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Veteran, ACLU Challenge Florida Welfare Drug Test Law [FEATURE]

Submitted by Phillip Smith on (Issue #699)

Florida's new law requiring applicants for the Temporary Assistance to Needy Families (TANF) program to take and pass a drug test in order to receive benefits is being challenged by the American Civil Liberties Union of Florida (ACLUFL). The group filed a class-action lawsuit in federal district court in Orlando Tuesday arguing the new law was unconstitutional and seeking a temporary injunction to block its implementation.

Under the law, which passed Florida's House and Senate in April and May respectively, applicants can be denied public assistance for a year if they fail the drug test and denied for three years if they fail a second drug test. Persons who complete drug treatment can regain eligibility, and the children of people denied benefits can receive funds through a designated trustee.

drug testing kit
"It's our view that not only is this program unconstitutional and illegal, but it is a public policy that rests on ugly stereotypes," said ACLUFL executive director Howard Simon at a Wednesday morning press conference.

The lawsuit, Lebron v. Wilkins, names a Central Florida man, Luis Lebron, as the lead plaintiff. Lebron, a Navy veteran, single father, and University of Central Florida student who is looking for work, was denied TANF benefits after refusing to submit to a drug test. Lebron, who also cares for his disabled mother, did accounting and payroll work in the Navy and in the private sector before returning to college. He is expected to graduate with an accounting degree in December.

"Florida's new law assumes everyone who seeks public assistance has a drug problem," said Lebron. "They don't know that I'm in school right now so I can get a good job to provide for my son and mother, and it feels like they don't care. I have to prove to them that I'm not breaking the law. It makes me sick and angry that for no reason at all and no suspicion, I have to prove I'm not using drugs. The Fourth Amendment is part of the Bill of Rights, and it says no searches without probable cause."

The pivotal question, Lebron said, is whether the searches are reasonable. "Searches must be based on individualized suspicion," he noted. "In the Navy, I swore an oath to defend the Constitution. Now, I'm asking for the Constitution to defend me."

Florida Gov. Rick Scott (R) championed the new welfare drug testing law, arguing that welfare recipients used drugs at a higher rate than the population at large and that the law would save Florida taxpayers money. A number of similar bills have been filed in other states as well, and rumblings of Congressional hearings on the proposal have been heard inside the Beltway as well.

But so far the numbers have failed to borne out Scott's claims about welfare recipients or budget savings. A 1996 study of alcohol and illicit drug use by the National Institute on Alcohol Abuse and Alcoholism found that welfare recipients' use rates to be the same as the population at large. And according to Florida's Department of Children's Services, only about 2% of TANF applicants have tested positive for drugs in the new program so far. At that rate, the state will arguably save a few tens of thousands of dollars each year in a program that is budgeted at $168 million a year. But even those savings are debatable, given that it is difficult to factor in the costs of administering the program -- or defending it against legal challenges or individual claims of false positives.

The one clear winner in the welfare drug testing program is Florida's drug testing industry. Each TANF applicant must take a drug test at a cost of $30-35 and pay for it out of his own pocket. If the test comes back negative, the state reimburses the applicant. The net result is a transfer of funds from the TANF program to drug test providers.

But the ACLUFL lawsuit does not rely on a cost-benefit analysis. Instead, it relies on the argument, vetted in both federal appeals courts and the Florida courts, that suspicionless drug testing violates the Fourth Amendment's proscription against unreasonable searches.

"Our legal claim is straightforward and should come as no surprise to the state of Florida," said Maria Kayanan, the lead attorney in the case. "The only state in the country to try this in the past failed miserably. Throughout the session, legislative staff warned the legislature that this law raised legal challenges."

Kayanan was referring to Michigan, which enacted a law requiring suspicionless drug testing of welfare recipients in the 1990s. That law was overturned as unconstitutional by a federal district court judge in a decision upheld by the US 6th Circuit Court of Appeals.

"This is bad policy, it's a mess, and we hope the court recognizes that suspicionless drug testing absent a clear showing of risk to public safety violates the Fourth Amendment," she said.

Federal courts have held that government-imposed drug testing absent particularized suspicion is unconstitutional except in very limited circumstances. The courts have carved out exceptions allowing drug testing in occupations where the public safety is at risk, for law enforcement personnel involved in drug enforcement, and for high school students engaged in extracurricular activities, but that is as far as the federal judiciary has been willing to bend the Fourth Amendment to date.

