MEMORANDUM

To: L. Hittmeier, BCEA President

From: Karen Bennett, Michele Jacobs

Re: Board's Proposed Employee Drug Testing

 

It has come to our attention that the school board is considering implementation of a drug testing policy for all district teachers. This issue has tremendous ramifications for us as classroom teachers. We write to be sure that the union is actively involved in the debate over the creation of this policy and to supply you with information that may be pertinent in this debate.

In our education law course, we became aware of the recent case of Knox County Education Association versus the Knox County Board of Education (1998 FED App. 0300P 6th Cir.). In this case, the board of a very large district in Tennessee created a drug testing policy that included suspicionless testing. The Knox County Board of Education's "Drug-Free Workplace" policy is very extensive. The teacher's union challenged the constitutionality of the policy under the 4th amendment which provides for security from "unreasonable searches and seizures". The district court found in favor of the union, but the Appellate Court of the Sixth Circuit reversed this decision. On October 4, 1999 the Supreme Court denied certiorari, refusing to hear the case. This means that they have allowed the Appellate's decision to stand in that circuit. However, there is no precedential value in our jurisdiction, since the Supreme Court did not rule on it.

The court's decision surprised us because the union's arguments seemed valid, given the legal precedents concerning drug testing.

Safety-Sensitive Position??

Typically the Supreme Court does not allow government's interest to override an individual's rights. However, when the nature of an individual's position is such that his/her impairment can cause harm to the public, then the Supreme Court has ruled that drug testing is warranted.

In Skinner v. Railway Labor Executives Association (1989, Supreme Court of the United States 87-155, 489 U.S. 602), the Supreme Court allowed suspicionless drug testing because railroad jobs involve tasks that would pose danger to the public if the employee were impaired. Evidence existed that alcohol and drug abuse by railroad employees had caused or contributed to several signigicant train accidents. Due to this evidence the Federal Railroad Administration pushed for stronger regulations and safety standards in this industry. The Supreme Court determined railroad jobs to be "safety sensitive" and further held "that accommodations of railroad employees' privacy interest with the significant safety concerns of the government does not require adherence to a probable cause requirement". In the Knox County case, the District Court ruled the suspicionless search was in violation of their 4th amendment rights, but the Appellate Court reversed the decision,ruling that teachers hold "safety-sensitive" positions that justify such a policy. The court ruled that school teachers, who act in loco parentis, are in "safety-sensitive" positions because it is their responsibility to care for and monitor children. The court held that "teachers must expect that with this extraordinary responsibility, they will be subject to scrutiny to which other civil servants or professionals might not be subjected, including drug testing".

The case of Chandler v. Miller (1997, Supreme Court of the United States 96-126, 520 U.S. 305 )shows a contrasting Supreme Court opinion. It involves the constitutionality of a statute requiring drug testing of Georgia's political candidates. The court held the statute unconstitutional because there was no individualized suspicion of wrong doing. This is in contrast to the Knox County case. Unlike the court's classification of teachers' positions , the court ruled that political office, while important, is not considered to be "safety-sensitive". In this case the Supreme Court did not find a 4th Amendment intrusion to be justified.

We are unconvinced that teachers fall under the "safety-sensitive" classification. Do we make life and death decisions? Can a single misjudgment cause a loss of life as with railroad operators? And if we require testing of teachers, where does it stop? Do you test parents, day-care providers, lunchroom employees, janitors, and school volunteers? All are involved in caring for children. Why isn't a government position, making decisions affecting all school children, considered safety-sensitive?

Preexisting Drug Abuse Problem??

In prior decisions concerning drug testing, the Supreme Court has required a "special needs" exception to overcome the need for individualized suspicion and has always sought to balance the individual's privacy expectations against government's interests. In cases where there is a known drug abuse problem, the Supreme Court has allowed drug testing.

Vernonia School District v. Acton (1995, Supreme Court of the United States, 94-590, 515 U.S. 646) is a case involving random drug testing of school athletes. In this case there was rampant drug use among students with the athletes being known leaders. The school district's action was in response to this problem. The court allowed this policy to stand. Skinner also came under the "special needs" exception due to the history of drug and alcohol abuse among train operators.

