by Katherine McInnis
In 1988 the Drug Free Workplace Act was passed, requiring urine tests for every employee working for a federal grantee. Isabel MacDonald, The GOP’s Drug-testing Dragnet: How the Republicans and industry profiteers are targeting high school students, welfare applicants, and the unemployed, THE NATION, (Sept. 26, 2013 9:04 AM), http://www.thenation.com/article/173654/gops-drug-testing-dragnet?page=0,3. Although Republicans unsuccessfully pushed for drug-testing to be required for all recipients of federal unemployment benefits, in 2012 Congress amended federal rules to allow drug-testing for applicants of unemployment benefits seeking work in sectors of the workforce where drug screenings are required. Id. Sixteen states already proposed and considered bills that would include such testing in 2012. Id. By 2011 over half of all businesses required job candidates to be tested, while another ten percent required testing for certain candidates. B.A. Peeing to participate, The Economist, (Sept. 26, 2013, 9:03 AM), http://www.economist.com/blogs/democracyinamerica/2012/09/drug-testing.
Michigan was the first state to enact a welfare drug testing law in 1999, which was ruled unconstitutional in 2003. Michigan ACLU Seeks Halt to Nation’s First Mandatory Welfare Drug Testing Program, ACLU, (Sept. 26, 2013, 9:03 AM), http://www.aclu.org/drug-law-reform/michigan-aclu-seeks-halt-nations-first-mandatory-welfare-drug-testing-program. In 2011-2012 eight states enacted similar drug-testing legislation: Georgia, Florida, Arizona, Missouri, Kansas, Utah, Oklahoma and Tennessee. Id. Georgia and Florida are the only states to institute suspicion-less drug-testing for TANF applicants; other states require varying levels of suspicion. Id. The ACLU challenged Florida’s policy and the court in Lebron v. Florida ruled the policy was a violation of the Fourth Amendment. Rob Schofield, State Lawmaker Embarrasses Himself on Drug Testing Bill, The Progressive Pulse, (Sept. 26, 2013, 9:06 AM), pulse.ncpolicywatch.org/2013/04/09/state-lawmaker-emabrrasses-himself-on-drug-testing-bill/.
Before Lebron, Florida’s program lost money rather than saved it, disproving the assumption that public funds were supporting significant drug use. Drug Testing and Public Assistance, National Conference of State Legislatures, (Sept. 26, 2013, 9:05 AM), http://www.ncsl.org/issues-research/human-services/drug-testing-and-public-assistance.aspx.
While the policy was in effect, 2.6% of recipients tested positive. Jason Williamson and Rebecca McCray, As the “Drug Testing Dragnet” Widens, the Poor Continue to be Swept In, ACLU, (Sept. 26, 2013, 9:21 AM), http://www.aclu.org/blog/criminal-law-reform-racial-justice/drug-testing-dragnet-widens-poor-continue-be-swept. Applicants paid for their tests upfront and those who tested negative were reimbursed. Id. Due to the low rate of positive tests, there was a net loss of $200,000 from repaying recipients for the tests. Mary Ellen Klas, State losing money on drug testing of welfare recipients but applications drop, Tampa Bay Times, (Sept. 26, 2013, 9:08 AM), http://www.tampabay.com/blogs/the-buzz-florida-politics/content/state-losing-money-drug-testing-welfare-recipients-applications-drop. The rate of illicit-drug use among the general public is 8.7%. J.F., Signalling as policy, The Economist, ACLU, (Sept. 26, 2013, 9:17 AM), http://www.economist.com/blogs/democracyinamerica/2011/09/welfare-and-drug-testing. The proportion of those who tested positive compared to the rate of drug use in the general population demonstrates the untenable nature of two values underlying drug testing programs for welfare benefits: that taxpayer money is being used to support a drug habit, and that a drug testing program will save the state money that was misused by welfare recipients. Lawmakers demonstrate where they think public money is being misused by making drug tests a requirement for the recipient of welfare. If states are concerned about misuse of taxpayer money, then drug testing as a condition for public aid should be extended to all individuals who receive state funds and applicants for Medicaid, Emergency Relief, educational loans, grants and scholarships. “Dangerous Precedent,” Federal Judge Blocks MI’s Plant to Drug Test Welfare Recipients, ACLU, (Sept. 26, 2013, 9:18 AM), http://www.aclu.org/drug-law-reform/citing-dangerous-precedent-federal-judge-blocks-mis-plan-drug-test-welfare-recipient. Either drug testing requirements should no longer be placed on the poorest among us or it should be extended to all recipients of taxpayer money in order to fairly and accurately prevent the use of public money for private illegal drug habits.
