Court strikes down drug tests for TANF
The U.S. District Court handed Gov. Rick Scott a defeat on Dec. 31 when it struck down a law requiring drug screening of welfare recipients.
Middle District of Florida Judge Mary Scriven granted summary judgment on behalf of Luis Lebron a Navy veteran, college student and single father from Orlando. Lebron refused to submit to a drug test, arguing that requiring him to pay for and submit to one is unreasonable when there is no reason to believe he uses drugs. Lebron was represented by the American Civil Liberties Union of Florida.
Scriven wrote that the court "finds there is no set of circumstances under which the warrantless, suspicionless drug testing at issue in this case could be constitutionally applied."
Scott's 2010 campaign promise to enact the drug tests is one of dozens of promises PolitiFact Florida is tracking on our Scott-O-Meter. In another promise related to welfare, we gave Scott a Promise Broken for failing to enact more stringent standards related to work requirements for welfare.
But it is Scott's promise about drug testing that has drawn more attention. In a TV interview while campaigning in October 2010, Scott said: "If you go apply for a job today, you are generally going to be drug tested. The people that are working are paying the taxes for people on welfare. Shouldn't the welfare people be held to the same standard? We shouldn't have long-term welfare or someone who is using drugs or not out trying to get a job."
Scott quickly earned a Promise Kept in 2011 when he signed HB 353, which forces all people who receive welfare cash, called Temporary Assistance for Needy Families, to pass a drug test in order to be eligible for the funds. If prospective recipients failed a first test, they would lose benefits for one year. A second positive drug test would have made them ineligible for three years. The bill passed the House 78-38 and passed the Senate 26-11. There are currently about 92,000 TANF clients in Florida.
In response to the ACLU's suit, the court issued a temporary injunction to block the law in 2011. Scriven wrote in that order that the law could violate the U.S. Constitution's Fourth Amendment ban on illegal search and seizure.
"The constitutional rights of a class of citizen are at stake," Scriven wrote.
While the law was in effect from July through October 2011, about 2.6 percent -- or 108 of 4,046 people -- tested positive for drugs, the most common being marijuana.
As the law was on hold, it became the butt of a joke on The Daily Show. Comedy Central reporter Aasif Mandvi crashed a budget press conference in December 2011 to ask Scott to pee in a cup.
"You've benefitted from hundreds of thousands of taxpayer dollars over the years, so would you be willing to pee into this cup to prove to Florida taxpayers that you're not on drugs?" asked Mandvi. Scott did not comply.
A ruling in February 2013 from the 11th Circuit Court of Appeals in Atlanta affirmed the injunction.
The state continued to argue that it warranted an exception to the Fourth Amendment to ensure TANF participants' job readiness, to meet child-welfare goals and to ensure that public funds are properly used.
But in the Dec. 31 ruling, the court agreed with the 11th Circuit's preliminary conclusion, saying, "There is nothing so special or immediate about the government's interest in ensuring that TANF recipients are drug free so as to warrant suspension of the Fourth Amendment."
Scott announced Friday he will appeal the case -- which would send it back to the 11th Circuit.
"Any illegal drug use in a family is harmful and even abusive to a child," Scott wrote in a news release. "We should have a zero tolerance policy for illegal drug use in families – especially those families who struggle to make ends meet and need welfare assistance to provide for their children. We will continue to fight for Florida children who deserve to live in drug-free homes by appealing this judge's decision to the U.S. Court of Appeals."
The court's ruling makes permanent an injunction that halted drug testing for welfare recipients. We'll continue to watch the case, but for now we say Promise Broken.
U.S. District Court Middle District of Florida, Luis Lebron vs. David Wilkins summary judgment, Dec. 31, 2013
ACLU of Florida, Press release about Luis Lebron vs. David Wilkins summary judgment, Dec. 31, 2013
Interview, Michelle Glady, spokeswoman Florida Department of Children and Families, Dec. 31, 2013
State loses another round in fight for drug-testing welfare recipients
Another court ruling has cast a dim outlook for Florida's 2011 law requiring drug screenings of welfare recipients.
