By Melissa Pettitt

A recent review of Kentucky school district polices on drug testing of teachers show an inconsistency in policy across the state.

With no state mandate for drug testing requirements, unless there is a disciplinary history, policies can vary from district to district, according to Brad Hughes, the spokesperson for the Kentucky School Boards Association.

“There is no requirement under Kentucky law that teachers have to be drug tested,” Hughes said. “There are a number of districts that do (drug test) certified employee, which includes teachers, either as a pre-employment or as random drug testing.”

The lack of state law on the issues allows for individual school districts to set their own standards for when to drug test teachers. For example, Christian County Public Schools does not conduct random drug testing of teachers, according to Heather Lancaster, director of communications. However, Todd, Hopkins and Muhlenberg county school districts do allow for random drug testing.

“The courts have restricted drug testing of teachers when there is not suspected drug use,” Lancaster said in an email, referring to the CCPS policy. “Drug testing is administered if we have a suspicion and evidence of suspected drug use or if an employee transports students as required by law.”

The only mandate by the state regarding drug testing of teachers came in 2006 (KRS 161.175) which states that teachers who have been disciplined because of misconduct involving illegal use of drugs must submit to random or periodic testing for a period not to exceed 12 months from the date of disciplinary action.

There is no mention of pre-employment drug resting in the CCPS polices, however they do adhere to the post-discipline drug testing policy mandated by the state.

Hughes noted that any school district may drug test a teacher if there is reasonable suspicion. He also said that positions such as bus drivers, mechanics and individuals who have student safety requirements are subject to periodic drug testing.

The Nov. 30 arrest of a Hopkinsville Middle School teacher, Sarah K. Cost, on drug charges have only heightened public interest in whether school teachers should be subject to random drug testing, or whether CCPS should have had reasonable suspicion to drug test Cost. She was charged with being under the influence of a controlled substance while she was on school property during the school day.

CCPS is not alone, however, in their decision to not conduct random drug testing – in fact, they fall in line with the majority of the school districts in the state. Hughes said the Kentucky School Boards Association works with 172 out of 173 school districts in the state on their polices and of those, only 53 school districts allow for random drug testing of teachers. The other school district, Oldham County Schools, also does not conduct random drug testing of teachers, according to their policies. Pre-employment drug testing is conducted by 21 school districts, Hughes said.

Todd County School District is one of the local districts to retain the random drug testing policy. According to Edwin Oyler, assistant superintendent, “administrators, teachers, classified support staff and bus drivers may be selected for random drug testing.”

Todd County School District policy allows pre-employment drug testing, reasonable suspicion drug testing and random drug testing for what is called “safety-sensitive” positions which include: principal, assistant principal, teacher, itinerate teacher, teacher aide, substitute teacher, school secretary and bus driver.

Safety-sensitive positions are considered “positions where a single mistake by an employee can create an immediate threat or serious harm to students or other employees and expose the Board (of Education) to potential liability,” according to Todd County School Districts policies. A handful of school districts throughout Kentucky classify teachers and administrators as safety-sensitive positions and allow for random drug testing on those grounds.

Courts indeed have ruled both ways in determining whether Fourth Amendment rights were violated through random or suspicionless drug testing of teachers, but according to Hughes, there is nothing that specifically prohibits it and in fact, it has been upheld.

One Kentucky case that is favorable toward districts who wish to conduct random drug testing is Crager v. Board of Education of Knott County, Kentucky. In that 2004 case, a U.S. District Court upheld suspicionless drug testing by the Knott County Board of Education. That case successfully cited a 1998 Tennessee ruling, Knox County Education Association v. Knox County Board of Education, which upheld the school district’s rights to conduct random drug testing.

However, a more recent case filed by a North Carolina teacher in 2009, Jones v. Graham County Board of Education, ruled that a board policy mandating random drug and alcohol testing for all employees of the school district violated laws against unreasonable searches. Another 2009 case, West Virginia Education Association v. Kanawha County Board of Education, resulted in the same outcome of the court ruling.

“The courts have upheld both the random drug testing and the pre-employment drug testing,” Hughes said, but also noted it’s up to local school boards as to whether they want to put those rules in place.

“Usually when a district doesn’t do something that’s not mandated, it’s because it hasn’t been an issue,” Hughes said. “That’s a generalized statement, but it is fairly true. If there is no requirement that (schools) do something, and they haven’t had an issue, that is generally speaking why districts may not have initiated a policy.”

The question school districts are faced with is whether the school's interest in safety outweighs a teacher’s right to privacy, particularly when considering the safety and well-being of students.

The American Civil Liberties Union is against random drug testing on the grounds that, “random drug testing may also reveal extremely sensitive personal information, such as medical conditions, prescription drug use or pregnancy and can produce an unacceptably high rate of false-positives, resulting in suspicion cast on entirely innocent individuals,” according to their website.

However, the 1998 Knox County, Tennessee ruling pointed out given teachers’ status and responsibilities, they should have a lower expectation of privacy, saying “teachers and administrators are not some distant societal role models” and that “directly influencing children is their job.”

Cost of such drug testing, if there are no grounds for suspicion, is another factor that school districts must consider, particularly as funding for schools declines.

It is an issue that the U.S. Supreme Court has never ruled on, and so far has been left to the discretion and judgement of each individual school district.