Should N.C. teachers face drug tests? Some say yes.

KILL DEVIL HILLS, N.C.

As three Dare County teachers prepare for a hearing on drug charges this week, questions are being raised about why teachers are not subject to drug tests as their students are.

A random drug and alcohol testing program has been in place in Dare County Schools since 2005 for students in grades seven through 12 who participate in "privileged activities" - extracurricular clubs, interscholastic athletics and campus parking.

School attorney Richard Schwartz, senior partner with the Raleigh firm Schwartz & Shaw, said the North Carolina Court of Appeals ruled in June that requiring random drug tests of teachers violated Fourth Amendment protections in the Constitution and a similar provision in the state constitution.

"The school system has drug testing for people in safety-sensitive positions like bus drivers," Schwartz said, "but very, very few school systems have ever tried to implement suspicionless drug testing for teachers."

Joseph Tyson, 27, of Kill Devil Hills, a teacher of exceptional students at First Flight High School, is charged with misdemeanor possession of marijuana and drug paraphernalia, driving a motor vehicle with no operator's license, and transporting a container of alcoholic beverage in the passenger area.

First Flight High School teachers Adam Herman, 49, of Nags Head and Corey Hutcherson, 32, of Kill Devil Hills were also charged with misdemeanor possession of marijuana and paraphernalia. The three are due in District Court for a hearing on Tuesday.

The Supreme Court has upheld random drug testing for students if it is limited to use of privileges, Schwartz said.

"You have a right to attend school," Schwartz said. "If you don't want to submit to random drug testing, then you don't have to be on the team, or you don't have to drive."

The school district's annual program report for 2008- 09 showed that 82 percent - or 1,848 - of the student population was eligible to be tested. Students are tested up to three times. In 2008- 09, of the 1,641 who were tested, there were 11.6 percent who were positive or refused the first test; 1.6 percent were positive on the second test; and 1.2 percent were positive on the third test.

If the initial urine test is positive, the parents, but not the school, are notified and provided with referral information. A follow-up test is mandatory in 30 to 90 days. In the meantime, the student can continue the privileged activities if a doctor's note is provided by the parents to the testing company.

If the second test is failed, the school is informed and students are required to comply with counseling or treatment requirements if they want to continue with privileges. If a third test, in 30 to 90 days, is failed, privileges are revoked for at least a year.

In 2006- 07, the first full school year the program was in place, there were 84 positives or refusals - which count as positive - out of 1,175 students tested - 7.1 percent.

The district believes the program - at a $42,336 cost for 2008- 09 - has proved to be an effective deterrent, said Nancy Griffin, Director of Secondary Instruction for the school district.

Most of the positive tests are for marijuana, she said, followed by some alcohol, opiates and prescription drugs. The effectiveness of the program shows up after the first positive, she said, when intervention comes into play.

"You can see that the rate of the second positives is much, much lower," Griffin said.

Harper Robinson, a 19-year-old Colington Harbour resident who graduated from First Flight High School last year, said he was subjected to random drug tests seven times in the four years he attended the school. Only the last test taken one month before he graduated was positive, he said.

In general, he said, students resent the tests. It might help keep some kids out of trouble, he said, but often the ones who really do have problems know how to get around the tests by "detoxing."

Robinson said that if there's going to be random drug testing in the schools, it should include teachers.

"I really thought it was unfair to students," he said. "I feel like if it's out of the school, it shouldn't be their business."

Catherine Kozak, (252) 441-1711, cate.kozak@pilotonline.com