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ACLU Sues Rick Scott As Drug Testing of Public Employees and Welfare Recipients Begins

| June 2, 2011

Detail from a 2008 installation by artist Nada Sehnaoui in Beirut. toilets and toilet seats. Drug testing. (Blogging Beirut)

Detail from a 2008 installation by artist Nada Sehnaoui in Beirut. (Blogging Beirut)

Requiring job applicants to “pee in a cup” to test for drugs and randomly selecting current public employees to do the same is unconstitutional, attorneys for the American Civil Liberties Union said Wednesday after filing a federal lawsuit to stop the practice ordered by Gov. Rick Scott.

In what is expected to be a series of lawsuits on recently passed legislation and gubernatorial edicts, the ACLU called on a federal judge in Miami to immediately suspend an executive order signed by Scott in March that requires all agencies to set up random drug testing protocols for existing workers and require new hires to submit to drug tests as a condition of their employment.

In doing so, Scott has not only pushed the envelope over who can be tested, but has acted counter to multiple court rulings that require some probable cause or special circumstance before drug tests can be administered, Peter Walsh, an attorney representing the ACLU, told reporters Wednesday.

“This is a case in which the office of the governor has ripped the envelope apart,” said Walsh.

“It is an unnecessary and costly invasion of the basic privacy and dignity of all state workers to force us to submit to tests of our bodily fluids with absolutely no just cause,” said Richard Flamm, a 17-year state employee and Research Scientist with the Florida Fish and Wildlife Conservation Commission. “For those of us who do our job well, it’s an affront to suggest we may be abusing drugs just because we work for the state.”

A spokeswoman for Gov. Rick Scott responded that Floridians overwhelmingly support drug testing for state workers. She said the governor, who has required testing for new hires since he took office, is confident the executive order will withstand court scrutiny.

“There’s an odd hypocrisy here,” said spokeswoman Amy Graham. “The ACLU supports all kinds of mandatory disclosures by public employees, but not the most important disclosure – whether or not they’re fit to be in the workforce.”

Scott signed the executive order March 22, giving agencies 60 days to begin testing new hires, an increasingly common practice in the private sector. Agencies must give existing employees another 60 days notice before beginning random tests.

“The taxpayers of Florida are entitled to expect that Florida’s public-sector employers be provided the same tools that are now available to private-sector employers to ensure their workforce is drug free,” the executive order reads.

The ACLU filed the case on behalf of the American Federation of State, County and Municipal Employees Council 79 which represents 50,000 public workers who are now subject to the new drug-testing regime and Flamm.

The suit contends previous federal court decisions have clearly ruled that that some type of suspicion or a genuine public need must the proven before drug tests can be required without cause.

Florida’s Corrine Brown on Drug-Testing Welfare Recipients

“The Supreme Court of the United States has held that suspicion-less drug-testing by the government is an unreasonable search (in violation) of the Fourth Amendment, except under certain special circumstances, such as those involving employees in safety-sensitive positions where there is a concrete danger of real harm,” the lawsuit reads.

In March 1989, the U.S. Supreme Court in two separate decisions (here and here), ruled that government drug-testing of some employees was justified. The 7-2 and 5-4 decisions, both written by Justice Anthony Kennedy, gave the federal government discretion to drug-test private and government workers as long as jobs involved public safety. But the allowance was far from broad. ”The expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to insure safety,” Kennedy wrote. Justice Thurgood Marshall dissented even from that narrow standard of permissible drug-testing: “The majority’s concern with the railroad safety problems caused by drug and alcohol abuse is laudable; its cavalier disregard for the text of the Constitution is not. There is no drug exception to the Constitution, any more than there is a communism exception or an exception for other real or imagined sources of domestic unrest.”

“I’m not sure if Governor Scott does not know that the policy he ordered has already been declared unconstitutional or if he just doesn’t care,” said Howard Simon, Executive Director of the ACLU of Florida. “But I do know that the state of Florida cannot force people to surrender their constitutional rights in order to work for the state.”

The complaint is expected to be followed in the weeks ahead by other lawsuits in an attempt to overturn “a tsunami of anti-civil liberties legislation” passed by lawmakers during Scott’s first few months in office dealing with abortion, elections, and free speech issues, said Howard Simon, executive director of the Florida ACLU.

In deciding the 2004 ACLU/DJJ case that struck down a similar drug testing scheme, the court judgment found, “DJJ had (and apparently still has) a random drug testing policy applicable by its terms to all DJJ employees, top to bottom. DJJ now virtually concedes the policy cannot constitutionally be applied to at least some DJJ employees.”

In a 2000 ACLU case a Federal District Court struck down a suspicionless drug screening program imposed by the City of Hollywood on all applicants for employment. The Court’s decision was based on two 1989 decisions by the United States Supreme Court in which the Court set standards for the drug testing government workers – upholding a suspicionless drug testing program for employees of the U.S. Customs Service who are in positions having direct involvement in drug interdiction or are required to carry firearms and for railroad workers involved in “safety sensitive” positions.

Scott on Tuesday signed another drug testing measure into law. It requires applicants to pass drug tests before they collect temporary cash assistance. Scott signed the measure during a Panama City visit that makes Florida the only state in the nation to test all applicants for Temporary Assistance to Needy Families before they can collect benefits, according a Washington-based public policy group that says other states have narrower testing requirements.

The new law (HB 353) requires recipients to pay for the tests and periodically be retested at their expense to continue receiving benefits. Recipients will be reimbursed if the tests, which cost anywhere from $10 to $70, depending on who is estimating, come back negative. Backers say the law will help ensure that taxpayer money goes for helping the family get back on its feet and not used to fuel a drug habit.