The law has been on hold ever since an Orlando judge's temporary injunction on Oct. 24, 2011. A ruling on Feb. 26 from the 11th Circuit Court of Appeals in Atlanta affirmed the injunction.
About two years ago, Gov. Rick Scott signed the law passed by the Republican-led Legislature requiring applicants seeking Temporary Assistance for Needy Families, called TANF, to first pass a drug test.
On the day of the appellate court ruling, Scott vowed to appeal the "disturbing” decision all the way to the U.S. Supreme Court.
"Welfare is 100 percent about helping children. Welfare is taxpayer money to help people looking for jobs who have children. Drug use by anyone with children looking for a job is totally destructive. This is fundamentally about protecting the well-being of Florida families,” Scott said in a statement.
The 11th Circuit Court of Appeals did not evaluate the constitutionality of Florida's law, though judges remarked they were skeptical of it surviving the lawsuit. In a 30-page decision, Judge Rosemary Barkett said attorneys for the state did not prove that children of families who receive TANF are more at risk without drug testing in place.
"There is nothing so special or immediate about the government's interest in ensuring that TANF recipients are drug free so as to warrant suspension of the Fourth Amendment,” Barkett wrote. "The only known and shared characteristic of the individuals who would be subjected to Florida's mandatory drug testing program is that they are financially needy families with children.”
A spokesman for the ACLU of Florida, which supported Navy veteran Luis Lebron in his lawsuit against the state, criticized Scott's "hasty” announcement that he would appeal to the Supreme Court. The Middle District Court of Florida, which issued the injunction, is likely to issue a summary judgment on the law sometime soon, and Scott could wait to act upon that, said spokesman Baylor Johnson.
"The ball is sort of in his court in terms of next steps,” he said, "But this was a pretty clear statement about what exactly this policy means for the rights of Floridians.”
Florida's four-month drug-testing run in 2011 yielded 108 negative drug tests, according to Department of Children and Families data. Only 2.6 percent of applicants who took the test failed, though supporters of the law say that does not account for people who walked away from the application process because they were on drugs.
The pass rate was 96.3 percent, leaving the state to pay more than $100,000 to adults who paid for the test and passed. The average time an adult receives TANF is four and a half months, said DCF spokesman Joe Follick.
On a related subject, oral arguments in the ACLU's legal challenge of a 2012 law requiring drug tests of state workers are scheduled for March 22, 2013.
As the state loses another battle, the outlook for the law looks less promising. We move the rating on the Scott-O-Meter to Stalled.
11th Circuit Court of Appeals opinion, released Feb. 26, 2013
Interview with Jackie Schutz, Scott spokeswoman, Feb. 26, 2013
Interview with Joe Follick, DCF spokesman, Feb. 26, 2013
Interview with Baylor Johnson, ACLU of Florida spokesman, Feb. 26, 2013
Oral arguments heard in welfare drug testing case
One of Gov. Rick Scott's promises that has received the most media attention -- and even a parody on The Daily Show -- was his vow to drug test welfare recipients.
The Florida Legislature approved a bill to drug-test welfare recipients in 2011. Soon after that, the American Civil Liberties Union filed suit to stop it, and a federal judge issued a temporary injunction. Scott announced that the state would appeal the decision, and the case continued to wind it's way through the courts in 2012.
Oral arguments were heard in the 11th Circuit Court of Appeals in Atlanta on Nov. 1, 2012.
A ruling is expected within the next several months.
The ACLU also sued the state over a law approved in 2012 to drug test current state workers, but a judge issued an injunction forbidding the tests. Oral arguments are scheduled for the week of March 18, 2013.
Florida law denies welfare benefits to individuals convicted of drug trafficking. Legislators attempts to expand the ban to those convicted of felony drug possession, but that failed during the 2012 session.
Scott spokeswoman Jackie Schutz told us in late November that Scott does not plan to propose any law related to drug testing welfare recipients during the upcoming session, which starts in March.
We don't know how the courts will rule on Florida's law, but a similar law in Michigan was ultimately struck down. (PolitiFact wrote about it in a September 2011 fact-check about a chain email that falsely claimed Florida was the first state to drug test welfare recipients.)
There doesn't appear to be any way for Scott to earn back his Promise Kept for drug testing welfare recipients unless he gets a victory in court. This promise remains In the Works.
