THEIR VIEW: Kanawha school board fails test on Constitution

By The West Virginia Record | Dec 31, 2008


Before the American Revolution, King George's soldiers could randomly search the home or business of any colonist for smuggled goods. The soldiers' legal authority to conduct the searches came from "writs of assistance."

These writs were extremely broad, giving the Crown the ability to rummage through any property for pretty much any reason. The writs contributed to the growing list of oppressions that eventually inspired the colonists to revolt.

The Founding Fathers had the writs in mind when they penned the Fourth Amendment to the Constitution.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall be issued, but upon probable cause," the Amendment reads in part.

Over the years, the courts have sought a balance between a person's protection against unreasonable searches and the ability of law enforcement to do its job. Generally, one's protection fades as the suspicion of wrongdoing rises.

Random drug testing is a particularly difficult challenge to the meaning of the Fourth Amendment.

Constitutional purists view warrantless drug testing as an illegal invasion, but many courts have found that such tests are legitimate when public safety is at stake. For example the courts have said you can drug test a railroad engineer.

But what about a public school teacher?

The Kanawha County School Board recently approved a random drug test policy for teachers. The teacher unions challenged the policy on constitutional grounds.

Each side got a chance to state its case during a hearing this week in federal court.

The school system argued that teachers and other school employees are in safety-sensitive positions, meaning students will be put at risk if an employee is high on drugs.

The teachers argued that the threat presented by a "stoned" employee is overblown, and that the random testing of an employee when there is no suspicion of drug use is unconstitutional.

Judge Joseph Goodwin wisely sided with the teachers, saying he did not hear any justification for the random testing. "Suspicionless, random drug testing in this case violates the Fourth Amendment," Goodwin said.

He issued a court order temporarily barring the testing program that is scheduled to go into effect Thursday. A full hearing will follow.

The Kanawha County school board members who want the random testing say they're only concerned for the children's safety. I'm sure that's true.

But the Founding Fathers had good reason to lay down a principle protecting citizens from an overly zealous government. It would be a mistake to undermine that principle for the sake of good intentions.

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