Unreasonable Suspicion

Drug Testing News

by Karen J. Gould

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act - better known as the welfare reform law, authorized states to impose mandatory drug testing on welfare recipients. So far, only one state is actively trying to do so: my home state of Michigan. A law passed by the state legislature in 1999 requires welfare recipients to submit to urine tests. Welfare applicants who refuse the testing would be denied benefits, and current welfare recipients who refuse the test would have their benefits terminated.

I use the future tense, because a temporary restraining order blocked the state from implementing the program, pending the outcome of a class-action lawsuit by the ACLU of Michigan, Marchwinski v. Family Independence Agency. The ACLU filed the suit on behalf of two welfare recipients and a Detroit area welfare-advocacy group, shortly after the law took effect in October of 1999. When the temporary restraining order was issued, the state sought to have the case dismissed, arguing that the ACLU's clients did not have standing to prosecute the action.

Last week, federal district court judge Victoria Roberts ruled that the ACLU's clients did indeed have standing, and that the case must go forward. No court date is set, but it's sure to be another case closely followed by advocates of the Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Background

Experts say that the incidence of drug use among welfare recipients is consistent with rates of drug use among the general population. In other words, to the State's knowledge, welfare recipients are no different than any other member of the general population who chooses to make use of some form of governmental benefits or subsidies, including tax credits, medical insurance, and scholarships. In still other words, there is no reasonable suspicion of drug usage among welfare recipients. Their only distinction is their lack of financial resources.

The Supreme Court has upheld the constitutionality of "suspicionless drug testing" by governments, but only under very narrow circumstances - if the employees are responsible for public safety, for example, or if the "population" to be tested had voluntarily engaged in activities in which they could expect their right to privacy to be diminished, such as high school athletes. In a case which was held to be unconstitutional, the Court found that running for office was not a sufficient "lowering of the expectation of privacy," nor was the potential harm of a drug-using politician sufficiently compelling to justify a requirement that all candidates for public office must submit to drug testing.

The ACLU's lawsuit refers to these rulings when it states:

"FIA recipients do not fit the description of any category of individuals previously subjected to governmental drug testing. They do not perform dangerous tasks like operating a nuclear power plant, driving a train, or carrying a firearm; they are not entrusted with sensitive governmental operations like drug interdiction or handling classified information. They have done nothing to lower their expectation of privacy."

Nothing, that is, except to be poor in Michigan.