The Hawaii State Teachers Association said yesterday it would accept "random" drug testing if it is limited to a select group of teachers, perhaps based on prior DUI convictions or a history of chronic absence.

The Lingle administration rejected the suggestion, saying it violates the contract teachers agreed to in June 2007, which called for random drug testing of the state's 13,500 public school teachers.

"They're trying to redefine what random is," said Jim Halvorson, state deputy attorney general.

The new contract included pay increases of up to 11 percent over 18 months, most of which have already taken effect.

The contract called for the Board of Education and the teachers union to "establish a reasonable suspicion and random drug and alcohol testing procedures applicable to all Bargaining Unit 5 (teachers) ... and implement such plan no later than June 30, 2008."

The deadline has passed, and no teachers have been tested.

HSTA officials yesterday said they continue to negotiate with the state Department of Education to reach an agreement on how drug and alcohol testing would work, but they will not agree to a system in which all 13,500 teachers are subject to random testing.

"You can randomly test pools of people if you have reason to test them," said Roger Takabayashi, president of the HSTA. "But if you take 100 people and you test them for no reason at all, then that would be against each individual's constitutional rights."

By limiting the pool for random testing to those with a prior history, union officials say, they are trying to avoid possible litigation over the constitutionality of random drug testing.

"The problem with what they are saying is that it doesn't comply with the contract," said Halvorson, the deputy attorney general. "The contract provision says all teachers."

Said Marie Laderta, director of the state Department of Human Resources Development: "It's not random. It's not even random in disguise."

Takabayashi said HSTA officials continue to negotiate the terms of drug testing and met with Department of Education officials at HSTA headquarters yesterday.

Takabayashi said lawyers have advised the union leadership that random drug testing of all teachers would be a violation of the Fourth Amendment of the U.S. Constitution, which protects against "unreasonable search and seizures."

"We want to make sure that whatever method is agreed to, it can withstand the constitutional challenge we know we're going to get," Takabayashi said.

"For example ... we're proposing testing those who have excessive absences. Or maybe those caught for DUI. What I'm telling you is that there needs to be reason for putting them in a pool to be tested. Not just everyone in general."

Laderta said the teachers union had previously proposed the "pool" idea during negotiations. But she said the state rejected the proposal.

"They don't want to do it (random testing), and perhaps they want to appear that they are trying to do something," she said. "But in fact they are reneging on something they promised to do."

On Friday, the state filed a complaint with the Hawai'i Labor Relations Board against the union, alleging the union has failed to negotiate the terms of the testing program in good faith.

The union said it has learned, since the contract was signed, that random testing is not consistent with state and federal constitutions.

"Today, both parties know much more about the legal issues surrounding drug testing that were not known at the time of the initial agreement," said HSTA executive director Mike McCartney in a Thursday letter to DOE superintendent Pat Hamamoto.

"We cannot knowingly agree to procedures that violate the state and federal constitutions. Any agreement of this type would subject the state and all of us to unnecessary litigation," McCartney wrote.