Collateral Sanctions

Mississippi Tea Party groups are busily collecting signatures for a ballot initiative that would require welfare recipients and state employees to undergo drug testing. The measure, officially known as Ballot Initiative #33, is part of a broader push by Mississippi Tea Partiers against "un-Constitutional welfare programs" and illegal immigration. The initiative would also require anyone receiving state benefits to prove his or her US citizenship.

While the umbrella Mississippi Tea Party is playing a role in supporting the initiative campaign, most of the energy behind it appears to be based in the Mississippi Gulf Coast 912 Project, an influential South Mississippi Tea Party group affiliated with conservative former Fox News program host Glenn Beck's national 912 Project.

The Mississippi Tea Party sent a December letter to legislators demanding that they take action to drug test welfare recipients, act against illegal immigrants, reactivate the legislature's un-American activities panel, and nullify a number of federal programs under the rubric of state sovereignty, among other proposals. When the legislature failed to pass welfare drug testing, Ballot Initiative #33 was the result.

"Initiative #33 would amend the Mississippi Constitution to require that persons receiving public assistance, as well as state contractors, subcontractors, and state employees, must undergo random drug testing," says the initiative's official summary. "Failing two drug tests results in loss of benefits. Persons not currently receiving public assistance must pass drug testing before receiving benefits. This initiative also requires that persons residing in the state illegally are prohibited from receiving public assistance or state salary of any kind."

The initiative, a proposed constitutional amendment, is broader than the failed bill it substitutes for. It also includes state contractors, subcontractors, and employees.

The Mississippi Gulf Coast 912 Project needs to collect 90,000 valid voter signatures by mid-October, which is the deadline for getting the initiative on the 2012 ballot. If organizers can't gather 90,000 signatures by mid-October, but can get over the top by the next deadline, mid-December, they could qualify it for the 2012 ballot.

The random, suspicionless drug testing of welfare recipients was thrown out by a federal appeals court as unconstitutional -- a violation of the Fourth Amendment's proscription against unwarranted searches -- when Michigan tried it a decade ago. Another such program went into effect July 1 in Florida, and will face a similar constitutional challenge. If Initiative #33 is ever enacted, Mississippi taxpayers will be the next to have to defend an already invalidated program.

Employers in Washington state can fire employees who fail a drug test, even if they have a valid recommendation to use medical marijuana, the state Supreme Court ruled Thursday. The ruling came in the case of a Bremerton woman who was fired from her job after testing positive for pot, although she had a recommendation to use marijuana for migraine headaches.

In the case, Jane Roe v. TeleTech Customer Care Management, the anonymous plaintiff was pulled out of a training class and fired in October 2006 because she failed a pre-employment drug test. Her attorney argued that the Washington state medical marijuana law implicitly required employers to accommodate medical marijuana use outside the workplace.

But in an 8-1 decision, the state Supreme Court disagreed. The majority noted that the state law explicitly allows employers to forbid on-the-job medical marijuana use, but says nothing about medical marijuana use outside the workplace.

"We hold that [the Washington Medical Use of Marijuana Act] does not provide a private cause of action for discharge of an employee who uses medical marijuana, either expressly or impliedly, nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy," wrote Justice Charles Wiggins for the majority.

But in his dissent, Justice Tom Roberts noted that under the medical marijuana law, qualified patients "shall not be penalized in any manner, or denied any right or privilege, for such actions." Roberts added that, "Roe seems to be exactly the sort of person the people intended to protect... Neither I nor the law would require employers to employ drug impaired workers. The law is intended to treat marijuana like any other medication."

If the state high court will not protect the rights of Roe, Roberts wrote, the legislature should step up and do so. "To that end, I urge the legislature to thoughtfully review and improve the act."

But that's no easy process. In California, which has seen a similar state court ruling gutting the employment rights of medical marijuana users, a legislative effort to provide a fix died in Sacramento last week.

The Chicago Housing Authority wants to require all current and future adult residents -- including senior citizens -- to pass a drug test. A positive drug test would result in an eviction notice for the resident.

The proposal is one of several changes to the CHA's Admission and Continued Occupancy Policy submitted by CEO Lewis Jordan. Jordan and other agency officials argue they need more tools to fight crime and drugs in the housing projects.

The American Civil Liberties Union accused the CHA of subjecting the poor to a double standard, while resident leaders said the proposal was humiliating.

