Bluefield Daily Telegraph, Bluefield, WV

State News

September 12, 2011

Capital Focus: W.Va. governor race revisits drug testing debate

CHARLESTON, W.Va. (AP) — West Virginia already allows for the sort of drug testing of teachers called for by gubernatorial candidate Bill Maloney, but the testing of welfare recipients that he also advocated has been a thornier issue both for this state and others.

The Morgantown Republican says his daughter was tested for her new teaching job in North Carolina. Speaking at a Wednesday debate in Wheeling, Maloney said West Virginia needs to drug-test teachers. Acting Gov. Earl Ray Tomblin, the Democratic nominee, said after the debate that he’s not philosophically opposed to the idea.

The state’s county school systems can test teachers for drugs before they’re hired, according to groups that represent educators. Teachers can also face testing under other circumstances, such as when an administrator has a reasonable suspicion of drug abuse.

Both the West Virginia Education Association and the state’s chapter of the American Federation of Teachers support such policies.

“We agree with pre-employment testing,” said Judy Hale, president of AFT-WV. “We don’t want people in the classroom who are abusing drugs.”

Kanawha County, the state’s largest school district, adopted a drug use prevention policy in 2007 that provided for testing in six situations, including pre-employment and for reasonable cause. But it revised that policy the following year to include random drug testing. Hale’s group sued, and the WVEA later joined that legal challenge.

A federal judge in 2009 blocked the random testing provision as “an unconstitutional excess that threatens the fundamental freedom from unreasonable searches.” The Kanawha County school board unanimously voted later that year to repeal the provision.

“Random drug testing absolutely makes no sense, when you can drug-test under other circumstances,” said WVEA President Dale Lee. “Random drug testing is a costly way of possibly never testing anyone who actually has a drug problem.”

West Virginia does not have a statewide policy mandating pre-employment drug testing for teachers, Department of Education spokeswoman Liza Cordeiro said, though it does require it for school bus drivers. Citing provisions of a federal law governing transportation employees, that policy also allows for random, post-accident, and reasonable suspicion drug testing. Federal courts have upheld random testing for jobs that involve “extraordinary safety interests.”

But while counties can require some testing of teachers for drugs, it’s unclear how many do. Martha Dean, executive director of the West Virginia Association of School Administrators, said she believes that teachers have been tested under the reasonable suspicion provision. But Dean also said that she was unaware of any counties that were testing all new hires.

Some lawmakers in recent years have proposed requiring all school employees statewide to take drug tests before they’re hired. But at least some of these bills would also mandate random drug testing. They have proved to be non-starters.

Other states have wrestled with the random testing issue. Hawaii, which has allowed reasonable suspicion testing since 2007, dropped an attempt earlier this year to require random testing. Teachers in an Illinois district held a strike last month to oppose a random testing policy proposed there. A North Carolina appeals court struck down a random testing policy adopted by one county 2009.

In Florida, Gov. Rick Scott has mandated drug-testing for state employees. The American Civil Liberties Union is challenging that policy, and last week it also sued to block the law he championed that drug-tests new welfare recipients.

During Wednesday’s debate, Maloney said that those on welfare “all need testing.” His campaign spokeswoman, Michelle Yi, said later that Maloney considers the drug problem a complicated one that requires both law enforcement and treatment to address. Malone is willing to consider all possible solutions, including testing, Yi said.

Legislatures in more than half the states, including West Virginia, have debated testing for people receiving Temporary Assistance for Needy Families over the past decade. Florida’s law requires people who apply for welfare benefits to pay for drug testing. Those who test positive are denied benefits, while the state reimburses those who pass.

While not requiring random testing, Missouri enacted a law in July that calls for welfare recipients and applicants to be screened for illegal drug use, and tested when there’s reasonable cause. But until Scott signed Florida’s law in May, no other state had enacted one in the wake of court rulings that halted a 1999 Michigan program. As the federal judge later ruled in Kanawha County’s case, the Michigan policy was deemed to violate the U.S. Constitution’s ban on unreasonable searches.

Proponents of such testing argue that it aims to ensure that taxpayer dollars help children and families, and aren’t diverted by a recipient’s drug habit. Opponents say such policies wrongly single out groups of people, and they also cite the potential price tag. While Scott has promoted Florida’s law as a money-saving measure, a study by Idaho officials earlier this year found that testing welfare recipients would cost more than it would save in benefits denied to offenders.

Following Wednesday’s debate, Tomblin told The Associated Press that “for people in responsible places, it would not hurt to have some random testing.” Campaign spokesman Chris Stadelman later cited the 2009 Kanawha County ruling, and said Tomblin has no intention to challenge that decision.

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Lawrence Messina covers the statehouse for The Associated Press. Follow him at http://twitter.com/lmessina

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