By Ashley Lopez
Florida Center for Investigative Reporting
A Florida judge made permanent a temporary ban on a state law requiring welfare applicants undergo drug testing prior to receiving benefits this week.
The ruling sided with Luis Lebron, who was represented by the American Civil Liberties Union of Florida. Lebron was a 35-year-old single father, Navy veteran and college student from Central Florida when he filed a lawsuit against the state after refusing to pay for a drug test in order to receive assistance from the state.
Lebron and the ACLU argued that suspicionless drug testing of recipients of Temporary Assistance to Needy Families (TANF) amounted to unconstitutional searches. Judge Mary S. Scriven of the United States District Court in Orlando agreed.
Judge Scriven had temporarily halted the policy not long after it was first signed into law by Gov. Rick Scott in 2011.
Scott had campaigned on the issue of welfare drug testing and has vowed to appeal the court’s decision yet again–even though it has had both legal and fiscal drawbacks.
While the law was in effect from July through October 2011, about 2.6 percent — or 108 of 4,046 people — tested positive for drugs, the most common being marijuana.
The state continued to argue that it warranted an exception to the Fourth Amendment to ensure TANF participants’ job readiness, to meet child-welfare goals and to ensure that public funds are properly used.
But in the Dec. 31 ruling, the court agreed with the 11th Circuit’s conclusion that “There is nothing so special or immediate about the government’s interest in ensuring that TANF recipients are drug free so as to warrant suspension of the Fourth Amendment. The only known and shared characteristic of the individuals who would be subjected to Florida’s mandatory drug testing program is that they are financially needy families with children. Yet, there is nothing inherent in the condition of being impoverished that supports the conclusion that there is a concrete danger that impoverished individuals are prone to drug use or that should drug use occur, that the lives of TANF recipients are fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.”
Florida passed the measure in 2011, and the case was being closely watched by several other states, including Georgia, which passed similar legislation in 2013 but found it dogged by legal challenges. State data in Florida also showed that the measure produced few results. Only 108 out of 4,086 people tested — 2.6 percent — were found to have been using narcotics. State records showed that the requirement cost more money to carry out than it saved.
But as the country emerged from the recession, numerous states, powered by the strength of Republicans in many legislatures, sought to make welfare or unemployment checks contingent on drug testing. That is despite a 2003 federal court ruling in Michigan that struck down drug testing for welfare recipients because it amounted to an illegal search.
“In Michigan a number of years ago there was a court decision that had a chilling effect on these kinds of proposals,” said Grant Smith, policy manager of the Drug Policy Alliance, an organization that advocates more liberal drug-use laws. “This new ruling should give pause. We have seen a number of proposals continue to be put forward across the country, but the writing is on the wall that requiring people to submit to drug testing for no reason other than being poor and in need of assistance is not going to pass constitutional muster. It’s not fair, it’s not cost effective, and it’s unreasonable.”
Arizona passed a drug-testing requirement in 2009. Nine more states, including Florida, have passed such laws since 2011. At least 29 states debated such measures in 2013, but only two of the bills passed.
In Georgia, the law’s rollout was delayed pending the outcome of the Florida legal challenge. In North Carolina, Gov. Pat McCrory, a Republican, vetoed such a law. Although the Republican-controlled legislature overrode the veto, the governor has continued to object to the requirement, which he called costly and ineffective.
The welfare drug testing law is just one in a series of laws that the state has defended in court since Scott took office in 2011. Many of the laws signed by Scott– much like TANF drug testing– have been challenged on constitutional grounds.
As Scott’s administration continues to fight for those laws in courts, it has racked up legal costs footed by Florida taxpayers.