"The ACLU opposes drug testing in the absence of suspicion as a condition of residency in public housing," senior lawyer Adam Schwartz told the Chicago Sun-Times. "From our perspective, drug testing without suspicion is humiliating. It's stigmatizing. There's a double standard here," he said. "All across our city and our country, when most of us who are in whatever income bracket rent housing, we don't have to take a drug test. This is an emerging one standard for poor people and another standard for everyone else."

"Singling us out for this type of humiliation is a slap in the face of what this whole 'Plan for Transformation' supposedly is about," Myra King, chair of the central advisory council of tenant leaders for all CHA housing in the city, told the Sun-Times. "CHA says they're doing this plan to make us privy to the same standards as any other citizen in any other community. If that's true, why are we the only citizens to be drug tested?"

Lewis's "Plan for Transformation" also includes eliminating the "innocent tenant defense," which allows residents whose relatives or guests committed a drug offense or crime of violence to avoid eviction if they can show they were unaware of the activity. In a 2002 case, the US Supreme Court ruled that housing authorities could evict innocent tenants, but they are not required to. Former CHA head Terry Peterson had reached an agreement with tenants that allowed the continued use of the defense if it could be proved in court.

Spokeswoman Kellie O'Connell-Miller defended the proposals, pointing out that several CHA mixed-income properties currently require drug testing. "These are policies to help strengthen and improve the safety of our public housing communities," O'Connell-Miller said. "We're constantly hearing from law-abiding residents that they want us to hold the non-law abiding residents more accountable. We're trying to tighten up our lease with some of these issues. Drug dealers won't come where there are no buyers. If you remove the folks who are interested in drugs, hopefully it will remove some of the problems," she said.

Making the policy system wide would apply it to some 16,000 families living in family and senior public housing. The CHA has not estimated the cost of the proposal, O'Connell-Miller said.

The proposals are open to public comment through June 16, with a public hearing set for Thursday. If the proposal is adopted, it must then be approved by the CHA Board and then the federal Department of Housing and Urban Development.

And then the CHA can spend good money fighting (and most likely losing), the inevitable legal challenges. The precedent here is the state of Michigan's 1990s law mandating the suspicionless drug testing of welfare recipients. It was rejected by the federal courts in 2003 for violating Fourth Amendment proscriptions against unreasonable search and seizure.

A Missouri bill that mandates the drug testing of welfare recipients and applicants if case workers have "reasonable suspicion" they are using illegal drugs has passed out of the legislature and is now headed for the governor's desk. It passed the House Tuesday on a vote of 113-34. It had passed the Senate last month.

The bill, House Bill 73, also known as the "TANF Child Protection and Drug Free Home Act," requires Temporary Assistance for Needy Families (TANF) case managers to report to the Children's Division if an applicant or recipient tested positive or refused to take a drug test related to employment or employment training. Caseworkers would also have to report to the division if they have "reasonable suspicion to believe that such individual is engaging in illegal use of a controlled substance."

Failure to take or pass a drug test would make the recipient ineligible for TANF benefits for two years. But people who fail the test could enroll in a drug treatment program, and benefits would continue during treatment. If the person completes treatment and doesn't test positive, the benefits would continue. A second positive drug test would make the person ineligible for benefits for two years, with no provision for a treatment escape clause. Family members of someone declared ineligible because of drug use could continue to receive benefits through a third-party payee.

Foes of the bill argued that the bill was possibly unconstitutional -- although its use of a "reasonable suspicion" standard may make that argument more difficult -- that the program will be costly, and that it's an attack on society's most vulnerable.

The bill "targets low-income individuals, particularly women with children, said Pat Dougherty of the Catholic Charities of the Archdiocese of St. Louis. "We have women who come to our program and who are successful, who are getting their lives back together, who are trying to get straight, and yet, you've got a penalty there," he told KMOX News Radio last month.

Sen. Maria Chapelle-Nadal (D-St. Louis County) said she was concerned about the costs connected with the drug tests. Legislative analysts in Missouri estimated the program would cost up to $2.3 million.

"In Florida, they did about 9,000 tests and spent more than $3 million, while only 36 people were convicted," Chapelle-Nadal said.

But now, the Show Me State's Republicans get to look tough if not necessarily fiscally smart.