The Miami Herald's Naked Politics blog, "Scott appeals drug testing decision,” Nov. 3, 2011
The Tampa Bay Times The Buzz blog, "Appeals court hears welfare drug testing case,” Nov. 1, 2012
ACLU of Florida press release, "Statement on TANF drug testing oral arguments,” Nov. 1, 2012
ACLU of Florida press release, "ACLU and state employee union AFSCME succeed in protecting privacy rights of tens of thousands of state workers,” April 26, 2012
Florida House, House Bill 813, Died in committee March 9, 2012
PolitiFact, "Chain email claims Florida is the first state to require drug testing for welfare,” Sept. 30, 2011
National Conference of State Legislatures, Drug testing and public assistance, November 2012
Interview, Jackie Schutz, spokeswoman for Gov. Rick Scott, Nov. 21, 2012
Interview, Baylor Johnson, spokesman for the Florida ACLU, Nov. 19, 2012
The Daily Show, "Poor pee-ple,” Feb. 2, 2012
Florida looks to expand drug testing to state employees
With Florida's 2011 law requiring welfare recipients to take drug tests playing out in the courts, lawmakers explored other ways to prevent people who use drugs from getting state money.
While these new efforts aren't directly related to drug-testing welfare recipients, we thought they were worth noting for the record.
Florida law already prevents people convicted of drug trafficking from receiving food stamps and temporary cash assistance from the state.
Rep. Jimmie Smith, R-Lecanto, and Sen. Steve Oelrich, R-Alachua, wanted to expand the pool of denied applicants to people convicted of felony drug possession -- unless they complete treatment.
Their proposal passed the House by a vote of 80-31 on March 1. It did not fare so well in the Senate, where it was not brought up for a floor vote despite passing a couple committees.
One drug-testing measure did make it to the governor's desk, with another legal challenge likely to follow. Scott signed into law on March 19, 2012, a requirement that state agencies randomly test up to 10 percent of their workers once every three months.
The American Civil Liberties Union of Florida sued Scott last year over his executive order to require random drug-testing of state employees, arguing it's an unwarranted search and seizure by government. The group has hinted it may do the same with the new law.
"It's amazing that the Governor and the Legislature would move ahead with a law that so clearly violates the Constitutional protections against invasive government searches without suspicion – especially while a legal challenge on precisely the same issue is pending in the federal court,” said ACLU of Florida executive director Howard Simon in a news release.
We offer this update acknowledging neither spin-off was what Scott promised on the campaign trail. His promise to drug-test welfare recipients is in the courts, so we're keeping our rating at In the Works.
"Scott orders agency heads to implement drug-testing law,” Palm Beach Post, March 20, 2012
Drug testing welfare recipients gets Florida legislators thinking
The battle about whether Florida should drug test welfare applicants is no laughing matter, but that didn't stop The Daily Show from trying to make Gov. Rick Scott the butt of a joke about it.
Comedy Central reporter Aasif Mandvi crashed a budget press conference in December 2011 to ask Scott to pee in a cup.
"You've benefitted from hundreds of thousands of taxpayer dollars over the years, so would you be willing to pee into this cup to prove to Florida taxpayers that you're not on drugs?'' asked Mandvi Dec. 6, 2011. Scott did not comply. (Read more in the Miami Herald's Naked Politics blog.)
The Daily Show hadn't aired the pee-denial exchange as of the days before the Jan. 10 start of the Legislature's 2012 session. But we decided it was time to test the water on the status of Scott's promise.
To bring you up to speed: The Florida Legislature approved a bill to drug-test welfare recipients in 2011. The American Civil Liberties Union soon filed suit to stop it, and in October, a federal judge issued a temporary injunction. Scott announced in November that the state would appeal the decision, and the issue is still winding its way through the courts.
So Florida still can't drug test welfare recipients. But legislators and Scott are taking other steps to stop benefits for people who have used drugs.
