Temporary ban on Florida welfare drug testing upheld, Gov. Rick Scott will appeal to Supreme Court

By: James L. Rosica, Associated Press

TALLAHASSEE, Fla. (AP) -- A federal appeals court on Tuesday upheld a temporary ban on a law requiring drug testing of Florida's welfare recipients, prompting Gov. Rick Scott to say he'll now appeal to the U.S. Supreme Court.

The 11th U.S. Circuit Court of Appeals in Atlanta ruled that a lower court was right to temporarily halt enforcement of the state's drug-testing program. The opinion said the state of Florida hadn't shown a "substantial special need" for a mandatory testing program with no suspicion of an individual's drug use.

The ruling, authored by Circuit Judge Rosemary Barkett, added that "there is nothing inherent to the condition of being impoverished that supports the conclusion that there is a `concrete danger' that impoverished individuals are prone to drug use."

Drug testing invokes the Fourth Amendment, which protects against unreasonable searches and seizures.

Tuesday's decision means that the law will continue to not be enforced as a lower court continues to resolve whether the required testing is constitutional. Both sides have asked a federal district court to rule on the issue before it goes to trial.

Although the temporary ban was upheld, a concurring opinion by Circuit Judge Adalberto Jordan cautioned the court was making no "definitive legal pronouncements about the ultimate constitutionality" of the drug testing.

The governor, who supports drug testing of prospective welfare recipients, called the circuit court ruling "disturbing."

"Welfare is taxpayer money to help people looking for jobs who have children," Scott said in a statement. "Drug use by anyone with children looking for a job is totally destructive. This is fundamentally about protecting the well-being of Florida families."

However, the panel ruled that the state did not prove that children would be worse off without the drug testing.

Opponents have said drug testing as a condition of getting welfare benefits - known as Temporary Assistance for Needy Families - is an unconstitutional search and seizure.

Florida's law requires welfare applicants to pay for and pass a drug test to get benefits. The drug testing was in effect in the latter half of 2011 before being halted by a federal judge. The American Civil Liberties Union had challenged the law's constitutionality; the state later appealed the preliminary injunction to the 11th Circuit.

The appellate opinion noted that aside from those in public education, law enforcement and other public-safety positions, courts have generally frowned on government-ordered drug testing without a reasonable suspicion of individual drug use.

"The simple fact of seeking public assistance does not deprive a TANF applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy," the opinion said.

The opinion also dismissed the state's argument that testing for drugs without a particular suspicion is permissible because prospective welfare recipients sign a consent form. In fact, the court said the state cannot condition welfare benefits on what it called "the applicant's forced waiver" of a constitutional right.

The case at hand was filed by Luis Lebron, a U.S. Navy veteran, college student and single father who refused to submit to a drug test for TANF benefits in 2011.

His attorney, Maria Kayanan, the ACLU of Florida's associate legal director, said the opinion sends a strong message to other states that such drug testing programs are "unsupported and unfounded."

"This is just part of a conservative social movement to demonize the poor, to make it as difficult as possible to obtain benefits to which they're entitled," she said.

Since federal welfare reform in 1996, many states have looked into drug testing of applicants and recipients of public welfare benefits, and federal rules allow it, according to the National Conference of State Legislatures' website. Of those states that passed laws, however, provisions included a screening process or required tests only from applicants reasonably believed to be using illegal substances.

Florida lawmakers also passed legislation allowing state agencies to randomly drug-test their employees. Enforcement of that measure has been suspended while a similar executive order by Gov. Scott also is being challenged in court.


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