Surprising no one, a federal judge in Orlando last week struck down a Florida law forcing applicants for the Temporary Assistance for Needy Families program to submit a urine sample and pay a $35 drug test fee that was to be refunded to those who passed. Judge Mary S. Scriven, a George W. Bush appointee, ruled that the law, which she temporarily blocked in 2011, violated the Fourth Amendment right to be free from searches and seizures without a warrant showing probable cause. She also rejected Florida’s novel argument that welfare recipients have no Fourth Amendment rights.

Employing unusually broad language, Judge Scriven held that “there is no set of circumstances under which the warrantless, suspicionless drug testing at issue in this case could be constitutionally applied,” because the law compelled drug testing based solely on the fact than an individual was applying for aid.

Howard Simon, executive director of the ACLU of Florida, which brought the case, said that “the courts are now signaling to politicians that they are not going to treat poor people as if they were exempt from constitutional rights.”

At least one of those politicians, however, is not giving up the fight. Gov. Rick Scott, a Republican who campaigned on the issue in 2011, released a statement vowing to file an appeal and demanding “a zero-tolerance policy for illegal drug use in families—especially those families who struggle to make ends meet and need welfare assistance to provide for their children.”

Florida passed its drug testing law shortly after Scott was elected, part of a wave of such legislation passed by Republican-dominated legislatures since 2009, including Arizona in 2009, Florida in 2011, Oklahoma and Utah in 2012, and Missouri and Georgia in 2013. North Carolina’s legislature passed a bill in 2013 that was vetoed by Republican Governor Pat McCrory, and then voted to override the veto, although McCrory insists he will not implement the testing without adequate funding.

Despite their insistence that high rates of drug use among the poor contribute to poverty and justify the blanket testing of welfare applicants, the experiences of Florida and other states have demonstrated exactly the opposite. Florida spent $115,000 to test 4,086 recipients from July through October 2011, yielding only 108 positive tests, a rate of 2.6%. Florida had to reimburse recipients who had lost their benefits $600,000. In the end, Florida lost $45,780 on the program. Other states found similarly low rates of positive test results, undermining their argument that the rights of the poor should be ignored as a way of helping them.

Noting the 2.6% rate, Judge Scriven concluded that the state had it all wrong: “In sum, there simply is no competent evidence offered on this record of the sort of pervasive drug problem the State envisioned in the promulgation of this statute.”

Going even further, Scriven wrote that if even Florida had been right and the poor actually did have a higher rate of drug use, placing them in a class of people denied constitutional rights would be dangerous.

“If persons in an economic demographic could be shown to have a higher rate of drug use, would all such persons in that economic group be subjected to drug testing?…[W]ould college students receiving governmental assistance to subsidize their education, for example, be subjected to random, suspicionless drug testing if it could be shown that drug use is demonstrably higher among college students? The Supreme Court's Fourth Amendment precedent would suggest not.” 

-Matt Bewig

To Learn More:

Florida Law on Drug Tests for Welfare Is Struck Down (by Frances Robles, New York Times)

Judge Rules against Drug-Testing Program for Welfare Applicants (Orlando Sentinel)

Is Drug Testing Welfare Applicants a Waste of Money? (by Matt Bewig, AllGov)

Federal Court Halts Florida’s Random Drug Testing of Welfare Applicants (by David Wallechinsky and Noel Brinkerhoff, AllGov)