Court deals blow to Scott's drug test requirement for welfare applicants

TALLAHASSEE — A federal appeals court on Wednesday dealt another blow to Gov. Rick Scott's crusade to conduct drug tests on welfare applicants when it upheld a lower court's ruling that the practice is unconstitutional.

The unanimous ruling from a bipartisan panel of judges concluded that the state failed to show why it had to force applicants seeking Temporary Assistance for Needy Families to surrender their constitutional rights to receive the aid.

"We have no reason to think impoverished individuals are necessarily and inherently prone to drug use, or, for that matter, are more prone to drug use than the general population,'' the court said in its 54-page ruling.

Proponents hailed the decision, which was made two weeks after the 11th U.S. Circuit Court of Appeals judges heard arguments in the case, and predicted it would have broader impact in protecting the rights of people receiving government benefits, from Bright Futures scholarships to driver's licenses.

"This should be the end of the road for the governor's crusade,'' said Howard Simon, executive director of the ACLU of Florida, which sued the state. "The opinion says that people cannot be forced to surrender constitutional rights as a condition of any government benefit — driver licenses, library cards, student loans and farm subsidies."

The Scott administration is "reviewing the ruling,'' said the governor's spokeswoman, Jackie Schutz.

In his detailed ruling, Judge Stanley Marcus concluded that "citizens do not abandon all hope of privacy by applying for government assistance." He said that "the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable" and that "by virtue of poverty, TANF applicants are not stripped of their legitimate expectations of privacy."

In 2011, the Legislature passed a law at Scott's request to allow the state to require what was considered "suspicionless" drug testing as a condition to receive TANF benefits.

The policy was one of two attempts by the governor to follow through on his 2010 campaign promise to test welfare applicants and state workers for drug use. The governor's attempt to randomly test state workers for drugs has also been deemed unconstitutional by the courts. A preliminary review of legal costs shows the state has spent at least $400,000 unsuccessfully defending the drug-testing policies.

Under TANF, benefits are temporary — up to 48 months. To be eligible, the 2011 law required applicants to pay for the drug tests, which ranged in cost from $24 to $45, and they would face higher costs if they tested positive.

Luis Lebron, a 35-year-old Navy veteran and single father, was a TANF applicant and college student. He had sole custody of his 5-year-old son and cared for his disabled mother in Orlando when he applied for assistance. He signed the form and agreed to take the drug test but then changed his mind, and the state denied him benefits.

The ACLU sued on Lebron's behalf, arguing that the drug tests were an unconstitutional violation of the Fourth Amendment protections against unreasonable searches and seizures. U.S. District Court Judge Mary Scriven ruled in 2011 that the policy was unconstitutional and halted testing three months after the law took effect. Scott appealed to the federal appeals court, and a hearing was held Nov. 20.

Lawyers for the governor and the Florida Department of Children and Families argued that the drug tests were warranted for all TANF recipients because the state had a "special need" to protect children of welfare recipients who were using drugs and to ensure that recipients were prepared to enter the workforce.

But Marcus, who was first appointed to the bench by President Ronald Reagan, concluded, "the state has presented no evidence that children of TANF parents face a danger or harm from drug use that is different from the general threat to all children in all families."

The court cited a 2000 study done by the DCF showing that TANF recipients are less likely than the general public to use illegal drugs. During the three months the law took effect, 4,046 TANF applicants submitted to drug testing and only 108 — 2.67 percent — tested positive for drug use, compared with 5.2 percent for the general public.

Marcus also authored the opinion that struck down Scott's attempt to randomly test state workers for drugs. Scott has considered appealing that ruling to the U.S. Supreme Court after removing from the list about half of the state's classes of workers who would be eligible for drug screening.

Contact Mary Ellen Klas at meklas@MiamiHerald.com. Follow @MaryEllenKlas.