Lawmakers are demonstrating where they think public money is being misused by aiming these laws only on those who depend on public assistance through welfare (SNAP, TNAF, unemployment, Medicaid, etc.). By not including all recipients of all forms of public aid lawmakers are indicating who are the deserving and undeserving poor. If states are concerned about misuse of taxpayer money, then drug testing as a condition for public aid should be extended to all individuals who receive state funds and applicants for Medicaid, State Emergency Relief, educational loans, grants or scholarships, public education, or any other benefit from the state. See “Dangerous Precedent,” Federal Judge Blocks MI’s Plant to Drug Test Welfare Recipients, ACLU, (Sept., 2000), http://www.aclu.org/drug-law-reform/citing-dangerous-precedent-federal-judge-blocks-mis-plan-drug-test-welfare-recipient. As the Director of the National ACLU Drug Policy Litigation Project, Graham Boyd, stated in 1999, “the emotionally charged myth of the drug-addicted welfare mother is not supported by empirical data” and thus either the focus of this policy should no longer be placed on the poorest among us or extended to all recipients of taxpayer money in order to fairly and accurately prevent the use of public money for private illegal drug habits. Michigan ACLU Seeks Halt to Nation’s First Mandatory Welfare Drug Testing Program, ACLU, (Sept. 30, 1999), http://www.aclu.org/drug-law-reform/michigan-aclu-seeks-halt-nations-first-mandatory-welfare-drug-testing-program (he continues stating: “In fact, a recent federal study shows that the percentage of welfare recipients using, abusing, or dependent on alcohol or drugs is relatively small and is in fact consistent with the general population”).
Welfare drug testing laws tie into the belief that there are deserving and undeserving poor. These policies exacerbate and encourage stigmas connected with the receipt of public assistance. The poverty rates in our country demonstrate the disparities of wealth and resources between different racial groups. While 27.4 percent of blacks and 26.6 percent of Hispanics were poor in 2010, only 9.9 percent of non-Hispanic whites were poor. “Poverty in the United States Frequently Asked Questions,” National Poverty Law Center, http://www.npc.umich.edu/poverty/ (last visited October 10, 2013). These laws burden only the poorest among us and disproportionately affect minority groups in the U.S. due to the fact that a larger proportion of minority groups fall below the poverty line than non-white Hispanics. Drug testing public assistance recipients exacerbates existing stereotypes, and encourages the idea that taxpayer money is being used to support drug habits.
Conditioning public assistance on drug testing serves to further intrude on the privacy of the already highly regulated lives of the most disadvantaged people in the United States and perpetuate a stereotype that has little basis in reality. The poorest in the United States fared the worst in the recession of 2008, and yet states have responded with legislation that creates another barrier to aid and invades the privacy of individuals. These laws imply that the privacy interests of the most disadvantaged people and communities are valued less than those who do not have to rely on public assistance. Michigan ACLU Seeks Halt to Nation’s First Mandatory Welfare Drug Testing Program, ACLU, (Sept. 30, 1999), http://www.aclu.org/drug-law-reform/michigan-aclu-seeks-halt-nations-first-mandatory-welfare-drug-testing-program. Some lawmakers have argued that the reason is purely to keep taxpayer money from being used on drugs. North Carolina State Senator Tommy Tucker in April 2013 responded to a reporter who pointed out the unconstitutionality of a proposed law to test recipients of public aid for drugs “You’re OK with [drug users] getting federal dollars if they’ve had a doobie and get the munchies and need more food stamps? Sit down.” Rob Schofield, State Lawmaker Embarrasses Himself on Drug Testing Bill, The Progressive Pulse, (April 9, 2013), pulse.ncpolicywatch.org/2013/04/09/state-lawmaker-emabrrasses-himself-on-drug-testing-bill/.
So far in 2013, 29 states have proposed laws that requiring drug screening or drug testing for public assistance when there is some level of suspicion than an individual is using illegal drugs. Drug Testing and Public Assistance National Conference of State Legislatures, http://www.ncsl.org/issues-research/human-services/drug-testing-and-public-assistance.aspx (last visited October 10, 2013). While the future of enacted and proposed drug testing welfare laws across the country are unclear, it is clear from Lebron that suspicion-less testing of all applicants is unconstitutional. One response to these laws has been a drop in applicants for public assistance, which might be the only way that these programs save the state money. Mary Ellen Klas, State losing money on drug testing of welfare recipients but applications drop, Tampa Bay Times, (Oct. 11, 2011), http://www.tampabay.com/blogs/the-buzz-florida-politics/content/state-losing-money-drug-testing-welfare-recipients-applications-drop.
The stated purpose for these laws is that the government should not have to subsidize illegal drug use, but what the conditioning public assistance on drug testing does is invade the privacy of and establish a precedent for drug-testing an entire class of people, while those who are fortunate enough to not rely on public assistance are free from this invasion of privacy. J.F. Signaling as policy, The Economist, (Sept. 2, 2011), http://www.economist.com/blogs/democracyinamerica/2011/09/welfare-and-drug-testing. These policies are affecting a class of people are disproportionately Hispanic and African American. Although many employers test employees, an individual must voluntarily submit to this testing, and can in fact refuse to take the job on the basis of the drug testing policy. In contrast, people who rely on welfare do not have a real choice and cannot voluntarily choose to undergo the test because the aid is conditioned on the testing. Those who have the least choice in society and rely on the government for subsistence are also the ones who are coerced into drug testing or screening. Rather than comprehensive laws which would condition the receipt of any public funds on drug testing, welfare drug testing laws are another aspect of the over-policing of people of color because they encourage further stigmatization of minority groups and low-income individuals. A choice between housing and food and an invasion of privacy is no choice at all.