Can teachers be subjected to random drug testing?

In December, a federal judge in West Virginia struck down a local school board's policy that called for random drug testing of teachers. The judge cited a Supreme Court ruling that teachers are not considered "safety-sensitive" employees, a classification that applies to air traffic controllers, nuclear power plant operators and pilots. In January, a Louisiana federal judge followed suit, striking down another local school district's policy of testing teachers who are injured on the job, whether or not drug use is suspected.

While the decisions break no new legal ground, they do turn the spotlight back on Hawaii's teacher drug testing policy, which has been put on hold since it was adopted almost two years ago (see here and here). Hawaii Governor Linda Lingle pushed though random drug testing as part of the state's 2007 contract with the teachers' union, which also included an 11 percent pay hike. But later, Hawaii teachers, backed by the American Civil Liberties Union, claimed that the state coerced them into approving the controversial measure, which they contend is embedded in ambiguous contract language. Since the pay raises have gone forward without the drug testing, the state is blaming teachers for an unfair deal.

Whether teachers' complaints about the negotiation process will hold up in court is debatable. Governor Lingle does have a legal leg to stand on. The Hawaii attorney general's office, in an opinion letter this summer, advised the state that because the drug testing was negotiated as part of a collective bargaining agreement, it could be upheld in both state and federal courts as constitutional.