BY KATHERINE CLEMENTE– Just as 2013 drew to a close, a federal judge struck down Florida’s welfare drug testing law. Judge Mary Scriven of the United States District Court for the Middle District of Florida held that the law was an unconstitutional violation of the Fourth Amendment protection against unreasonable government searches. The law required all applicants requesting Temporary Assistance for Needy Families (“TANF”) to submit to mandatory urine drug tests. Although these families were among the “poorest of the poor,” applicants were required to pay for the $35 tests out-of-pocket. If the tests came back negative, Florida reimbursed the applicants.
Governor Rick Scott has maintained that the urine tests are necessary to assure that poor children aren’t raised in households where drugs are present. Nonetheless, Judge Scriven concluded that “there is no set of circumstances under which the warrantless, suspicionless drug testing at issue in this case could be constitutionally applied.”
This lawsuit arose shortly after the law was passed, when Luis Lebron, a Navy veteran and single father, applied for temporary assistance to support his then 4-year-old son in July of 2011. Lebron, who is also the sole caretaker of his disabled mother, filed suit when informed that he would be forced to an invasive search without individualized suspicion or cause. Lebron was represented by the ACLU of Florida and the Florida Justice Institute.
Judge Scriven issued a preliminary injunction putting the law on hold in October of 2011, after which Scott appealed. In February of 2013, a three-judge panel on the Eleventh Circuit Court of Appeals affirmed Judge Scriven’s ruling, agreeing that drug testing TANF applicants amounted to an unreasonable government search. The Eleventh Circuit later rejected Scott’s request for a full court review of the case.
Back at the district court, Scott’s counsel argued that TANF recipients should fall within a “special interest” exception to the Fourth Amendment, maintaining that welfare applicants are more likely than the general population to use drugs. The district court rejected this argument, noting (1) the State failed to demonstrate that TANF recipients used drugs more frequently than the general population, and (2) even if the State had demonstrated this, creating such a class of people exempt from constitutional protections could be dangerous. Judge Scriven wrote:
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? Even if such suspicionless testing as proposed by the State were limited to those persons receiving state funds, would 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.
Judge Scriven’s words underline what was perhaps most troubling about this law. We would like to think that the Constitution protects all individuals regardless of economic status or need. When a state targets its most vulnerable citizens by forcing them to submit to invasive searches—without individualized cause or suspicion—in order to receive much needed government assistance, it is not only troubling from a basic human rights perspective, but it might very well be unconstitutional after Judge Scriven’s ruling.
The ruling came as a blow to Scott’s administration, which urged the Florida legislature to pass the law in 2011. Scott has stated that the State will appeal. As ACLU of Florida Associate Legal Director Maria Kayanan stated, while Scott “certainly [has] the right to an appeal,” it might be unavailing. This is especially likely considering that the State’s arguments were already rejected during en banc review at the Eleventh Circuit. The Eleventh Circuit wrote:
There is nothing so special or immediate about the government’s interest in ensuring that TANF recipients are drug free so as to warrant suspension of the Fourth Amendment. The only known and shared characteristic of the individuals who would be subjected to Florida’s mandatory drug testing program is that they are financially needy families with children. Yet, there is nothing inherent to the condition of being impoverished that supports the conclusion that there is a “concrete danger” that impoverished individuals are prone to drug use or that should drug use occur, that the lives of TANF recipients are “fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.”
(emphasis in original). It is certainly heartening when the Constitution trumps a discriminatory law, and the courts make the right call. However, it will be interesting to see how this plays out on appeal.
