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Court deals blow to Gov. Scott's drug testing of welfare applicants

A federal appeals court on Wednesday dealt another blow to Gov. Rick Scott’s crusade to conduct drug tests on welfare applicants and upheld a lower court ruling that the practice was unconstitutional.

The unanimous ruling from a bipartisan panel of judges concluded that the state failed to show any evidence as to why it was necessary to force applicants seeking Temporary Assistance for Needy Families to surrender their constitutional rights as a condition of receiving the aid and instead suggested that the policy played on stereotypes.

"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 came just 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 a wider range of government benefits – from Bright Futures scholarships to 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 for welfare applicants to receive Temporary Assistance for Needy Families 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 and a preliminary review of the 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 – and are intended to provide financial assistance to people so they can get back on their feet. To be eligible, the 2011 law required applicants to pay for the drug tests, which ranged in cost of between $24 and $45, and if they tested positive, they would face higher costs.

Luis Lebron, a 35-year-old Navy veteran and single father, was a TANF applicant and college student. He had sole custody of his five-year-old son and cared for his disabled mother in Orlando when he applied for assistance. He initially 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 the drug tests were an unconstitutional violation of the 4th 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 DCF 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 TANF recipients were prepared to enter the work force.

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. After all, the State acknowledges that drug use harms all individuals and families, but the State does not — and cannot — claim an entitlement to drug test all parents of all children."

He also rejected the qualifications of a doctor DCF offered up as an expert on welfare recipients and drug use.

"The State has presented no evidence demonstrating that drug testing saves a significant portion of TANF funds that could otherwise be spent on drugs,’’ the court ruled. Instead, the court cited a 2000 study done by DCF which showed that TANF receipients are less likely than the general public to use illegal drugs -- 5.2 percent -- and noted that during the three months the law took effect, 4,046 TANF applicants submitted to drug testing but only 108 -- 2.67% -- tested positive for drug use.

Simon called Scott’s policy "a shameless exploitation of the worst stereotypes and prejudices of the applicants for assistance,’’ and the ruling is a "repudiation of that exploitation."

In a statement, Maria Kayanan, ACLU of Florida associate legal director, called the ruling a "resounding affirmation of the values that the Fourth Amendment of the U.S. Constitution…that none of us can be forced to submit to invasive and humiliating searches at the whim of the government, and that the Constitution protects the poor and the wealthy alike."

In a separate case, 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.