In both Vernonia and Skinner the courts allowed drug testing because of the evidence of a pervasive drug abuse problem. But, in Knox County there was no evidence of a preexisting drug abuse problem among district teachers and the board could site no specific cases where an impaired teacher ever brought harm to a student.

Although there is no known drug problem among staff in our district, the board could implement such a testing program, given the Knox County precedent. However, the Seventh Circuit has not made any decisions on drug testing teachers. Therefore if they create a policy, we could challenge it legally, and get an interpretation in this circuit.

Pertinent Issues in Policy Development

After researching drug-testing, and careful consideration of the possible ramifications of a policy regarding drug testing of teachers, we feel its implementation would be inadvisable. Several key policy considerations influencing our position include: concerns of the community's perception, possible effects on teacher morale, feasability of implementing a viable plan, validity and reliability of the drug tests themselves. We have outlined the details of each issue, and it is our hope that once the board considers these issues, they will reach the same conclusion and abandon this idea.

1)The motivation behind and purpose of the drug testing must be clearly defined and made public.

The community will want to know why this policy is being implemented. We do not want the public to fear that there is a drug abuse problem among their teachers. The public's perception of this program will be important. The board must also be able to justify the expense involved in such a program. It will be difficult to justify the expense of such a program with no underlying cause (existing problem). District money could certainly be spent in better ways.

The union must see to it that the results of testing are not used in a punitive nature. Testing should be done for purposes of rehabilitation. The NEA recommends implementation of an Employee Assistance Program. Since we have started such a program in Chatham, lets encourage the board to make the consequences of their drug testing include participation in EAP. We do not want teachers to fear a "witch hunt". It is important for teachers to understand the precedent set in Knox County.

2) The test must be valid and accurate.

We must be prepared to answer the legitimate concerns about accuracy in testing. Can the test be fooled? Many websites, such as Clean 'n Clear offer a product guaranteed to help you pass a drug test. There can be no suspicions that people can cheat.

Other resources debate the effectiveness in terms of the test's own merits. Many physicians, such as Dr. Kent Holtorf, author of UR-INE TROUBLE, have identified common foods, vitamins, and medications that will cause a false-positive or an inaccurate reading. Laboratory error produces over 50% of the positive results in some laboratories.

If the board cannot guarantee accuracy of the results, perhaps teachers should not be subjected to the process at all. A mistake in this area could ruin a teacher's reputation and career.

3) The details of any testing plan must be clearly defined.

Any policy would have to be extremely detailed. The Knox County policy is fifteen pages long!! and outlines all aspects from punitive consequences to guidelines of the collection process. Employees must know the details of the plan (how, when, by whom, and where the samples will be collected and evaluated).

If the board decides to create this policy it must be carefully planned with input from all stakeholders. It is important to note that Knox County's original plan was thrown out by the district court due to lack of specifics.

4) The effect this will have on teacher moral must be considered.

We know some teachers who would have no objections to taking a drug test. They feel if they are innocent they have nothing to fear. We believe they are naive in this assumption. We have done a lot of research on privacy issues, and have found that it is difficult to keep personal information private even when there is an intention to do so. We would be very concerned that the information from the drug testing might be misused, or fall into the wrong hands. The ACLU sited a 1988 case where the Washington DC police department admitting using urine samples to screen for pregnancy -- without the knowledge or consent of the female employees.

We have tremendous concerns about the validity of the tests and fear the possibility of inaccurate results leading to the destruction of someone's career!!

This policy might affect the hiring of new teachers to fill empty positions. If they can go elsewhere without testing, they will. This policy might discourage teachers from joining our staff.

Many teachers who have been with the district would resent the distrust such a plan indicates. Some would be insulted. Some people might refuse to relinquish their constitutional rights. The ACLU is defending a man in Florida who lost his job because he refused to take the test. It might cause us to lose some good teachers who are unwilling to leave their "privacy rights at the doorstep when they enter their place of employment".

We would be happy to meet with you to discuss these and other issues concerning drug-testing in our district. If you have any questions regarding this memo, please feel free to contact us.