Teacher Drug Testing Policies Declared Unconstitutional In North Carolina, Louisiana

June 4, 2009

Amidst latest court decisions and critical budget shortfalls, Governor Lingle must abandon unconstitutional random drug-testing scheme

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

HONOLULU – The ACLU of Hawaii today announced two more cases in which courts have ordered an end to suspicionless drug testing of teachers. On Tuesday, a North Carolina appellate court struck down a program that subjected all school employees to random drug tests; last Friday, a federal court in Louisiana issued a consent decree ending a policy that required any teacher who suffered an injury on the job to submit to a drug test – even if that "injury" resulted from being punched by a student.

Governor Lingle's is an increasingly lonely voice in the push for random drug testing. On June 2, the North Carolina Court of Appeals ruled that suspicionless drug testing of all school employees violated the North Carolina Constitution.1 The court explained that the North Carolina Constitution – like the Hawaii Constitution – provides greater privacy protections than the United States Constitution; the court also ruled that the school board could not merely declare all school employees to have "safety sensitive" positions (equivalent to nuclear power plant operators or employees in chemical weapons factories) to circumvent long-standing rulings from the United States Supreme Court.

Similarly, last week, a consent decree was filed in a lawsuit brought by the East Baton Rouge Federation of Teachers and the American Civil Liberties Union challenging the unconstitutional drug testing of teachers without reasonable suspicion. The decree, which was signed by a federal court, the Federation of Teachers, and the East Baton Rouge Parish School Board, brings an end to a policy that subjected any teacher who suffered an injury on the job to a drug test absent any suspicion of drug use.

The drug test of two-time East Baton Rouge Teacher of the Year Peggy Reno illustrates how the School Board's now defunct drug-testing policy was put into effect. Ms. Reno, a veteran and respected teacher, never in her life used an illegal drug, and her school never suspected otherwise.

A student punched Ms. Reno on September 24, 2008. Although there was no suspicion that she was under the influence of drugs or alcohol, Ms. Reno was forced by a School Board official to submit to an invasive drug test. Countless other teachers who have never used drugs – and who have never been suspected of using drugs – have been subjected to similar unconstitutional searches.

The Fourth Amendment to the Bill of Rights forbids government searches when there is no reasonable suspicion of wrongdoing.

In Hawaii, however, Governor Lingle still wants to force expensive, suspicionless drugtesting on Hawaii's 13,000 educators – a position that flies in the face of her assertion that she will leave no stone unturned in looking for cost savings to address the State's budget shortfall.

The current contract between the Hawaii State Teachers' Association (HSTA) and the State expires in four weeks, yet the parties have not reached an agreement on a new contract. Although contract negotiations are confidential, there is no indication that Lingle has backed down from her demands on random drug testing. Indeed, Lingle continues to fight HSTA in court over her right to drug test teachers despite the fact that, over a year ago, the Board of Education voted unanimously to prioritize educational programs over the costs of Lingle's unfunded, non-negotiable mandate -- and despite the fact that case after case from across the nation reveal her position to be unconstitutional.

Daniel Gluck, senior staff attorney with the ACLU of Hawaii, asked: "How is it that random drug testing – which does nothing to keep our children safe – is still on the table, when the Governor is mandating furlough of state workers and when the Board of Education is clearly opposed to diverting dwindling classroom funds for this 'pet project'? Courts all over the country are ruling this kind of program unconstitutional, yet the Governor still insists on exposing the State to unnecessary liability by continuing – alone – down this path."

Through a urine analysis, a drug test can reveal teachers' most sensitive medical information, such as whether they have certain diseases, whether they take prescription medication, and whether they are pregnant. Initial drug tests also have an unacceptably high rate of false positives, which can be triggered by a wide array of common products and over-the-counter drugs, resulting in an indelible stigma cast on entirely innocent teachers.

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