Upholding an earlier lower court decision, the US 6th Circuit Court of Appeals in Cincinnati Monday struck down a Michigan law that required the drug testing of welfare recipients. The Michigan law, authorized but not required by the 1996 federal welfare reform law, was the most draconian of any state effort to make submission to drug testing a requirement for welfare payments. Although the Michigan law was passed in 1998, it has never been implemented. Instead, it has been blocked by an injunction issued by a US District Court judge in 1999.
The Michigan law, which applied only to poor families seeking assistance, required mandatory drug tests of applicants, with 20% of welfare recipients to be randomly tested every six months. Recipients who tested positive but refused drug treatment would be denied any benefits. Federal Judge Victoria Roberts, however, ruled the law unconstitutional, writing that it did not fit into "the closely guarded category of constitutionally permissible suspicionless testing," which generally requires a threat to public safety.
A three-judge panel of the 6th Circuit reversed Roberts last fall, writing that welfare recipients have a "diminished expectation of privacy" and were free not to accept benefits if they did not wish to be tested. But the full 6th Circuit Court of Appeals reviewed the case, with six judges siding with the state of Michigan and six voting to void the law. Under the court's rules, a tie vote means Judge Roberts' original decision was affirmed.
Michigan officials have not yet decided whether to appeal to the Supreme Court. Gov. Jennifer Granholm had criticized the law during her campaign last year, but then said she would implement the law if elected. A Granholm spokesperson told the Detroit News Wednesday that Granholm now supports drug testing of welfare recipients only when there is reasonable cause.
The American Civil Liberties Union Drug Policy Litigation Project, which led the legal attack on the law, hailed the ruling. In a Wednesday interview with the Free Press, project director Graham Boyd said the ruling should "send a message to the rest of the nation that drug testing programs like these are neither an appropriate or effective use of a state's limited resources."
The ACLU noted that when the state started a pilot drug testing project under the law, only 21 of 268 people tested positive -- and 18 of those were for marijuana.