Currently, Florida law only denies benefits to individuals convicted of drug trafficking. Some legislators would like to expand that to people who have been convicted of the lesser charge of felony drug possesion. House Bill 813, filed by Republican state Rep. Jimmie Smith, would prohibit individuals convicted of felony drug possession from receiving temporary cash or food assistance unless they complete treatment. (Republican Sen. Steve Oelrich filed an identical bill in the Senate.) The new policy would start for welfare applicants convicted of drug possession felonies on or after July 1, 2012.
Such a policy would likely survive legal challenges since the 1996 federal welfare law permits it.
PolitiFact Florida initially gave Gov. Scott a Promise Kept when the Legislature passed the bill to require drug testing, but after the judge issued the injunction, we moved our rating to In the Works. The state has continued its effort to fight in the courts for drug testing and legislators have filed bills to stop convicted drug users from receiving benefits. The promise remains In the Works.
Florida House, House Bill 813, Filed Nov. 29, 2011
Legal Action Center website, Opting out of Federal Ban on Food Stamps and TANF, December 2011
Miami Herald's Naked Politics blog, "Video: Comedy Central targets Gov. Scott -- passing a drug-testing cup," Dec. 7, 2011
Miami Herald's Naked Politics blog, "Scott appeals drug testing injunction," Nov. 3, 2011
Associated Press, "Fla. welfare drug test case to be class action," Dec. 7, 2011
Interview, Derek Newton, ACLU spokesman, Jan. 5, 2012
Interview, Elizabeth Lower-Basch, senior policy analyst for the Center for Legal and Social Policy, Jan. 5, 2012
Interview, Roberta Meyers-Peeples, director of the national HIRE Network, a project of the Legal Action Center, Jan. 6, 2012
Judge temporarily halts drug-testing for welfare applicants
After the Florida Legislature approved a bill to drug-test welfare recipients, PolitiFact Florida gave Gov. Rick Scott a Promise Kept on the Scott-O-Meter on May 6, 2011. But on Oct. 24, 2011, a federal judge issued a temporary injunction to block the law.
We wrote in May that the final bill, HB 353, forced all people who receive welfare cash, called Temporary Assistance for Needy Families, to pass a test in order to be eligible for the funds. If prospective recipients fail a first test, they lose benefits for one year. A second positive drug test makes them ineligible for three years.
The American Civil Liberties Union of Florida sued the state in September on behalf of of Luis Lebron, a 35-year-old Navy veteran, college student and single father from Orlando. Lebron refused to submit to a drug test arguing that requiring him to pay for and submit to one is unreasonable when there is no reason to believe he uses drugs.
U.S. District Court Judge Mary Scriven wrote in her order that the law could violate the Constitution"s Fourth Amendment ban on illegal search and seizure.
"The constitutional rights of a class of citizen are at stake,” Scriven wrote.
The St. Petersburg Times wrote in an article about Scriven's order that nearly 1,600 welfare applicants have refused to take the test since testing began in mid July. Thirty-two applicants failed the test -- mostly testing positive for marijuana -- and more than 7,000 have passed, according to the Department of Children and Families.
"In this litigation, the State provides scant evidence that rampant drug abuse exists among this class of individuals," Scriven wrote.
Jackie Schutz, deputy press secretary for Gov. Scott, told PolitiFact Florida in an e-mail:
"The Governor believes drug testing welfare recipients is the right thing to do. It is a policy that is supported by many Floridians because it is a common-sense way to ensure that welfare dollars are used to help children and get parents back to work, just as they were intended to do. The Governor respectfully disagrees with yesterday's decision and he does intend to continue to litigate the case in both the district courts and higher courts if necessary."
The Florida Department of Children and Families ceased drug screening on Oct. 24 after the judge issued her order.
ACLU spokesman Derek Newton said Scott can now decide whether to seek a hearing before Scriven -- which could take months to occur -- or file an appeal in about 30 days. Since the legal case remains open, Scott's promise isn't broken yet but the temporary halt causes us to move this promise to In the Works.
