JURIST Guest Columnist Frank Barile, St. John’s University School of Law Class of 2013, is the author of the fourth article in a 15-part series from the staffers of the Journal of Civil Rights and Economic Development. Barile explains the negative impact of a new Florida law on welfare law and policy…

The US is on the brink of what could be a watershed moment for welfare law and policy. Florida and the American Civil Liberties Union (ACLU) are currently engaged in litigation regarding the constitutionality of a Florida law that, if upheld, would require all applicants of Temporary Assistance for Needy Families (TANF) to consent to and pay for drug testing. Nearly two dozen other states are considering similar proposals. These laws have garnered substantial public and political support — even Republican presidential hopeful Mitt Romney called the law an “excellent idea,” despite a federal trial judge’s holding that “there is a substantial likelihood” that Florida’s law is unconstitutional.

Arguably the most tragic aspect of these laws is their tendency to perpetuate the stereotype of the poor being lazy, dependent drug abusers who are all “milking” hard-earned tax dollars for drug money. Unfortunately, the only thing that has been routinely “milked” is the stereotype itself — mostly by politicians and supporters of these hurtful and degrading policies for the purpose of drumming up public support. However, the most recent statistics in Florida have found that the state’s TANF population was actually using drugs at a rate much lower than that of the Florida population at large, and there is no reason to think that the results would be significantly different elsewhere. So why the continued perpetuation of this falsehood?

The answer is simple, really: this misconception needs to be true in order for Florida — and potentially other states that enact such laws — to withstand a constitutional challenge in a court of law. In order to prevail on Fourth Amendment grounds, a state must show that its policy of mandatory drug testing is warranted by the existence of a “special need” — a circumstance that has only been found to exist when “public safety is genuinely in jeopardy.” Frankly, without evidence that TANF applicants use drugs at a higher rate than the general population, let alone at a rate great enough to constitute a concrete danger to public safety, there is no reason why Florida’s law and similar laws should survive a constitutional challenge.

The special needs exception to the Fourth Amendment is what separates certain government employees from the rest of the population with regard to drug testing, and it is generally the answer to the popular question: “If I have to take a drug test for my job, why shouldn’t somebody who receives government handouts have to take a drug test too?” Under the special needs exception, if your government job requires you to carry a gun, fly an airplane, drive a bus or operate heavy machinery, the government is constitutionally allowed to ask you to take a drug test and with very good reason. But what the government may not do is require you to take a drug test simply because you have fallen on hard times and cannot afford to put a hot meal on your child’s plate. The same constitutional rights that prevent the government from drug testing farmers who receive agricultural subsidies, college students who receive grants and scholarships, senior citizens who receive Social Security benefits and business owners who receive tax credits, apply with equal force to applicants for public assistance. The degree of protection afforded by the Fourth Amendment against suspicionless government searches does not vary depending on how much money a person makes.

Proponents of such laws risk making those who ask their government for help even more vulnerable to the effects of poverty, thereby increasing the likelihood that the economy will continue to suffer. Instead of supporting policies that impose barriers to employment and independence, states should be adopting measures that seek to build bridges to such goals. For example, “screen-and-refer” methods, such as those in place in New York, Maryland and Idaho, have proven to be more accurate, less degrading and less costly than across-the-board drug testing. These screens are typically administered via pencil and paper and also seek to identify alcohol abuse and other mental health problems — problems which would be undetectable through a standard urinalysis. Other states such as New Jersey have implemented an intensive case management referral system wherein each substance-dependent client receives an individualized treatment plan according to his or her needs and meets with a case manager weekly.

In July 1996, US President Bill Clinton challenged Americans to view the welfare system “not as a chance to demonize or demean anyone, but instead as an opportunity to bring everyone fully into the mainstream of American life.” The popularity of laws that treat the indigent class as if it suspects they are drug abusers is proof not only of the fact that this country has failed to meet President Clinton’s challenge, but proof that we are still quite far from it. Stigmatization and exclusion are not the answers. States should instead be adopting programs that focus on rehabilitation and independence. In doing so, they would make a positive and lasting impact on the lives of impoverished individuals and their families, while setting this country back on the path towards economic prosperity and social equality.

Frank Barile is the Executive Notes and Comments Editor of the Journal of Civil Rights and Economic Development. His work experience includes internship positions with Vishnick McGovern Milizo LLP and the Honorable Denis Hurley of the US District Court for the Eastern District of New York.

Suggested citation: Frank Barile, Taking Drug Tests Out of the Welfare Equation, JURIST – Dateline, Sept. 17, 2012, http://jurist.org/dateline/2012/09/frank-barile-welfare-policy.php.