"This is a slippery slope," said Randy Berg, executive director of the Florida Justice Institute, which is co-counsel in the case. "While implemented here to go after people in need of public assistance to protect their families, who is next? People who apply to get a fishing license? Contractors who contract with the state? It is very important that people see this as a slippery slope. That is why we have stepped forward to challenge this unconstitutional bill enacted by the legislature."

"After the Michigan law was struck down, a number of states have started rekindling this idea, but Florida was the first state to enact this," said Simon. "But this public policy that the legislature adopted at the urging of the governor is based only on ugly stereotypes and talking points. He keeps saying that taxpayers have a right to know their money is not being used to subsidize drug addiction. But this method is unconstitutional, and we are confident it will be found unconstitutional again."

In response to a question echoing a commonly heard plaint, Simon explained why workers in the private sector must sometimes submit to drug testing when welfare applicants do not.

"The government is bound by the Constitution and private employers are not," he pointed out. "Things that may be appropriate in the private sector are impermissible when done by the government. The governor is also a lawyer, but he must have slept through constitutional law."

"I served my country, I'm in school finishing my education and trying to take care of my son," Lebron said. "It's insulting and degrading that people think I'm using drugs just because I need a little help to take care of my family while I finish up my education."

Now, a federal court in Florida will decide if requiring Lebron to submit to a drug test, is not only insulting and degrading to him, but unconstitutional. With efforts to impose similar laws on welfare applicants and people seeking unemployment benefits underway in a number of other states and possibly Congress, this Florida case will have ramifications reaching far and wide.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


James St. John (not verified)

So when is the ACLU going to fight for my right to get a job without a drug test??? And don't give me thatstuff about it being a private busines, they wouldn't test if some government agency didn't make them test applicants.
Wed, 09/07/2011 - 5:09pm Permalink
borden (not verified)

In reply to by James St. John (not verified)

James, I hate private sector drug testing as much as I hate drug testing within the government. But the fact is that it is different, and the law on it is different.

ACLU actually has done work to try and beat back private sector drug testing too, by advocating and by publishing information about how ineffective drug testing is:

Wed, 09/07/2011 - 6:31pm Permalink
Moonrider (not verified)

In reply to by James St. John (not verified)

Private sector drug testing is driven as much by insurers as by government regulations.  Though, it is likely true that the insurers are mainly motivated by government's lies about drugs and drug use.

Fri, 09/09/2011 - 3:32am Permalink
Duncan20903 (not verified)

In reply to by Moonrider (not verified)

When the wife and I bought this house in 2002 we decided that life insurance was called for, "just in case." Being aware that a urine test was required for significantly lower rates and previous to discovering synthetic urine, we quit enjoying cannabis for almost 6 weeks. Got tested, policies issued, USAA sent us a copy of our results, no test for inert cannabis metabolites which I found most annoying. They tested for cocaine and nicotine metabolites. Not all insurers think that cannabis is a health hazard. USAA isn't exactly a company that takes chances either.

Yes Virginia, we do take a break from enjoying cannabis when there are more important things to deal with. People that think that people who enjoy cannabis are strung out addicts are living in fantasy land.

Fri, 09/09/2011 - 3:49pm Permalink
Fred Thomas (not verified)

**I began reading this article and was for the STATE PASSED LAW of drug testing for TANF benefit eligibility.**

All drugs stay in a persons system for no more than a couple of days if not only for hours. Those that use/abuse and still apply are knowledgeable enough to know how to get around a drug test, especially urine. I disagree with the point of the tests "singling out those living in low-income communities and disproportionately impacting people of color". I don't understand how testing for drugs could single out anyone or place them in any particular group other than the group they are already in by applying for TANF benefits. The people an applicant sees around them in the TANF application office are the same people in their group. Everyone has to wait forever and jump through the same hoops to get denied just as equal as the next.

I read, "Federal courts have held that government-imposed drug testing absent particularized suspicion is unconstitutional except in very limited circumstances. The courts have carved out exceptions allowing drug testing in occupations where the public safety is at risk, for law enforcement personnel involved in drug enforcement, and for high school students engaged in extracurricular activities, but that is as far as the federal judiciary has been willing to bend the Fourth Amendment to date". Chances are those on the other side of the desk at the TANF application office are drug tested...why? They aren't law enforcement personnel involved in drug enforcement or high school students engaged in extracurricular activities or ARE they putting public safety at risk? If they are putting the public at risk it must be by issuing drug violating applicants benefits.

