Teacher drug testing may see legal action

CHARLESTON, W.Va. -- Unless members of the Kanawha County school board change their minds about a plan to randomly drug test teachers, the county could be in for a costly legal battle.

"If there's not a reversal, I think it's going to be expensive for everybody," said Judy Hale the president of the West Virginia chapter of the American Federation of Teachers. "This is too important for us to just let it go as is, because people's careers can be destroyed over a false positive read."

Board members will confront a cadre of educators and lawyers trying to get them to back down.

The AFT is working with three lawyers to formulate a legal strategy. The West Virginia Education Association will also send a lawyer or two. Both organizations are expected to the lobby the board before its Nov. 20 meeting.

"Those people are going to try to appeal to the board one more time and present our arguments," Hale said. "We are trying to reason with them and trying to get them to rescind their policy. And we will see how that goes."

WVEA wants to see if there's some way to amicably resolve the issue and avoid litigation, said Jim Haviland, the organization's in-house attorney.

School board president Becky Jordon said she doesn't believe the upcoming meeting is going to change what the board has already decided.

In October, board members voted 4-1 to randomly test teachers and other school employees for drugs. Board members looked to the corporate world and decided the county's existing pre-employment drug screenings and its suspicion-based testing for all employees was not enough.

Critics said another pre-existing board policy that allowed the county to test teachers out of suspicion that they used or were under the influence of drugs would, if used, effectively address concerns about educators' potential drug use.

Robin Rector, the board's lone nay vote, also argued that the new testing policy did not treat teachers as professionals, would damage their morale and could invite lawsuits by teacher organizations and civil rights groups.

Now some board members who supported the random testing of teachers are asking that the school system's general counsel examine the legality of randomly testing students who drive cars to school and students who are put in one of the county's alternative schools.

The number of alcohol, tobacco and other drug violations increased by nearly 200 to 710 during the 2007-08 school year, according to data provided by Kathyrn Burgess, who manages the Safe and Drug Free Schools grant for the county.

A third were drug violations. The majority of the violations involved tobacco.

Jordon asked school attorney Jim Withrow to look into what it would take for the county to adopt a system to randomly test student drivers. Cabell County already tests high school athletes and student drivers. Mason County was expected to vote this week on a similar policy.

Another idea floated recently to randomly drug test students who are in the county's alterative schools could cross a legal line. The schools take students who have been in trouble at other schools, including for drug-related violations.

Board member Bill Raglin also asked Withrow to look into the idea of random testing so that if alternative schools should have a drug problem, testing would be available to the county.

It would be difficult to make the case for such testing, Withrow said.

Student drug testing is generally limited to students who participate in voluntary or extracurricular school activities - like sports and driving. Going to an alternative school, like going to a normal school, is not a voluntary activity.

Still, there are generally few violations in alternative schools, said Ed Durham, the county's principle of secondary alternative schools.

Students at the school are "searched a lot" and face a good deal of checks and balances to make sure they don't have drugs.

Raglin says drug use has now permeated every element of society and suggested that random tests, if they were legal, might be able to help students resist peer pressure.

He said, "If there was a possibility of them being tested, it might be a good reason to say 'No.'"

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