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North Dakota Senate committee scrutinizes school drug testing bills that critics label unconstitutional

West Fargo Republican Sen. David Clemens testifies in favor of his bill requiring school districts to drug test their employees Tuesday, Jan. 29, 2019. John Hageman / Forum News Service

BISMARCK — A North Dakota Senate committee scrutinized two bills requiring drug tests for school board members and school employees Tuesday, Jan. 29, proposals that critics warned would be costly, unnecessary and unconstitutional.

West Fargo Republican Sen. David Clemens, the chief backer of the bill requiring random drug tests for public school employees, said it was meant as a “safeguard to eliminate drugs from our schools.” He said his work on the Senate Human Services Committee has exposed him to substance abuse issues among the state’s youth.

“I’ve heard numerous reports also (that) children are happy to get to school because of the life they have at home,” he told the Senate Education Committee. “If we can provide a better atmosphere for the children, I’d be all for that.”

Clemens’ bill would require all 178 public school districts in the state to implement a policy for random drug tests of administrators, teachers, coaches, ancillary staff and others, with the districts covering the cost of the tests. It would require random tests of at least 10 percent of all school district employees every year and for every job applicant.

Employees who fail more than two random drug tests would be fired under the legislation.

But the bill, along with another subjecting school board members to random drug tests, conflict with constitutional protections against unreasonable searches and seizures, said Amy De Kok, legal counsel for the North Dakota School Boards Association. She said there are exceptions for “safety-sensitive” positions, such as school bus drivers.

“Simply put, across-the-board, suspicionless drug testing is unconstitutional unless the subject positions meet the special needs exception,” she said in prepared testimony. Absent that exception, a government employer may legally test employees “only if it has a reasonable suspicion that an employee is engaging in drug use or abuse while on the job.”

Private employers have more freedom to drug test their employees, De Kok said.

Regarding the school board drug testing bill pushed by Belcourt Democratic Sen. Richard Marcellais, De Kok said the U.S. Supreme Court struck down a similar Georgia state law requiring drug testing for all state office candidates in 1997. Moreover, she said the one-sentence bill leaves unanswered questions about consequences for board members who test positive for illicit substances and who would pay for the screenings.

Neither bill provides a funding source to pay for the tests.

De Kok said her organization is not aware of any widespread drug abuse among school personnel or board members in North Dakota.

“I think it’s unconstitutional and I wonder about the intrusiveness,” said Tioga Republican Sen. David Rust, a retired school superintendent who is a member of the committee.

The committee didn’t take action on either bill immediately after Tuesday’s hearing.

John Hageman

John Hageman covers North Dakota politics from the Forum News Service bureau in Bismarck. He attended the University of Minnesota in the Twin Cities, where he studied journalism and political science, and he previously worked at the Grand Forks Herald and Bemidji Pioneer.  

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