I find drug testing could weed out THOSE FEW THAT DO abuse the system to support their habit and while being a reasonably good idea, my views have changed and I find drug testing for TANF eligibility would be a harder hit to my state's already dwindling budget. But I do believe and support the need of TANF benefit eligibility reform.  

Thu, 09/08/2011 - 3:07am Permalink
Manetti (not verified)

The stated charge of $35.00 to $40.00 is outrageously high. Major clinical laboratory chains commonly contract with large private employers and such governmental institutions as the military services for half that price or less.

It is noted in the article that only 2% of TANF applicants test positive.  It is pointed out in a letter above that the time that common drugs of abuse remain at detectable levels in the system is very short; generally that is true, but marijuana (cannabis) and its metabolites bind to body fat and can be detected by common drug tests for up to several weeks after ingestion. 

That being said, a user of cocaine based drugs such as crack, opioids and amphetamines would be negative after a week or so of abstinence. 

Then, it is a matter of avoiding the substances before the test, and producing a negative result. Unannounced, random testing would produce a significantly higher percentage of positives in the group being examined; that is not possible since the test is required during the application process and is known to be scheduled during that period.

Make no mistake, those who use drugs are well versed in the knowledge about drug half-lives and detection limits, far more so than the normal man on the street and even some medical professionals.






Thu, 09/08/2011 - 4:19am Permalink
Moonrider (not verified)

In reply to by Manetti (not verified)

At the construction company which hubby retired from, the cost of drug tests was $64 each, the company paid for the tests, and paid those who were "randomly" chosen for the test at their regular rate, and even overtime if they'd already worked a full shift (not sure how "random" it really was, hubby got tested 6 or 7 times each year and some didn't ever have to be tested, but he always made certain he was on overtime when he went in for the test -- it pissed him off that he appeared to be singled out and that was his form of revenge).  He's been retired for a few years, now, and as most costs go up, not down, I expect it costs that company even more now.  The government does demand that all truck drivers be tested at twice the rate of other employees, which is kinda strange as most of the road construction accidents are due to heavy equipment operators who don't have the double testing rate imposed on them.

Fri, 09/09/2011 - 3:47am Permalink
DebbieT (not verified)

I've been required for many, many years to take drug tests as a condition of employment in the private sector of corporate America. That doesn't indicate the employer assumes most employees take drugs, just that they don't want employees who take illegal drugs on the books, so to speak. Same with any assistance recipients, in my mind. I don't assume any person does or doesn't take drugs, I just don't want my taxpayer dollars going to any assistance recipient who does. Their requirements for receiving welfare should be the same as most people who are employed. I think all politicians and government workers should be required to pass drug tests, also. It's not a matter of being biased against any person or group. 

Thu, 09/08/2011 - 12:09pm Permalink
Paul Ronco (not verified)

In reply to by DebbieT (not verified)

>> I just don't want my taxpayer dollars going to any assistance recipient who does.


Well, tough. If you don't like America and its freedoms to live without your private life being investigated by the government at every turn, then leave. I'd prefer it if my roads weren't used by people who were alcoholics, either. Doesn't mean we should set up breathalyzers on every street... and that's really saying something when you consider that alcoholic drivers actually kill people. Drug testing applicants without probable cause is unconstitutional, period end of story goodbye.

Fri, 09/09/2011 - 1:31am Permalink
Duncan20903 (not verified)

In reply to by DebbieT (not verified)

Quite simply because it's none of anyone's business. One of my favorite activities in life is minding my own business, I sure wish I could get the Know Nothing prohibitionists to give it a try.

When I hear an innumerate person railing against providing a safety net for people because they "don't want to pay for blah, blah, blah" it really does make my blood boil. There's lots and lots of things which this government does which I don't care to pay for. What the hell makes you think that your wants and desires should have any bearing on this question? I've never heard a peep out of you and your fellow innumerates about the trillion with a T dollars that the U.S. borrowed to squander on the epic failure of public policy which we call the war on (some) drugs. I never hear you complain about the $55-60 billion per year that the U.S. has to borrow to keep that debt current. I never hear you people complain about the fact that because of the wanton fiscal mismanagement and subsequent pillaging of the OU.S. Treasury by the Dork President and his faithful ward Dick, that we're going to be paying interest for decades to come on money squandered decades ago. I also never hear the Know Nothings demanding that certain people be tested for drinking alcohol, and it is easily demonstrable that drinking alcohol addiction may be the most wholly debilitating drug available.