ACLU of Florida, U.S. District court complaint seeking to halt welfare drug testing, Sept. 6, 2011
U.S. District Court Judge Mary Scriven, "Temporary injunction ruling related to welfare drug testing," Oct. 24, 2011
PolitiFact, "Scott gets his wish on drug-testing welfare recipients," May 6, 2011
St. Petersburg Times, "Welfare drug testing halted," Oct. 25, 2011
St. Petersburg Times, "Drug testing for welfare recipients heads to governor," May 5, 2011
Interview, ACLU spokesman Derek Newton, Oct. 25, 2011
Interview, Joe Follick, spokesman, Florida Department of Children and Families, Oct. 25, 2011
Interview, Jackie Schutz, spokeswoman for Gov. Rick Scott, Oct. 25, 2011
Scott gets his wish on drug-testing welfare recipients
The Florida Legislature delivered Gov. Rick Scott a victory in the closing days of the 2011 legislative session when it passed a measure requiring all Floridians who receive cash welfare assistance to first pass a drug test.
Scott had run for office promising a drug-testing requirement, and worked to broaden an original drug-testing bill that would have applied only to recent drug felons.
The final bill, HB 353, forces all people who receive welfare cash, called Temporary Assistance for Needy Families, to pass a test in order to be eligible for the funds. If prospective recipients fail a first test, they would lose benefits for one year. A second positive drug test makes them ineligible for three years. The new testing requirement would affect about 58,000 people.
The bill passed the House 78-38 on April 26 and passed the Senate 26-11on May 5.
"This bill is all about trying to break the cycle of drug dependency and using taxpayer dollars to buy illegal drugs," said Senate sponsor Steve Oelrich, R-Gainesville. Opponents say the measure singles out one group of people who receive state funding and could violate a person's constitutional rights.
Under the bill -- which Scott is expected to sign -- welfare applicants would have to pay for the test. If they pass, the state would reimburse them for the cost of the test, which can range from $10 to $25. The new law would take affect July 1, 2011.
Scott promised that welfare recipients would be drug tested. The Legislature has given him the ability.
We rate this Promise Kept.
Senate floor debate, May 5, 2011
HB 353, accessed May 5, 2011
St. Petersburg Times, "Drug testing for welfare recipients heads to governor," May 5, 2011
Bill amended to expand drug testing requirement
The Legislature might be pushing back on Florida Gov. Rick Scott's plan to cut the corporate income tax rate, but it seems to be embracing his call to drug-test welfare cash recipients.
Bills moving through the House and Senate that originally required only recent drug felons to take drug tests to receive welfare cash assistance now have been amended to expand the testing requirement to all welfare cash recipients.
Scott said, as part of his seven-step plan to create 700,000 private-sector jobs, that he could save taxpayers $77 million by adding a testing requirement and more stringent work provisions for cash welfare recipients. He also has proposed random drug tests for current state employees.
SB 556 and HB 353 have been altered so that all applicants hoping to receive Temporary Assistance to Needy Families payments must first pass a drug screening test. Under the proposals, the applicants would be required to pay for the test.
Sen. Paula Dockery, R-Lakeland, offered the more stringent proposal on Scott's behalf. The new testing requirement would affect about 58,000 people.
Applicants who fail an exam will be prevented from receiving cash assistance for one year. If they fail a subsequent test, they will be unable to receive welfare payments for three years.
The proposal has survived three House committees and one committee in the Senate.
We'll watch how these bills proceed. But for now, we keep this promise rated In the Works.
SB 556, accessed April 13, 2011
HB 353, accessed April 13, 2011
Miami Herald, "Gov. Rick Scott orders random drug tests for state workers," March 23, 2011
Bill filed would require only recently convicted drug felons be tested
One of the ways Florida Gov. Rick Scott said he would better guard taxpayer dollars is by requiring drug testing for people receiving benefits through state-administered welfare programs.
Scott said, as part of his seven-step plan to create 700,000 private-sector jobs, that he could save taxpayers $77 million by adding a testing requirement and more stringent work provisions.
"If you go apply for a job today, you are generally going to be drug tested," Scott told Central Florida News 13 in a pre-election interview from October 2010. "The people that are working are paying the taxes for people on welfare. Shouldn't the welfare people be held to the same standard? We shouldn't have long-term welfare or someone who is using drugs or not out trying to get a job."
Scott didn't drop the issue after defeating Democratic CFO Alex Sink in November.
"It's practical, and it's fair. We shouldn't be subsidizing people who are doing drugs," Scott told the South Florida Sun-Sentinel.
