JAMES FOX: Drug testing: Unwise and legally suspect
06/06/2011 9:08 AM
By JAMES FOX JR.
During a flurry of activity ending the 2011 session, the Florida Legislature passed HB 353, mandating drug testing of all adult applicants for Florida cash assistance. Gov. Rick Scott signed the bill into law last week.
Florida joins a growing list of states that are further eroding the basic liberties of our fellow citizens simply because they are poor. This is both bad policy and unconstitutional. It also reveals the deep hypocrisy of legislators who rail against governmental interference with citizens’ liberties while invading the most basic of liberties — the liberty to be free from the government searching your body without probable cause.
For many people, testing welfare applicants for drug use sounds like a good idea. As bill sponsor Rep. Jimmie Smith said, why should tax dollars go to supporting drug habits rather than feeding poor children?
But this appeal is based on incorrect and biased assumptions about drug use among the poor. In fact, recipients of welfare use illegal drugs at about the same rate as the general population. The National Institute of Alcohol Abuse and Alcoholism found that the “proportions of welfare recipients using, abusing, or dependant on alcohol or illicit drugs are consistent with proportions of both the adult U.S. population and adults who do not receive welfare.”
Mandatory drug testing is costly and ineffective. Drug tests cost an average of $42. The Florida statute forces the poverty-stricken applicant to pay this cost up front, forcing parents with an annual income of less than $4,000, or about $80 per week, to find the cash up front to apply for benefits — instead of paying for food for their kids.
The Legislature eased this burden with an amendment permitting those who test negative to be paid back in their first benefits check. This does not help the family who had no money to pay for the test in the first place. With 90 percent of applicants likely to test negative, the state will end up paying over half a million dollars for testing, further increasing welfare expenditures.
This cost is especially foolhardy given that drug tests have problems with false positives and false negatives, and several harder drugs are not easily detected by standard tests. Other states, such as Michigan and Oklahoma, have used well-designed, inexpensive written questionnaires that are 94 percent effective in detecting drug and alcohol use. Florida should follow their lead.
More troubling than the cost and ineffectiveness of blanket drug tests is the violation of the civil liberties of FloridaÂ’s poor families. No liberty is more basic than the Fourth Amendment protection against unreasonable searches. This is why the U.S. Supreme Court has found unconstitutional mandatory drug testing of candidates for public office, despite the social benefits gained from barring drug users from running for elected office, and why a similar welfare drug-test program was found unconstitutional in Michigan.
Ironically, the Florida Republican Party, which opposes federal health care legislation as unconstitutional, has adopted a welfare law far more likely to be found unconstitutional.
This new law also reveals hypocrisy on two levels. First, if stopping the expenditure of government money on drug use is the concern, then other recipients of public money should be tested. But the legislature rejected a Democratic amendment that required drug testing of Bright Futures scholars — even though college-age citizens comprise the one demographic group that we know uses drugs at the highest rate (about 1 in 5).
Second, were personal liberty and small government really the polestars of Florida Republicans, they would not pass a law using government power to force the needy to give up a basic liberty. The power of government to “buy up” rights is surely one of the main dangers of big government.
Such contradictions reveal that it is not the personal liberty of all citizens that some politicians favor, but rather the freedom of the political elite to ride the backs of the poor.
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James W. Fox Jr. is a professor of law at Stetson University College of Law in Gulfport, Fla. He has written on the history and theory of democratic citizenship and poverty and on contract theory in national legal journals across the country. His most recent research focuses on the intersection of civil society and public sphere theory.
JAMES FOX: Drug testing: Unwise and legally suspect Northwest Florida Daily News
