11th Cir: No Mandatory Drug Testing for Welfare Recipients

By Mark Wilson, Esq. on December 09, 2014 | Last updated on March 21, 2019

It's been in vogue for a while to drug test recipients of state and federal welfare, on the theory either that welfare recipients take a lot of drugs or that since "we" are paying "them," then we get to conduct intrusive searches into their lives.

The Eleventh Circuit Court last week affirmed that the state of Florida cannot conduct suspicionless drug testing on welfare recipients.

Florida's law, passed in 2011, requires drug testing as a condition of eligibility for welfare benefits. Candidates who test positive for drugs aren't eligible for benefits for a year. Notably, they're not tested for alcohol. The plaintiff in this case refused to take a drug test and was denied benefits.

A previous panel, at the preliminary injunction stage, found the statute unconstitutional -- first because drug testing is a Fourth Amendment search, and then second because such searches require individualized suspicion, which this statute didn't have. On this appeal from summary judgment to the plaintiffs, the state tried another Fourth Amendment doctrine: the special needs search, as applied to situations like railroad workers.

Drug testing under the special needs doctrine, however, has been limited to "employees in especially hazardous occupations." The only other time the Supreme Court allowed random drug testing was of public school students participating in sports.

Contrary to what the state of Florida actually argued, the Eleventh Circuit said that welfare recipients don't automatically surrender their privacy as a condition of obtaining aid. Most importantly, the state was unable to justify its claims with any empirical evidence. There are plainly no data showing that welfare recipients use drugs at higher rates than the rest of the population: "The government's stated needs are general concerns, proffered only at a high level of abstraction and without empirical evidence, and thus do not justify an exception to the Fourth Amendment."

The state had attempted to introduce expert and lay opinion testimony about the rate at which welfare recipients used drugs, but the district court refused to admit it, and the Eleventh Circuit agreed. Expert testimony from an expert who had never personally conducted studies on the relationship between drug use and welfare recipient was properly excluded. As were general, "conclusory" statements from state officials, based on their alleged observations, and not on any actual studies.

Finally, the state struck out in its back-up argument: That the drug testing was a consensual search. Not so much, said the court. The state can't "deny a benefit to a person on a basis that infringes his constitutionally protected interests." The mandatory "consent" is illusory: If a welfare candidate doesn't surrender his right to be protected from what's been deemed an unconstitutional search, he doesn't get any benefits. Deciding any other way, the court said, would eviscerate the special needs search doctrine altogether, as any constitutional problem could be circumvented by consent.

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