Welfare is a broad term that could have different meanings based on a person's interpretation. For instance Medicaid, which provides subsidized health care for low-income families, could be considered a form of welfare. So could food stamps. Then there's what people traditionally think of welfare -- which is direct cash assistance. That program is called Temporary Assistance for Needy Families (TANF). In Florida, it's also called temporary cash assistance.
The idea of trying to make welfare recipients take a drug test is hardly new.
Supporters argue that drug tests are already commonplace for private-sector job employment, and that a testing requirement would prohibit welfare recipients from using taxpayer dollars to fuel their habit. Opponents say that widespread drug testing is too costly, and that welfare recipients are no more likely to use drugs than anyone else. They also say drug testing is unconstitutional because it amounts to an unreasonable search and seizure. A Michigan law requiring random drug testing was ruled unconstitutional in 2003.
Yet different versions of a testing requirement are now being considered by lawmakers in Kentucky, Missouri and Nebraksa.
And, as Scott wants, in Florida.
Bills have been filed in both the Florida House and Senate that would require some recipients of state and federal direct financial assistance to agree to drug tests by July 1, 2012. Under the provisions of HB 353 and SB 556, applicants for temporary cash assistance who have a felony drug conviction in the previous three years would be required to submit to a drug test as part of the application process. If they pass the test and begin receiving aid, recipients would be subject to additional testing for up to three years.
If a person fails the initial test, they would not be eligible to receive funds for three years. If they fail a test while receiving aid, they would be removed from the program.
The cost for the test -- which the bill does not estimate -- would be paid for by the person being tested.
It's not clear how many of the nearly 100,000 people in Florida who receive temporary cash assistance would be affected. The legislation would not impact people receiving food stamps or on Medicaid.
The drug testing legislation, which is waiting for committee hearings, asks the Department of Children and Families to provide a report to the Legislature by Jan. 1, 2013, detailing how many people have been tested, how many refused the test, and as a result, how many people were either removed from the program or ruled ineligible.
Bill sponsor Sen. Steve Oelrich, R-Gainesville, said he has not talked to Scott about the bill and was unaware drug testing was a Scott campaign promise. Oelrich, a former sheriff for Alachua County, said he also hasn't heard from Senate leadership if they plan to try to push the bill through the Legislature. The House companion bill has been filed by freshman Rep. Jimmie Smith, R-Inverness.
Oelrich said he wanted to start small, by requiring only convicted drug felons to participate, and wrote the law so that state costs would be minimal.
"I don't think it's too much to ask that people that receive welfare payments, that they agree not to violate the law by taking illegal substances," Oelrich said.
Florida, interestingly enough, has tried to initiate drug testing before. The Legislature in 1998 approved a drug-testing pilot project for people receiving temporary cash assistance. But the results were underwhelming. Of the 8,797 applicants screened for drugs, only 335 showed evidence of having a controlled substance in their system and failed the test, the Orlando Sentinel reported. The pilot project cost the state $2.7 million (or about $90 a test).
During the campaign, Scott said he wanted to have drug testing for welfare recipients, not just those who had previous drug convictions. So we'll be watching to see whether the current proposed legislation is expanded. But for now, we rate this promise In the Works.
CFN 13, "Rick Scott wants welfare recipients to take drug tests," Oct. 13, 2010
Orlando Sentinel, "Scott still plans to drug test welfare recipients," Nov. 30, 2010
Florida House, HB 353, accessed Feb. 21, 2011
Florida Senate, SB 556, accessed Feb. 21, 2011
Florida Department of Children and Families, "quick facts," accessed Feb. 21, 2011
ACLU,"Drug Testing of Public Assistance Recipients as a Condition of Eligibility," accessed Feb. 21, 2011
NPR, "Should Welfare Recipients Get Drug Testing?," March 31, 2010
Sen. Steve Oelrich, "Senator Oelrich Sponsors Bill to Enforce Drug Tests for Convicted Felons Seeking State Aid," Feb. 2, 2011
Orlando Sentinel, "Our take on: Welfare drug tests," Oct. 30, 2010
Sen. Steve Oelrich, interview, Feb. 21, 2011