The Role of Public Policy in the Suspicionless Drug Testing of Welfare Applicants

JURIST Guest Columnist John McAvoy, Widener University School of Law Class of 2013, explains how public policy affected the outcome of Lebron v. Wilkins...

The Power of Public Policy

The notion of drug testing welfare recipients has recently become a highly publicized and debated issue. Newspapers and blogs across the country have helped fuel this debate by examining the policy considerations, which lend either strong support or extreme opposition to the legislation. The American people have expressed strong opinions on the topic via social media outlets. Recently, a Facebook "chain meme" has brought even more attention to the proposed legislation. The meme has helped turn legislation affecting a relatively small percentage of the American population into a hot-button issue. Legislators in three dozen states have responded in the past year by proposing drug testing for people receiving welfare benefits.

Supporters of such legislation believe it is nothing more than one additional eligibility requirement for the receipt of public funds. For many Americans, it is impossible to understand why people who work for their money are required to take drug tests, while those getting handouts from the government are not. On the other hand, critics believe such laws not only single out but discriminate against the poor.

Constitutional Framework: The Fourth Amendment and Drug Testing

Challengers to laws requiring all applicants for welfare benefits to submit to a suspicionless drug test believe that the legislation violates the Fourth Amendment's prohibition on unreasonable searches and seizures. The US Supreme Court has chiseled out specific exceptions to this once overbroad individual right against unreasonable searches and seizures. The specific exception relevant to suspicionless drug testing is based on the government's "special need" for the search or seizure.

Under the "special needs exception," if a government proposal is able to satisfy a five-part standard it falls within the Fourth Amendment's ambit and is therefore constitutional. Specifically, the exception requires that: (1) the government action in question must be considered a "search" within the context of the Fourth Amendment; (2) the search must be reasonable; (3) the extent of the invasion on the individual's privacy must be minimal; (4) the governmental interest served by the proposal must be legitimate; and (5) the privacy interest of the individual must be balanced against the government interest to ultimately decide whether the search is constitutional.

How Public Policy is Framing the Constitutional Analysis

In October 2011, the constitutionality of Florida's legislation mandating suspicionless drug testing was examined in federal district court. Florida is considered to be at the forefront of such legislation. Public policy was examined under the fourth prong of the special needs exception; namely, the government's asserted interest. In Lebron v. Wilkins, the American Civil Liberties Union (ACLU) brought suit hoping to block the implementation of Florida's new law. The plaintiff, who claimed to never have used illegal drugs, refused to submit to urinalysis because he believed that this requirement was unreasonable when there was no reason to believe that he used drugs. Judge Mary Scriven agreed and issued a temporary injunction blocking the implementation of the law.

Lebron turned on whether the governmental objectives advanced were "substantial." The state introduced five public interests closely tied to the federal welfare statute, known as Temporary Cash Assistance for Needy Families (TANF): (1) ensuring that TANF funds are used for their dedicated purpose; (2) protecting children by ensuring that its funds are used to feed children and not feed parental drug habits; (3) ensuring that funds are used in accord with TANF's goal of getting beneficiaries back to work; (4) ensuring that children are kept off drugs; and (5) ensuring public policy. Despite the fact that each of these objectives standing alone could potentially be enough to meet the special needs standard, Scriven rejected the state's arguments, which she characterized as "laudable" but lacking presence in Florida's law.

Florida's law has not only met but exceeded the requirements of the special needs exception. The first special need advocated by the state and harped on in Scriven's opinion involves the objective of combating drug use among people receiving governmental assistance. To support this objective, the state introduced a plethora of studies and statistics indicating that welfare recipients are more likely to abuse controlled substances. This "objective" amounts to little more than a policy argument to which Scriven happens to be opposed [PDF]: "[T]hose welfare recipients who screened and tested positive for the use of illicit substances were found to be just as likely to work and just as likely to use social service benefits as those who screened and tested negative." Scriven's opinion dwelled on the first special need objective advanced by the state and ignored the remaining arguments offered for why states may wish to ensure that welfare recipients are drug free.

The four remaining special needs arguments are significantly less controversial, etched not in discussions of class bias or discrimination but in congressional intent. TANF reform focuses on two key concepts: protecting children and empowering parents to get back on their feet. It is well documented that drug abuse by parents contributes to child abuse and neglect, as well as a propensity for their children to abuse drugs. If the government hands money over to a parent for a child's protection without first qualifying that the child is in the hands of a sober and suitable parent, then the government is ignoring the very purpose of TANF assistance. Moreover, the Florida law at issue is also consistent with the second major objective of TANF and the third special need offered by the state: getting parents back to work. The government does not hand out such money unconditionally; instead, in an effort to better their current situations, parents are required to seek employment. Given that roughly 84 percent of employers require some form of drug testing, the likelihood of a drug-using parent getting a job is poor. A mandatory suspicionless drug test is just another way the government assures that parents are holding up their end of the bargain.

Finally, the fourth and fifth interests asserted by the government are very closely related with TANF requirements which aim to keep children safe. Statistics [PDF] show that children who grow up in homes with parents who are addicted to drugs are in the highest risk group to become future drug addicts. Collectively, the interests asserted by Florida are more than reasonable and substantial under the Fourth Amendment. Unfortunately, the fact that Scriven's opinion was grounded in public policy has created an unnecessary hurdle.

The Disconnect: Why Suspicionless Drug Testing Efforts Miss the Point

Welfare benefits, especially given the current economic crisis, are a wonderful tool for helping applicants who are down on their luck get back on their feet. Nevertheless, more can and should be done to assure TANF is used for its intended purpose. The majority of government programs are focused on making poverty more comfortable, while helping the poor escape poverty is the only way to make them more self-sufficient. TANF objectives are much better served by educating the poor regarding birth control, the costs associated with child rearing and the importance of finishing school (or at the very least obtaining a GED).


When policy arguments on both sides of the spectrum are ignored the laws can be seen for what they truly are: an extension of the TANF reform initiated by US President Bill Clinton. That program was aimed at helping Americans get off drugs and empowering parents to improve their familial situation. When tax dollars are undoubtedly feeding children — not habits — the government can reinvest that money in helping those that are truly down on their luck in America.

John McAvoy is a member of the Widener Law Review. His work experience includes the Verterans Law Clinic, Tighe & Cottrell, P.A., the Delaware Civil Law Clinic and Lamb McErlane, PC.

Suggested citation: John McAvoy, The Role of Public Policy in the Suspicionless Drug Testing of Welfare Applicants, JURIST - Dateline, Apr. 1, 2013,

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