By Heidi Schumann, ACLR Featured Online Contributor
Earlier this month Florida Attorney General Pam Bondi declined to appeal an Eleventh Circuit decision striking down a Florida statute mandating that certain Florida welfare recipients undergo urinalysis.1 The ACLU along with Florida resident Luis Lebron challenged Florida’s TANF qualifications program. In December 2014, the Eleventh Circuit found that the program violated the Fourth Amendment.2 Florida’s opportunity to challenge that ruling before the United States Supreme Court, however, passed on March 3, 2015, signaling that for the moment drug testing would not be required for welfare recipients. In a system notorious for abuse there still remains some concern about maintaining the integrity of the welfare system. Yet, Florida’s proposed solution would require an expansion of the Fourth Amendment doctrine authorizing the government to perform an unparticularized and suspicionless search, allowing the government to invade individual privacy without sufficient justification. The Florida legislature and other state legislatures need to develop an alternative system that does not implicate the Fourth Amendment but does address some of the underlying concerns of the Florida statute.
In 1996 Congress enacted a welfare reform act called the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which terminated any prior entitlement to federal government funds and reshaped how welfare benefits were to be distributed.3 Temporary Assistance for Needy Families (TANF), which is the welfare act at issue in Lebron, was created a year later.4 This legislation authorized the federal government to reimburse the states for funds distributed as benefits and the cost of administering the state welfare programs.5 TANF was enacted with four specific goals: “assisting needy families so that children could be cared for in their own homes,” “reducing the dependency of needy parents by promoting job preparation, work, and marriage,” “preventing out of wed-lock pregnancies,” “encouraging the formation and maintenance of two-parent families.”6 TANF itself is split up into different sections that provide different forms of assistance, one of which is called Temporary Cash Assistance (TCA). TCA provides cash to families with children under the age of eighteen.7 The TCA program, in particular, is the subject of the recently overturned Florida drug-screening program.8 In 2011, Florida enacted legislation that required anyone applying for TCA benefits to take a drug-screening test.9 If an applicant failed the test, he or she was deemed ineligible for TCA benefits for one year or six months if he or she participated in a drug rehab program.10 Florida’s drug-screening scheme is similar to many laws that were debated or enacted throughout the United States, including in Michigan and Virginia.11 In each case the law was either not enacted or was challenged and overturned on Fourth Amendment grounds.12
In Florida, the ACLU along with plaintiff Luis Lebron challenged the statute after Lebron was denied benefits when he refused to undergo urinalysis.13 Lebron argued that requiring urinalysis was a warrantless search, which was not justified under a special needs exception, and therefore, violated the Fourth Amendment.14 Florida defended the statute arguing first that the Fourth Amendment was not implicated because the benefits were distributed at the discretion of the Florida government, and as part of the application process applicants were consenting to this search.15 Florida argued in the alternative that even if the applicants had not consented to the search, it was permissible under the special needs exception to the Fourth Amendment.16 The state asserted that it had a fiduciary duty in this context to prevent taxpayer money from contributing to the drug epidemic and a duty to curb parental substance abuse.17
The court ultimately held that the search violated the Fourth Amendment.18 The court affirmed that drug testing in this context was a search and compliance with the Fourth Amendment could not be avoided based on a consent theory.19 The court further found that the search did not meet the special needs exception. The court noted that the Supreme Court has recognized only two categories that allow drug testing through the special needs doctrine, “the specific risk to public safety by employees engaged in inherently dangerous jobs and the protection of children entrusted to the public school system's care and tutelage.”20
In the end the court found that, “[t]he 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.”21 The court found that Florida had not put forward evidence that suggested that there was anything in particular about welfare recipients that indicated there was “a ‘concrete danger’ of illegal drug use within Florida's TANF population.”22 Therefore, there was no special need above the general discouragement of engaging in illegal drug activity to warrant the suspicionless search.23 The Eleventh Circuit decision properly limits the scope of the Fourth Amendment and the use of the special needs exception. If taxpayer money dolled out by the government came with the condition that the government had the right to test each recipient to ensure that no money was going toward an illegal purchase, drug testing would be applicable in many other contexts. One author suggests that Florida’s argument taken to its extreme could authorize drug tests as a prerequisite to receive subsidies, tax exemptions, student scholarships and grants, or social security benefits.24 While this is the extreme on one end, the other unacceptable extreme is that taxpayer money is carelessly handed out without ensuring the integrity of the system.25 Florida and the other states need to develop legislation that does not give broad power to the government to investigate and perhaps discriminate against the recipients of welfare (or any beneficiary of taxpayer funds), but that also ensures that the funds are being used for the social purpose for which the government and taxpayers have intended them. An article in The Atlantic, which looked at the instances of fraud attributed to government welfare programs including TANF, concluded that the majority of the fraud occurred due to “bureaucratic incompetence.”26 Perhaps then, the best place to start reforms should be at the government level rather than the recipient’s.