court in 1987 said a Long Island district could test teachers only if there was a "reasonable suspicion" they were using illegal drugs. (See Education Week, June 17, 1987.)

None of the school-district officials interviewed during the past two weeks indicated that their policies were in response to a pervasive faculty drug problem in their schools or among teacher applicants. In Elmira, N.Y., none of the 50 to 60 job applicants tested positive in the past year, according to Richard L. Scott, the district's personnel administrator.

"In 16 years, we have never had a single individual accused of drug use," Mr. Hacker, the union lawyer in Wyoming, asserted. "The entire thing is a gross overkill."

The Laramie County policy permits random drug testing of bus drivers and testing of all other employees for reasonable cause.

Mr. Hacker said he was troubled, however, by the criteria used to determine reasonable cause. Listed among them, he said, are an employee's changing relationship with a colleague, a change in appearance, discussion of drug or alcohol use, and failure to respond to an administrative directive.

Mr. Iversen, the Laramie County schools chief, said the district would test only as a "last-resort verification" when drug use was suspected.

Policies Vary

The Georgia drug-testing requirement, part of a package of 35 anti-drug bills passed by the legislature last year, applies to all applicants for state and school-district jobs.

"They could be 20-year veteran employees with perfect records, but if they were to transfer to another school system it would make no difference," said Mr. Kramer, whose organization won a temporary restraining order against the policy.

If job applicants test positive, they cannot apply for another state or public-school job for two years.

"This wasn't aimed at just teachers or a certain sector of our workforce," said Mike Vollmer, executive director of the Governor's Commission on Drug Awareness and Prevention. "It makes no difference whether you're applying as a janitor, teacher, doctor, or whatever."

In the Elmira district, mean4while, the schools are operating under their third drug-testing policy. "It is extremely punitive," Lynn Grottenthaler, president of the Elmira Teachers Association, maintained. The focus, she said, is on discipline rather than rehabilitation.

The school board's initial policy incorporated such provisions as requiring employees to report suspicious behavior or risk punishment, said Ms. Grottenthaler.

A second policy, a collaborative effort between school officials and teachers, was ultimately rejected by the school board. The latest addresses off-duty behavior as well as use or possession of alcohol or drugs on school premises.

Teachers who exhibit questionable behavior are subject to testing, as are all job applicants.

"The new policy emphasizes the fact that drugs and illegal substances will not be condoned in the schools," said Mr. Scott, the district personnel official.

The issue has also flared recently in other districts. Among them:

Knox County, Tenn., which requires drug screening for applicants despite a state attorney general's ruling that blanket tests of applicants are probably unconstitutional. The applicants pay a $25 fee, and results are sent directly to the district.

"We have grave concerns about this," said Terry M. Uselton, president of the Knox County Education Association. One is that school officials may find out that a teacher takes medication for an ailment.

The Woodbridge school district in Delaware, which repealed its policy calling for random testing of workers on the orders of the Public Employment Relations Board. The board ruled that drug testing was subject to collective bargaining.

Vol. 10, Issue 06

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