11th Circuit Strikes Down Florida Law Mandating Drug Tests For Welfare Recipients
For the fourth time in three years, a Federal Court has ruled that Florida's law requiring drug tests for welfare recipients is unconstitutional.
In the latest of four rulings on the subject, a panel of the 11th Circuit Court of Appeals has sustained a District Court ruling finding Florida’s effort to mandate drug testing for welfare recipients to be unconstitutional:
A federal appeals court on Wednesday dealt another blow to Gov. Rick Scott’s crusade to conduct drug tests on welfare applicants when it upheld a lower court ruling that the practice was unconstitutional.
The unanimous ruling from a bipartisan panel of judges concluded that the state failed to show any evidence as to why it was necessary to force applicants seeking Temporary Assistance for Needy Families to surrender their constitutional rights as a condition of receiving the aid.
“We have no reason to think impoverished individuals are necessarily and inherently prone to drug use, or, for that matter, are more prone to drug use than the general population,” the court said in its 54-page ruling.
Proponents hailed the decision, which came just two weeks after the 11th U.S. Circuit Court of Appeals heard arguments in the case, and predicted it would have broader impact in protecting the rights of people receiving a wider range of government benefits — from Bright Futures scholarships to driver’s licenses.
“This should be the end of the road for the governor’s crusade,” said Howard Simon, executive director of the ACLU of Florida, which sued the state. “The opinion says that people cannot be forced to surrender constitutional rights as a condition of any government benefit — driver licenses, library cards, student loans and farm subsidies.”
The Scott administration is “reviewing the ruling,” said the governor’s spokeswoman, Jackie Schutz.
In his detailed ruling, Judge Stanley Marcus concluded that “citizens do not abandon all hope of privacy by applying for government assistance.” He said that “the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable” and that “by virtue of poverty, TANF applicants are not stripped of their legitimate expectations of privacy.”
Lawyers for the governor and the Florida Department of Children and Families argued that the drug tests were warranted for all TANF recipients because the state had a “special need” to protect children of welfare recipients who were using drugs and to ensure that TANF recipients were prepared to enter the work force.
But Marcus, who was first appointed to the bench by President Ronald Reagan, concluded, “the State has presented no evidence that children of TANF parents face a danger or harm from drug use that is different from the general threat to all children in all families. After all, the State acknowledges that drug use harms all individuals and families, but the State does not — and cannot — claim an entitlement to drug test all parents of all children.”
He also rejected the qualifications of a doctor offered up by DCF as an expert on welfare recipients and drug use.
“The State has presented no evidence demonstrating that drug testing saves a significant portion of TANF funds that could otherwise be spent on drugs,” the court ruled. Instead, the court cited a 2000 study done by DCF which showed that TANF recipients are less likely than the general public to use illegal drugs. During the three months the law took effect, 4,046 TANF applicants submitted to drug testing and only 108 — 2.67 percent — tested positive for drug use compared to 5.2 percent for the general public.
Simon called Scott’s policy “a shameless exploitation of the worst stereotypes and prejudices of the applicants for assistance,” and the ruling is a “repudiation of that exploitation.”
In a statement, Maria Kayanan, ACLU of Florida associate legal director, called the ruling a “resounding affirmation of the values that the Fourth Amendment of the U.S. Constitution … that none of us can be forced to submit to invasive and humiliating searches at the whim of the government, and that the Constitution protects the poor and the wealthy alike.”
This decision is just the latest, and perhaps the final, legal development regarding a law that was passed very soon after Florida Governor Rick Scott took office. Under that law, a wide swath of people receiving public benefits from the state would have been required to undergo periodic drug testing to remain eligible for benefits regardless of whether or not there was any kind of probable cause, or even reasonable suspicion, to believe that they have engaged in any such activity. Soon after the law went into effect, groups led by the American Civil Liberties Union and other organizations filed lawsuits against the law alleging that it was unconstitutional. As I argued at the time, while there was not a Supreme Court case dealing with this specific issue, a Supreme Court ruling on drug testing for political candidates as well as a Federal Court case out of Michigan both combined to present a failed strong argument that the Florida scheme was unconstitutional. On the practical level, these conclusions were seemingly substantiated when the first round of testing under the new law found that a mere 2% of those tested ended up testing positive for any kind of illegal drugs, a number which meant that any potential savings the testing was actually outweighed by the cost of the testing itself. Of course, this should not have been surprising considering that studies had long established that people on welfare are no more likely to be illegal drug users than members of the general population. As the legal challenge unfolded, the initial assessments about the law’s legal merits proved to be correct with first a Federal District Court Judge and then a panel of the 11th Circuit Court of Appeals granting an injunction against the enforcement of the law while the case was being decided. More recently, after a full trial the same Federal Judge who had granted the initial injunction ruled that the drug testing program was unconstitutional because the warrantless, suspicionless searches that the drug tests constitute violate the Fourth Amendment to the Constitution. That ruling, of course, was ultimately appealed to the 11th Circuit, which has now sustained the ruling of the lower Court judge.
The 11th Circuit’s reasoning in its opinion here largely and unsurprisingly tracks the opinion of Judge Scriven in the District Court, finding that the lack of any kind of articuable suspicion that the welfare recipient Plaintiffs in the case were engaging in illegal activity, and absent a warrant which could only be obtained based on probable cause, the state had no reasonable basis upon which it could sustain a program that quite obviously constitutes a search and seizure under the Fourth Amendment. Unlike, say, the mandatory drug testing that Federal law requires certain workers in the transportation industry to undergo on a randomized basis or in the wake of an accident that they are involved in, there is no reasonable argument that there is a threat to public safety here, for example, and the fact that studies suggest that welfare recipients are no more likely to be users of illegal drugs than the general public as a whole. Indeed, some studies suggest that recipients of public assistance are actually statistically less likely to use illegal substances than members of the public as a whole. Given all of this, and in light of the precedent noted above, there’s simply no way that a law such as this can be justified under the Fourth Amendment.
This decision comes at the same time that Republicans in other states are considering similar programs. During his re-election campaign, for example, Wisconsin Governor Scott Walker advocated a program that would basically be similar to the one that Florida passed into law. Next door in Michigan, such a program is in fact making its way through the state legislature and could become law before the end of the year. Absent some limitations on the testing regime, though, such as a provisions that say that it can only be implemented if there is some reason to believe that the individual recipient is using illegal drugs, it seems obvious that these programs would suffer the same legal fate as Florida’s has so far. The Florida case, meanwhile, is likely headed next to the Supreme Court, although it is unclear if the Justices would take the case up considering that there is not presently any kind of Circuit split on the issue. More likely, the Justices may decide to let this issue play out in the lower Federal Courts for awhile longer to see if such a split develops, which seems to be the strategy that it has followed in the same-sex marriage cases. While it’s always risky to speculate how the Court might rule if it did accept the case, though, my guess is that a law like Florida would have a very tough time even before the Court as presently constituted based upon how the Justices have ruled on Fourth Amendment rules in general, and these types of warrantless searches specifically. A program like this is no doubt politically popular, but as a matter of law they seem to be clearly unconstitutional, and if states don’t figure that out, the Court may find it necessary to step in and put a stop to the practice before it gets out of hand.
Here’s the opinion: