Under Policy, Teachers at B.I.A. Schools No Longer Subject to Random Drug Tests

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Washington--Teachers at Bureau of Indian Affairs schools will no longer be subject to random drug testing, under revised guidelines implemented by the Interior Department last month.

In addition, the department altered a policy mandating such tests where a "reasonable suspicion" of drug use exists. It will now require evidence of "on-duty drug use or drug-related impairment."

B.i.a. school-bus drivers, however, remain subject to random testing. The Education Department has also announced its intention to make similar alterations in its testing plan.

The policy changes effectively settle lawsuits in which unions challenged testing policies in the two agencies, according to lawyers involved in the cases.

David L. Mathews, drug-program manager for the Interior Department, said the changes there were "based upon the case law in consultation with the Department of Justice." "They told us which positions they could defend and which they couldn't," Mr. Mathews said last week. "The department would like to have the schoolteachers in there, but at this time, there isn't sufficient case law to justify them going in." The Interior Department's original plan called for testing 3,600 bia educators, bus drivers, and dormitory attendants.

The Defense Department, the only other federal agency that employs teachers, removed educators at its overseas schools from its random-testing pool in 1989.

Jeffrey Sumberg, a lawyer with the National Federation of Federal Employees, which brought the suit against the Interior Department, predicted that states and school districts seeking to test teachers for drug use would not be given more latitude than the federal government.

"I think it's a good sign for the courts that they're going to require a pretty high degree of sensitivity" before allowing random drug testing of employees, he said.

The Education Department was responding specifically to a November ruling by the U.S. Court of Appeals for the District of Columbia Circuit in a case challenging a drug- testing policy at the Agriculture De partment.

The court ruled that the govern ment's interests in discouraging drug use by its employees outweighed em ployees' privacy rights only in cases where workers are in positions that directly affect public safety or agency security, and that only those workers can be subject to random testing.

The court also held that workers not in the random-testing pool for safety or security reasons can be subject to "reasonable suspicion" testing only when on-duty impair ment is suspected, and that rules re quiring observed urine testing are unconstitutional.

A Justice Department lawyer who has handled the Education De partment case said he was not sure when that agency would complete its revised policy.

The Education Department announced its intention to revise the policy last month in a brief filed with the federal appellate court for the District of Columbia.

U.S. District Judge Joyce Hens Green ruled in July 1989 that the department had not demonstrated a sufficiently "compelling interest" to allow testing of 88 data processors. She enjoined such testing.

But Judge Green upheld the ran dom testing of nine department drivers and the Secretary of Educa tion's bodyguard on "public safety" grounds, as well as random testing of 13 employees with access to sensi tive information and "reasonable suspicion" testing of all employees. (See Education Week, Sept. 6, 1989.)

In response to the Agriculture De partment ruling, the Education De partment asked the appeals court to uphold the testing approved by Judge Green and to reserve judg ment on its "reasonable suspicion" program until it is modified.

In the Interior Department case, U.S. District Judge Harold H. Greene issued an injunction in 1989 that halted the department's entire random-testing program and upheld "reasonable suspicion" test ing only in cases of suspected on-the- job impairment. (See Education Week, Feb. 8, 1989.)

A 1987 executive order required federal agencies to develop drug-L testing programs, many of which have been challenged in court.

Vol. 10, Issue 20

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