Some constitutional law experts say the random drug-testing clause in the newly approved public school teachers contract could be a violation of teachers' privacy and civil rights and may make a strong case if challenged in court.

"The many teachers who voted against the contract would seem to me to have a solid basis for challenging the drug-testing requirement," said Jon Van Dyke, a professor of constitutional law at the William S. Richardson School of Law at the University of Hawai'i-Manoa. "Constitutional rights of this magnitude cannot be lightly waived. And one group cannot waive the constitutional rights of another."

Lt. Gov. James "Duke" Aiona, an attorney, said labor and contract law would also play a role in any court test, and the simple fact of contract ratification would be a major factor.

"The bottom line is this was a negotiated contract and teachers voted in favor and ratified," Aiona said. "As far as we're concerned, it's binding.

"We're not saying it can't be trumped, but it's something both sides came to the table on, hammered it out, and then ratified, and to me that's the strongest provision."

Hawai'i's approximately 13,500 public school teachers ratified the two-year contract May 2 in a 61.3 percent to 38.2 percent vote, with the union giving the contract to the membership without its endorsement — a rare occurrence. The contract also includes a 4 percent raise in each year, plus step increases for many teachers.

The state said it would not agree to a contract that did not include random testing.

"Anyone can challenge anything" in court, said Marie Laderta, chief negotiator for Gov. Linda Lingle's administration. "Whether the contract can withstand a challenge is another matter."

Laderta said she will work with the teachers' union and the state Department of Education to ensure the contract offers teachers the opportunity for rehabilitation when needed.

"I have confidence once we get going people will see we are really there to protect them from drug abuse and the children from being in an abusive environment," Laderta said.

ACLU CONTACTED

The challenges might still come, according to union leaders, who say some Hawai'i teachers have been in contact with the Hawai'i branch of the American Civil Liberties Union and private attorneys.

"Suspicionless drug testing of teachers is a violation of their privacy, their dignity and their constitutional rights," said Graham Boyd, an ACLU attorney with expertise in constitutional law based in Santa Cruz, Calif.

An attorney for the National Education Association, which represents 2 million teachers nationwide, said the legal issues surrounding teacher testing are murky because the U.S. Supreme Court has never ruled specifically on random drug testing of teachers.

Michael D. Simpson, assistant general counselor for the NEA's Office of General Counsel in Washington., D.C., said lower courts have ruled both ways, with the deciding point centering on the issue of whether or not teachers can be considered "safety sensitive" workers — an issue which has trumped privacy rights.

"The Supreme Court upheld random drug testing of public employees who hold 'safety sensitive' positions, and defined safety sensitive positions as those jobs that involve 'duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences,' " Simpson said.

Some of these include airline pilots and nuclear power plant operators, he said.

"When the government wants to drug test its own employees it must show that the job is 'safety sensitive,' " Boyd said. "So the central question is: How safety-sensitive is the job?"

Nationally, teacher drug testing is rare, he said, and the number of court cases are equally rare.

There are as few as four cases on the record books regarding random drug testing of teachers, said NEA lawyer Simpson. The courts have already struck down random drug testing of teachers in two cases and upheld it in two others. None has yet headed on to the U.S. Supreme Court.

HIGH-PROFILE CASES

The issue of drug testing for teachers came to the fore following several high-profile cases that included the arrest of four teachers since October on drug-related charges.

Leilehua High School teacher Lee Anzai, arrested in October and charged with selling crystal methamphetamine, pleaded guilty to a single count of selling the drug.

Two months later, two Mililani Middle School teachers were arrested for allegedly smoking marijuana before they showed up for work on a Monday morning. Each pleaded no contest to the petty misdemeanor charge.

In February, Ka'elepulu Elementary School resource teacher Bronwyn Kugle was arrested and charged with conspiracy to distribute drugs. She has pleaded not guilty and is seeking entry to a drug treatment program.

None of the cases involved students.

Legislators this session introduced bills calling for random drug testing, but the proposals did not survive.

Ongoing teacher contract negotiations had included deliberations over incorporating "drug testing for cause" before the governor demanded the contract include random drug testing.

