Outside the Beltway

Lawsuit Filed Against Florida’s Plan To Drug Test All Welfare Recipients

Doug Mataconis · Friday, September 9, 2011 · 9 comments

The American Civil Liberties Union has filed a lawsuit against the State of Florida to stop it from requiring welfare recipients from undergoing drug tests to maintain benefits:

A new Florida law that requires welfare recipients to pass a drug test violates their constitutional rights, the American Civil Liberties Union is charging in a lawsuit.

The suit asserts that the mandatory drug testing is a violation of the right against unreasonable search and seizure.

Florida Gov. Rick Scott signed the drug testing requirement into law in May, fulfilling one of his campaign promises.

Under Scott’s drug testing law, welfare applicants are required to pay for their own drug testing – about $30 to $35 – but are reimbursed if the tests are returned negative.

The ACLU suit was filed Tuesday on behalf of Luis Lebron, a 35-year-old Navy veteran and student at the University of Central Florida, who receives welfare.

“I served my country, I’m in school finishing my education and trying to take care of my son,” Lebron said in a statement released by the ACLU. “It’s insulting and degrading that people think I’m using drugs just because I need a little help to take care of my family while I finish up my education.”

The ACLU expands on the grounds for the lawsuit in its press release:

“This law violates more than the rights guaranteed by our Constitution – it violates basic American dignity and fairness by assuming that everyone who needs help is a lazy drug abuser,” said Howard Simon, Executive Director of the ACLUFL. “Ugly, disproven stereotypes make bad laws.”

By approving House Bill 353 (HB353), the Legislature and Governor Scott made Florida the first state in nation to require passage of a drug test for government assistance since a federal court in Michigan struck down a similar law in 2000 (Marchwinski v. Howard) because it violated the Fourth Amendment.

“Courts have allowed suspicionless drug testing by government in very few circumstances,” said ACLUFL Associate Legal Director Maria Kayanan and lead counsel in suit. “Those limited permissible circumstances involve areas in which public safety is at risk – testing railroad workers who operate dangerous equipment or border patrol agents who carry firearms and are involved in drug interdiction.”

The new law requires drug testing for every TANF applicant despite early results showing Florida TANF applicants use drugs at a lower rate than the population as a whole. Data from the Florida Department of Children and Families (DCF), which is responsible for implementing the law, shows that since testing began in July, 98% of TANF applicants taking the test passed.

A Florida pilot program in 1999-2000 which drug tested TANF applicants found a “failure” rate of about 5%. According to the 2009 National Survey on Drug Use and Health, performed by the U.S. Substance Abuse and Mental Health Services, 8.7% of the population nationally over age 12 uses illicit drugs.

“Floridians don’t lose their Constitutional rights because they need temporary assistance,” said Randy Berg, Executive Director of the Florida Justice Institute which is co-counsel in suit with the ACLUFL. “It doesn’t matter how popular it is to single out a group of people to make a political statement, the rights guaranteed by the Constitution apply to everyone – even poor people – and everyone has a right to be free of suspicionless government searches.”

The ACLU’s case relies heavily on Marchwinski v. Howard, a 2003 decision from Michigan in which a Federal Court found a similar Michigan law to be unconstitutional. In that case, the District Court relied heavily on Chandler v. Miller, a 1997 Supreme Court case in which the Court struck down a law that required candidates for state office to pass a drug test in order to get on the ballot. In Marchwinski, the District Court said:

If the State is allowed to drug test FIP recipients in order to ameliorate child abuse and neglect by virtue of its financial assistance on behalf of minor children, that excuse could be used for testing the parents of all children who receive Medicaid, State Emergency Relief, educational grants or loans, public education or any other benefit from the State. In all cases in which the State offers a benefit on behalf of minor children, the State could claim that it has a broad interest in the care of those children which overcomes the privacy rights of the parents. Indeed, the query posed by Justice Marshall in his dissent in Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971), is a pertinent inquiry to make here:

Would the majority sanction, in the absence of probable cause, compulsory visits to all American homes for the purpose of discovering child abuse? Or is this court prepared to hold as a matter of constitutional law that a mother, merely because she is poor, is substantially more likely to injure or exploit her children? Such a categorical approach to an entire class of citizens would be dangerously at odds with the tenets of our democracy.

Id. at 342, 91 S.Ct. 381.

Upholding this FIP suspicionless drug testing would set a dangerous precedent.

The District Court’s holding was ultimately upheld by the Sixth Circuit Court of Appeals. Given this case, and the Supreme Court’s holding in Chandler, it strikes me that the ACLU has a fairly strong case here, as I discussed in more detail in my post last week.

Given the moves by others states to replicate what Florida has done, this will be an important case to watch.