Teachers have already received most — about 7 percent — of the pay raise they were promised in a new contract that also called for random drug testing.

The drug testing has yet to begin, and Gov. Linda Lingle and education officials are engaged in a dispute over how to fund the program.

The American Civil Liberties Union yesterday called for the governor to retract what it said was a threat she made last week to withhold a final installment of the pay raises if the state Department of Education doesn't fund the drug testing by the June 30 deadline.

Lingle spokesman Russell Pang said it was too early to say whether the administration would indeed deny pay raises if drug testing fell through. Drug testing is a provision of the contract and needs to be implemented for the contract to be effective, Pang said.

The ACLU, some members of the Board of Education and the Hawai'i State Teachers Association all argue that the rest of the raise — an additional 4 percent — cannot be withheld by the governor.

The dispute over whether Lingle could withhold pay raises began last week after the Board of Education voted 7-0 against paying for drug testing for teachers out of the DOE's more than $2 billion budget.

Reacting to the vote, Lingle suggested the pay raises for the 13,500 public school teachers may not go into effect unless the state BOE and DOE paid for the random testing by the June 30 deadline, as outlined in the current teachers' contract.

"The governor has no legal basis for telling teachers that because the BOE doesn't have the funds for drug testing that they're not going to get their raises," Richard Miller, former dean of the University of Hawai'i Richardson School of Law, said at an ACLU press conference yesterday outside the governor's office.

In a letter to Lingle, the ACLU argued that, "Your all-or-nothing interpretation of the labor agreement lacks legal merit. If the Board of Education or any other state entity blocks funding for teacher drug testing, the rest of the contract, including your promise to pay teachers' salaries, remains full force."

Education officials say there is still plenty of time to meet the contractual deadline, but insist that the governor or the Legislature come up with the money to pay for it.

"I am not against teacher drug testing. But I'm against taking money away from the classroom," said Board of Education Chairwoman Donna Ikeda, who voted against paying for drug testing out of the DOE's $2 billion budget.

Ikeda said her understanding of the contract was that the pay increases and the drug-testing do not depend on one another.

"We would never jeopardize the teachers' pay raises," she said.

She said the board is requesting the Legislature consider its supplemental budget requests, including the $523,723 for establishing a drug-testing program. Lingle denied all of the DOE's supplemental budget requests, including drug testing, in her executive budget.

"It's possible the Legislature could, if it wanted to, include it in the budget," Ikeda said.

A majority of teachers last year ratified a two-year contract that granted a 4 percent across-the-board pay increase in July 2007. A salary-scale step increase of 3 percent in January for some teachers was included in the contract. Both of those increases have been reflected in teacher pay, said Fay Ikei, personnel director for the DOE. Another 4 percent increase is scheduled for January 2009.

The current contract raised starting pay for new teachers from $39,901 to $43,157. For teachers with about 15 years of experience, a master's degree and some additional credit hours, annual pay will increase from $59,566 to $66,359 by the end of the contract. For the most experienced teachers with more than 33 years of experience, pay increased from $73,197 to $79,170.

During contract negotiations, pay increases were granted in conjunction with a random drug testing provision. In the final weeks of contract talks in May 2007, union negotiators said Lingle inserted a non-negotiable random drug-testing provision into the contract, which angered many teachers. And then last week, the Board of Education voted not to fund the program, saying it would take money away from schools.

The Lingle administration argues that the Board of Education has the ability to fund the drug testing.

"The bottom line is, they need to manage their resources," said Georgina Kawamura, director of the state Department of Budget and Finance.

Kawamura said the DOE has an estimated $30 million in its operating budget at the end of the year that doesn't get spent.

"At the end of the fiscal year, what they haven't spent from the operating budget, they are given an additional year to spend it. No other department has that authority," Kawamura said.

DOE officials, however, say the $30 million left over at the end of the year has been earmarked for specific school-level projects.

"When the administration suggests we should use our carryover funds ... the schools already have a plan for how to use that money," said Clayton Fujie, deputy superintendent of schools. "If we're going to fund it, it means the money is going to be taken from somewhere else."

Board member Kim Coco Iwamoto said the question is whether money should be "diverted from meaningful programs to pay for a fear-based program."

"As a civil rights attorney, there are questions about the constitutionality of random drug testing," Iwamoto said.

The ACLU has said that it is prepared to sue the state based on Fourth Amendment rights if it implements random drug testing of teachers.

Roger Takabayashi, president of the Hawai'i State Teachers Association, said the Education Department and the union have been working on setting up the drug-testing program, as called for by the current teachers' contract. He said the union and the DOE are on track to have the program ready by June 30. But he acknowledged that questions remain about where the money will come from.

He also said the pay increase and the drug-testing are separate agreements and don't depend on each other.

"We are fulfilling our obligation in the contract for drug testing. It says procedures and protocols will be ready for implementation on June 30, 2008. We'll be ready," Takabayashi said.

The BOE may take up the issue again this month, since only seven of its 13 voting members were present at the last meeting, Ikeda said. But a new vote on the issue can only be called by one of the seven members at the previous meeting.

Reach Loren Moreno at lmoreno@honoluluadvertiser.com.