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A Times Editorial

Scott should give up on unconstitutional drug tests

WHEN GOV. RICK SCOTT and the Florida Legislature decided against good sense and legal reasoning that the state's welfare recipients would have to submit to a drug test to receive benefits, they must have known Florida would end up in court. Now that a federal judge has issued a scathing ruling temporarily blocking the drug tests, their folly is even more apparent. How much more will Florida spend to defend a law that is clearly unconstitutional?

Putting up hurdles for people receiving public assistance may be popular in some conservative circles. But as the ruling Monday by the Orlando-based U.S. District Judge Mary Scriven makes clear, requiring a drug test when there is no basis to suspect that an individual is engaging in illicit drug use violates the Fourth Amendment's prohibition on unreasonable searches and seizures. Poor people have privacy rights like everyone else.

Scriven's ruling makes mincemeat of the state's case. She found baseless Florida's claims that a drug test is not a "search" under the U.S. Constitution.

The collection of an individual's urine, Scriven wrote, is an intrusion "into a highly personal and private bodily function." And, she continued, the subsequent urinalysis "can reveal a host of private medical facts."

The judge also was not swayed by the state's claims that a "special need" exists that justifies drug testing all state welfare applicants. These special need cases, because they carve out exceptions to the general rule that the government cannot intrude into a person's private sphere without good cause, require extraordinary circumstances. For instance, suspicion-less drug tests have been permitted after a railroad accident.

Scriven looked at the evidence to determine that Florida's claims of special needs to protect children from drug abusers in the home and to keep Florida taxpayers from subsidizing drug use had no validity. She found no evidence of rampant drug use among welfare applicants.

An empirical study of Florida's welfare applicants between 1999 and 2001 found that only 5.1 percent of the total tested positive for illicit drug use. And since the current drug test was implemented, only 32 of more than 7,000 applicants have failed the screening. Welfare recipients are apparently less likely to be abusing drugs than other Floridians.

It is true that about 1,600 applicants have chosen not to take the drug test. But as Scriven pointed out, there are many factors that could dissuade an applicant. The cost of the test, from $25 to $45, may be out of reach for this population even if the fee is reimbursed if they pass. They might not be near a place to take the test or willing to so easily give up their constitutional rights.

Scriven's order temporarily suspends the law, but she has made it clear that the state is very likely going to lose going forward. This unconstitutional statute cannot stand judicial scrutiny. The state might as well admit it now and save taxpayers the money that would be wasted pursuing appeals.

Scott should give up on unconstitutional drug tests 10/25/11 [Last modified: Tuesday, October 25, 2011 5:58pm]
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