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Tuesday, October 7, 2008
Drug testing: Violation of contract, not rights
By Thomas E. Stuart @ 7:55 PM :: 3225 Views

by Thomas E. Stuart

William S. Richardson School of Law professor of law emeritus and former dean Richard S. Miller claims the HSTA drug testing agreement is a “violation of basic rights”. His claims, published in the Honolulu Advertiser September 12 are wrong for several reasons.

First is his attempt to sabotage the binding integrity of contract law itself. A contract instrument was voluntarily signed by the organization that legally represents teachers in collective bargaining, the Hawaii State Teachers Association as well as those representing the state Department of Education and the Board of Education.

All signatories agreed to the provision calling for the random drug testing of teachers. Teachers themselves voted to ratify this contract by a 61% margin. Now we are asked to simply ignore this binding instrument and walk away from it in the evident belief that those who sign contracts can cherry pick those provisions with which they will comply, ex post facto. If this kind of chaos is unleashed, ALL contracts are null and void -- we might as well do away with them.

Second is his assertion that efforts to promote drug free schools and protect children, Governor Lingle craftily devised what he terms “an overtly cynical strategy [that] placed the HSTA in the untenable position of having to accept random drug testing in violation of teachers’ constitutional rights or give up sorely needed raises . . . at the expense of hardworking educators’ fundamental rights”, as though teachers were a privileged class above the law, endowed with special rights ordinary citizens do not enjoy.

There is no such thing as a “right to teach”. Teachers who imagine their rights will be violated by having to comply with random drug test protocols that have been commonplace in the real world workplace for decades are perfectly free to pursue other lines of work . . . or seek teaching positions outside the DoE.

Third, during the critical bargaining session last year, the HSTA team was fully capable of turning down the drug test proposal and walking away from the negotiations table. Instead HSTA -- evidently unsure of bargaining member sentiment on this topic -- punted and without making a recommendation for or against the contract told us teachers that it was up to the membership to decide. We DID decide and HSTA signed the contract on our behalf.

Fourth and perhaps the most sinister part of Miller’s article is his cold blooded and utterly casual dismissal of the safety of children entrusted to teachers who may or may not be using or trafficking in drugs, to wit: “There is simply no reason to think that Hawai`i’s teachers ever have or would imperil students through drug involvement.” Newspaper accounts alone give the lie to this soulless, blood chilling assertion.

On a personal note, I shall very much regret it if, because of the irresponsible (and politically motivated) actions of the BOE, DOE and HSTA, our contract is declared null and void and my pay is garnished until the new (and most welcome) raises I have received are recovered, but know this: my anger will not be directed at the Governor.

It is not her fault that denizens of BOE-DOE-HSTA snake pit have egregiously defaulted on their responsibilities by actively working to undermine the very contract THEY signed for all sorts of specious reasons . . . and in the process have imperiled children.

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