You people should be ashamed of yourself, and you could really benefit from enrolling in a remedial course of 3rd grade mathmatics, because it's obvious that you have problems with addition and subtraction. You people are stepping over dollars to pick up dimes.

Fri, 09/09/2011 - 4:08pm Permalink
Charles Patric… (not verified)

I don't have a problem with marijuana as long as the people make sure that they and or their children etc are taken care of such as food,medical help etc.Now as far as using cocaine,heroin,meth and prescription pain pills being boughten and abused then ya,I have a problem with that big time.They actuallt spend a whole lot more paying to get their hands on the prescription pain pills more than anything else.The prices they have to pay street dealers for most of these pills are staggering in the amoubnt thats cgarged by the dealers.Pills such as axy's,ms contin or morphine sulfate and other pills o for about a dolare per mg so it takes very little to shoot thru any amount of moeny when buying these pills.Percostes are also high up on the lsy,loratabs which wrere also bgi in demand has slacked off some in favor of the percocets instead,Why that is,I have no idea as loratab 10's were always big nd in demand.Now their not as much so when compared to percocets and to that I have yet to figure out as to why this is.I do know that if we were to legalize marijuana for adult use nation wide that it would put a a very huge and major dent in the sales and demand for pain pills.It would also virtually almost shut down the mexican cartels because their bread and buter lies wht the smuggleing and selling of marijuana to our ountry.Heroin for the most part pretty mcu arrives here via the overseas shipping inustry.Cocaine is pretty mcu brought into the country mainly by it being smuggled into Florida by the jamaican drug possy's for the most part.The prescription pain pill epedemic is dome right here in house per say.Total legalization of marijuana there fore would pretty mch almost shut down the mexican drug cartels.Of course there will always be a demand for the really bad drugs but as i mentioned earlier here that thge majoriy of them are a very small portion of the cartels buisness

Thu, 09/08/2011 - 6:30pm Permalink
Moonrider (not verified)

In reply to by Charles Patric… (not verified)

might hurt the cartels (and those dangerous youth gangs who are now in even small town America -- my rural county has 22 of them according to our Sheriff) and drastically reduce their income and customer base, but it won't end them, completely.  If we truly want to end the cartels (and street gangs) then the only way to do that is to legalize ALL currently illicit substances.  It doesn't matter that you don't approve of some of those substances, it is absolutely unconstitutional to criminalize the use of any substance or product and prohibitions don't work, they only make things worse.

Fri, 09/09/2011 - 3:57am Permalink
McGarnagle (not verified)

I was a bit surprised when I first heard about this as to how many people I knew that supported it. The way I see it, if I lived in Florida and had some of each paycheck going to assist others in need against my will... Well I would be awful pissed if the time came where I needed that same assistance and had to deal with drug testing while all those I had been helping had not. Maybe the problem is the belief that this "temporary assistance" is not so temporary, and that may be true in some cases. But I would guess that many of the people to be tested under this law have jobs or had jobs and paid handsomely for this safety net so I don't think it's right to pull it out from under them as way to coerce them to change their lifestyle.

Sun, 09/11/2011 - 12:04am Permalink
P Palmer (not verified)

I am not a drug user, but I took the drug tests without complaint when the company I worked for (before I retired) required them. If many people who w-o-r-k for companies to e-a-r-n a paycheck are required to have random drug tests to continue to w-o-r-k there, then what is wrong with non-working folks taking drug tests to continue their regular "paycheck" (that the working folks are also paying for)?

Once again, the ALCU makes a judgment and an attack based on someone who whined to them about "Unfairness." Life is unfair. Just ask anyone who is working one or two or three jobs and still can't live above the poverty level. There are many forms of "Unfairness" that the ACLU never touch because they don't seem to be interested in them.  

How does it work that Congress gets an automatic raise every year?   They have to vote to not receive a raise! Meanwhile, military retirement pay and social security benefits have not received a raise for three years. My 80-year-old friend "lives" on $801.00 a month. Can you do that? 

The one that really is unbelievable (and do unfair it defies explanation) is that when a senator or representative in Washington no longer holds that position, they continue to receive their salary for the rest of their lives.  REALLY??? R    R      

Why doesn't ALCU go after those problems?





Mon, 09/19/2011 - 2:33pm Permalink

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