School drug-test case heads to federal court

By Davin White
Staff writer

CHARLESTON, W.Va. -- A lawsuit over random employee drug testing in Kanawha County schools is moving to federal court.

The move came at the request of school board lawyers.

On Nov. 26, the American Federation of Teachers-West Virginia filed the lawsuit in Kanawha Circuit Court against the school board.

Jim Withrow, general counsel for the school board, said the case was moved because lawyers for the teachers union argued that a new drug testing policy violates the Fourth Amendment of the U.S. Constitution and other federal laws.

A hearing in that case had been scheduled for Wednesday in Kanawha Circuit Court, but was canceled a day earlier.

A hearing date in U.S. District Court has not been set, Withrow said Thursday afternoon. He does not expect the AFT's lawyers will try to remand the case back to circuit court.

He also does not anticipate a second lawsuit will move to federal court, as lawyers in that case did not make federal arguments. On Dec. 5, employees of the American Civil Liberties Union and the West Virginia Education Association filed the second lawsuit in Kanawha Circuit Court. The case has been assigned to Kanawha Circuit Judge Louis Bloom.

AFT-West Virginia official Rosemary Jenkins said she hopes a preliminary hearing in federal court occurs before the holidays.

Both the AFT and WVEA seek an injunction before the drug testing policy goes into effect Jan. 1.

"We're patiently awaiting a hearing date," she said.

Lawyers for both teachers unions have filed motions in court to intervene in each other's case. Likewise, the Metro 911 governing board voted unanimously Wednesday to intervene on behalf of the school board.

The Metro 911 center employs about 90 people, all of whom are subject to random drug tests, Director Carolyn Karr Charnock has said.

Under the policy, the school system next year would randomly test the urine of 832 employees, or one in four of those 3,326 workers it considers safety sensitive.

Both sides seek a definition of who is a safety-sensitive employee, as a 1990 state Supreme Court ruling found that random drug tests in private industry applied only to those workers.

School board members, who approved random drug tests by a 4-1 vote on Oct. 15, define at least 45 types of employees as safety sensitive. The list includes teachers, coaches, counselors, custodians, aides, principals, Superintendent Ron Duerring and other top county administrators, and plumbers, electricians and most maintenance workers.

Robin Rector was the only board member who voted against the new policy. Board members Pete Thaw, Bill Raglin, Becky Jordon and Jim Crawford voted for it.

Reach Davin White at davinwh...@wvgazette.com or 304-348-1254.

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