While Laderta called ratification a win that would create safer schools for students, Hawai'i State Teachers Association executive director Joan Husted said many teachers felt they were being held ransom to vote for testing to get the pay raise.

The vote breakdown was indicative of strong feelings on both sides within union membership. Some teachers felt they were being forced to sign away civil rights for the sake of a wage increase, while others said teachers were being singled out on the basis of a handful of drug cases that made headlines. Others said teachers are a law-abiding group of professionals who don't need to worry.

In the wake of ratification, Big Island elementary school teacher Julianne Ostrosky wondered who would help teachers who may choose to challenge the clause.

"The union is not going to be able to help us ... because they ratified this," she said. "They've pretty much tied their hands as far as being able to represent us. So we're going to have to do class-action suits against the state of Hawai'i and the HSTA for depriving us of our Fourth Amendment rights. That's our only recourse."

Van Dyke said if the issue were to be tested in court, the Hawai'i State Constitution's tough privacy clause — considered stronger than that in the U.S. Constitution — could come into play.

"Hawai'i's right to privacy is written in strong terms," he said, "and it was clearly intended to protect the rights of our citizens against governmental intrusion and to put a heavy burden on the government to justify any such intrusion."

Van Dyke said the government is required to use the "least intrusive alternative" to achieve its goals.

"If a teacher is drug-impaired, that should be something that can be deduced by observing the person's actions, and a drug test based on probable cause of law violations could be justified," he said. "But testing every teacher based on a very few instances of law violation does not seem to me to meet the provision in Hawai'i's constitution protecting each individual's right to privacy."

ISSUES BEING RAISED

With the contract ratified, the parties have a year to work out details and procedures. While there hasn't yet been a meeting to begin hammering out all the provisions, Laderta said the three parties have agreed to meet late this month to start work.

Issues are already being raised, including the accuracy of test results and concern about false positives that could be caused by food, such as poppyseed muffins; fairness, to ensure teachers will not be singled out; the need for two different tests — one for alcohol and the other for illegal drugs; how randomization will be done; the cost, and who pays.

Union leaders say they will be ready to start work on an agreement as soon as they conduct additional research. School bus drivers and others who are required to hold commercial driver's licenses already are subject to random drug testing.

DOE spokesman Greg Knudsen said for school bus drivers, the random testing rate for controlled substances is not less than 50 percent of the number of drivers employed. For alcohol, it is 25 percent of those employed.

Other state workers not employed by the DOE — but in positions of safety and public trust in several other bargaining units — also are subjected to random drug testing based on a 25 percent sample for controlled substances and 5 percent for alcohol, Knudsen said.

"Teachers are going to do this in good faith," Husted said. "They are demonstrating to the community that they understand the community concerns. They understand why the community is supporting this, but the teachers expect to be treated fairly and with respect. That's the very minimum standard that ought to be in place."

But the union also expects teachers will be protected, she said.

"We're not going to let drug-testing become a witch hunt for people who decide they don't like a particular teacher," she said.

Under state law, personnel records are confidential, and Husted said the union will take all necessary steps to ensure records involving drug testing remain private.

"There is a lot of fear about who will know about the test, such as 'will parents know that I'm being tested?' " she said.

ACCURACY RATINGS

Husted said the union will want the least invasive tests, as well as tests with high accuracy ratings.

The national experts said that the most definitive findings come from double testing, including an initial test and then a confirmation test — both done by a federally certified laboratory. Husted said currently there's no federally certified lab in Hawai'i, but an existing lab can apply for this certification.

"If a school uses anything besides a federally certified lab, there's a big risk of false positives," said the ACLU's Boyd. "There are dozens of other ways to do drug testing which are not proven to be accurate — hair, saliva, sweat-patch testing. Even the urine tests you can buy over the counter in a pharmacy are not proven to be accurate. The only method is a federally certified lab, and it's more expensive."

Knudsen said it's too early to say yet what the DOE will be hoping to establish in the coming negotiations.

"We will be implementing the requirements of the contract and working with the HSTA to do that," Knudsen said. "We want it to be an effective and fair procedure that fills the requirement of the contract clause."

Reach Beverly Creamer at bcreamer@honoluluadvertiser.com.