Scott suspends drug testing for most state employees till ACLU challenge resolved

TALLAHASSEE — - Gov. Rick Scott has suspended his order that state employees undergo pre-employment and random drug testing while an ACLU lawsuit challenging the policy is pending, according to a memo from Scott that the ACLU released today.

The drug-testing requirement will remain in place for the state Department of Corrections, which will allow the legal issue to continue and be resolved, Scott's June 10 memo to state agency heads said.

Scott ordered pre-employment testing for prospective employees and random testing for all employees of all agencies under his purview on March 22. The policy had still not started when the American Civil Liberties Union sued May 31 to block the order on the grounds that it was unconstitutional

While such policies have become common in the private sector, the lawsuit contended that previous court decisions have ruled that government policies requiring drug testing without suspicion are a violation of the Fourth Amendment's protections against unreasonable searches by government and that some type of suspicion or genuine public need, such as safety, must first be proven.

In 2004, a federal judge in Florida struck down a state Department of Juvenile Justice random drug-testing policy in a lawsuit also filed by the ACLU.

Scott's memo noted that the U.S. Supreme Court has never ruled on the constitutionality of a policy identical to his, but said he believes the order is consistent and that it will prevail in court. "Nonetheless, while the case is pending, it does not make sense for all agencies to move forward with the logistical issues involved in instituting the new policy," the memo said.

Peter Walsh, cooperating counsel with ACLU of Florida, said in a statement released by the ACLU: "Our suit was very clear about the reasons why the Governor's order was unconstitutional. And in direct response to our suit, the Governor has retreated. The state already lost a previous case of random drug testing for Florida workers and the state simply cannot legally do what the Governor ordered. His reconsideration and retraction of the heart of his proposal proves what we said all along - his order is deeply, fatally flawed."

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