On Point: Drug testing for welfare: A tricky issue

By Scott Forsyth

The Daily Record Newswire

Drug-testing of welfare recipients? Sounds like a good idea. It will enable states to identify persons needing special help to be work-ready, the goal of the 1996 reform of our welfare laws.

In fact, as part of the reform, Congress did authorize -- but not mandate -- states to test recipients of Temporary Assistance for Needy Families (TANF).

How to implement a program of drug-testing has bedeviled some of the states. First, there is the cost of the testing and treatment in these tight economic times. Second, there is the Fourth Amendment's prohibition of unreasonable searches and seizures.

The collection and testing of urine for the presence of drugs is considered a search. Consequently, government must have "some quantum of individualized suspicion" that a person has committed a crime to require her to submit to a test. Obtaining a warrant is part of the process.

The U.S. Supreme Court has made some exceptions to the individualized-suspicion rule "when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable," Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619 (1989).

So far, all special needs involve some element of public safety. Compare Skinner, supra, (testing of railroad employees following accidents upheld) with Chandler v. Miller, 520 U.S. 305 (1997) (testing of all candidates for state office struck down).

Once a government demonstrates a valid special need for a suspicionless-testing program, a court must balance the substantiality of the need against the invasiveness of the search to assess the program's reasonableness.

Most states try to develop evidence that a particular TANF recipient may be on drugs before they require the recipient to take a drug test. In 1999, Michigan took a different approach, deciding to randomly test recipients for drugs. Anybody who tested positive had to undergo treatment. Failure to do so resulted in the loss of benefits.

Michigan claimed that it had a special need in protecting children, a beneficiary of TANF, from abuse. Studies demonstrated a high correlation between substance abuse and child abuse.

A group of welfare recipients, represented by the ACLU, challenged the law and prevailed, Marchwinski v. Howard, 113 F. Supp.2d 1134 (E.D. Mich. 2000), aff'd 60 F. App'x 601 (6th Cir. 2003).

Ameliorating child abuse may be laudable but was not a purpose of the 1996 welfare reform, so held the court. Linking financial assistance to the amelioration of child abuse does not make the latter a special need. If Michigan could do so, then it could condition the payment of any public benefit to a parent or guardian of a minor, such as Medicaid or educational grants, upon the parent or guardian taking a random drug test. This result "would be dangerously at odds with the tenets of our democracy."

Michigan also argued that the plaintiffs had a minimal expectation of privacy because they did not have to apply for assistance. The court countered that the voluntariness of an application, if true, did not diminish the state's obligation to identify a special need.

For 12 years the logic of Marchwinski deterred other states from testing welfare recipients, absent individualized suspicion. On May 31, Gov. Rick Scott of Florida said to hell with Marchwinski and signed into law a bill that requires ALL recipients to undergo a drug test. If the recipient tests positive, they lose benefits for a year. If they complete a treatment program, the penalty is reduced to six months. Florida, unlike Michigan, will not pay for the treatment.

The only needs stated by the bill's supporters were to save taxpayer dollars and to protect families.

"It creates another reason why people will think again before using drugs," said one.

The supporters did not care that the cost of implementing the program may run as high as $8 million annually. They ignored the many studies showing drug use among welfare recipients to be no higher than within the general public. The intrusion of the test upon the privacy of the recipients did not matter.

The last point is surprising. Scott, for one, ran last year with the support of the tea party. He has now increased government regulation at a net cost to the state. Tea party enthusiasts should hold him accountable, but will probably give him a pass. Those bearing the direct burden of the regulation -- the poor -- are not members of the tea party.

The law takes effect July 1. Expect the ACLU to file a lawsuit challenging the law's constitutionality soon.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Fri, Jun 24, 2011

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