Hawai’i Board of Ed refuses to go along with teacher drug testing
Hawai'i teachers have already received most, about 7%, of the pay raise they were promised in a new contract that also called for random drug testing. The drug testing has yet to begin, and Gov. Linda Lingle and education officials are engaged in a dispute over how to fund the program. The American Civil Liberties Union (ACLU) has called for the governor to retract what it said was a threat she made to withhold a final installment of the pay raises if the state Department of Education (DOE) doesn't fund the drug testing by the June 30 deadline. The governor’s spokesman Russell Pang said it was too early to say whether the administration would indeed deny pay raises if drug testing fell through. Pang insisted that drug testing is a provision of the contract and needs to be implemented for the contract to be effective. The ACLU, some members of the Board of Education (BOE) and the Hawai'i State Teachers Association all argue that the rest of the raise, an additional 4%, cannot be withheld by the governor. The dispute over whether Lingle could withhold pay raises began last week after the BOE voted 7-0 against paying for drug testing for teachers out of the DOE's more than $2 billion budget. “The governor has no legal basis for telling teachers that because the BOE doesn't have the funds for drug testing that they're not going to get their raises,” said Richard Miller, former dean of the University of Hawai'i Richardson School of Law. “I am not against teacher drug testing. But I'm against taking money away from the classroom,” said Board of Education Chairwoman Donna Ikeda, who voted against paying for drug testing. Ikeda said her understanding of the contract was that the pay increases and the drug-testing do not depend on one another. She said the board is requesting the Legislature consider its supplemental budget requests, including the $523,723 for establishing a drug-testing program. Lingle denied all of the DOE's supplemental budget requests, including drug testing, in her executive budget.
During contract negotiations, pay increases were granted in conjunction with a random drug testing provision. In the final weeks of contract talks in May 2007, union negotiators said Lingle inserted a non-negotiable random drug-testing provision into the contract, which angered many teachers. And then last week, the BOE voted not to fund the program, saying it would take money away from schools. The Lingle administration argues that the BOE has the ability to fund the drug testing. “The bottom line is, they need to manage their resources,” said Georgina Kawamura, director of the state Department of Budget and Finance. Kawamura also noted the DOE has an estimated $30 million in its operating budget at the end of the year that doesn't get spent. “At the end of the fiscal year, what they haven't spent from the operating budget, they are given an additional year to spend it. No other department has that authority,” Kawamura said. DOE officials, however, say the $30 million left over at the end of the year has been earmarked for specific school-level projects. “As a civil rights attorney, there are questions about the constitutionality of random drug testing,” said Board member Kim Coco Iwamoto. The ACLU has said that it is prepared to sue the state based on Fourth Amendment rights if it implements random drug testing of teachers. Roger Takabayashi, president of the Hawai'i State Teachers Association, said the Education Department and the union have been working on setting up the drug-testing program, as called for by the current teachers' contract. He said the union and the DOE are on track to have the program ready by June 30. “We are fulfilling our obligation in the contract for drug testing. It says procedures and protocols will be ready for implementation on June 30, 2008. We'll be ready,” Takabayashi said. The BOE may take up the issue again this month, since only seven of its 13 voting members were present at the last meeting, Ikeda said.
Source: Honolulu Advertiser, 2/2/08, By Loren Moreno
[Editor’s Note: For background, see below.]
NSBA School Law pages on ACLU opposition to teacher drug testing