Beginning July 1, recipients who test positive for drugs would be denied benefits for a year. A second failed test would result in a three-year ban. Recipients who complete a drug rehab program can re-apply in six months. In two parent households, both adults would be tested. Benefits to children could be awarded to a third party recipient, who must also pass a drug screen. The law will not affect the federal food stamp program.

Critics including the ACLU of Florida and Florida Legal Services, which say they will decide in the coming weeks if they plan to file suit challenging the law, a version of which was struck down in 2003 by a federal court in Michigan.

Appearing on a Fox News program on Wednesday, U.S. Rep. Corrine Brown, the Jacksonville Democrat, was acutely critical of the program. “It’s clearly unconstitutional and the governor and the lawyers knew it when they did it,” Brown said. “I mean, the governor ran that he was going to increase jobs. He’s cut jobs in every single category. We’re cutting 500 positions from the agency that administered the program. I mean, this is terrible. We are costing taxpayers’ money in every single category, and this is a waste of taxpayers’ funds. Clearly, we’re going to court with this and clearly, you’re going to lose.”

Brown appeared opposite Sandy Rios, vice president of the conservative Family PAC, and a Fox News regular. “Seems to me like you’re wasting taxpayer’s funds if that money’s going to pay for the people’s drugs,” Rios said. “I don’t see how it’s an invasion of privacy. It’s voluntary; you don’t have to sign up. And by the way, drugs are illegal — so if you aren’t doing them you don’t have anything to worry about.”

Other states have studied the issue and decided that testing all recipients was not cost effective, the Washington, D.C.-based Center for Legal and Social Policy wrote in a study released in January. Most states conduct drug assessments but do not require across the board urine or blood tests. Some require drug tests from recipients who have been convicted of felony drug crimes.

Florida’s Republican-led Legislature also passed a handful of controversial measures dealing with elections, doctor-patient conversations and abortion, all of which may be targeted for legal challenges.

“This has to be stopped here,” Simon told reporters Wednesday. “There is a concerted attack on the personal freedoms of all Floridians.”

–Michael Peltier, News Service of Florida, and FlaglerLive

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25 Responses for “ACLU Sues Rick Scott As Drug Testing of Public Employees and Welfare Recipients Begins”

  1. palmcoaster says:

    Illegal to say the least as an invasion of privacy and a useless waste of hard to come by taxpayers funds…Instead he should approve a state database mandate of drugs sales. Hypocrite. We are supposed to be broke then why to pay for millions of individuals drug test…because Rick Scott private business will profit from the lab test at about $10 to $70 each? What happens if in the multitude of testing mistakes in mishandling take place….the innocent looses its job or welfare check…? Are American public employees and welfare recipients unjustifiably targeted or are they “individuals of a lesser God” to teabagger Rick Scott and his croonies?

  2. Ernie says:

    Follow the money. The drugtesting lobby (see has probably gotten to the Guv or one of his aides. Random testing is ineffective — many highschools have tried it and dropped it after realizing it was a big waste of money.

  3. Anonymous says:

    If we delve a little further we find…Florida Gov. Rick Scott, was CEO of a chain of hospitals found guilty of the single largest case of MEDICARE FRAUD IN HISTORY on his watch. Systematically bilking medicare of BILLIONS and fined 1.7 BILLION. Since then he started a chain of clinics, multiplying like an epidemic, in Florida, while hospitals are going bankrupt. Scott recently transferred ownership of his chain of Solantic Clinics…to HIS WIFE. I wonder where half the state of Florida will be going, 4 times a year, to get their cup to pee in?

  4. Biff says:

    If we delve a little further we find…Florida Gov. Rick Scott, was CEO of a chain of hospitals found guilty of the single largest case of MEDICARE FRAUD IN HISTORY on his watch. Systematically bilking medicare of BILLIONS and fined 1.7 BILLION. Since then he started a chain of clinics, multiplying like an epidemic, in Florida, while hospitals are going bankrupt. Scott recently transferred ownership of his chain of Solantic Clinics…to HIS WIFE. I wonder where half the state of Florida will be going, 4 times a year, to get their cup to pee in?

  5. R U Kidding Me says:

    If it is illegal to test State Workers and Welfare Recipients is it legal to test workers in the private sector that pay the taxes to fund those tested?

  6. Bob Z. says:

    I just read that the plaintiff, Richard Flamm, is in an agency not under the Gov’s purview, and that they may need a replacement. Regardless, why did the Gov. exclude some State employees from being tested? Besides, employees that work in safety-related positions, positions involving work with children, etc. are already subject to drug testing. And before someone says it, there is a difference between what private employers and public employers can do in regards to testing – this lawsuit deals with public employees and it was already decided in the past so I cannot see how the Gov’s order will stand up in court, even though he said he will take it to the Supreme Court…he would not even be in office if it ever came to that!

  7. Lucine says:

    Scott is used to the courtroom visit. And to think, this is just the beginning. I wonder what will happen when he continues to not properly fund education…hmmm….

    Let’s get to work Florida…on impeaching this idiot.

  8. Jojo says:

    Yes, he is an idiot, a smart idiot. Do you know that people on welfare are not living high on the hog. Scott is forcing welfare recipients to pay for the test out of their pocket and are reimbursed when the test comes back negative. This is badly needed money for food perhaps for the child of welfare recipients. This is an absolute disgrace. Is this what we have lowered ourselves to become. To beat up on the lowest of the lowest in all of humanity. I have never been more ashamed to being a resident of Florida. It is absolutely despicable to be associated with this State and a Governor, who in my view, is becoming a Nazi Himmler more and more each day. Hey Scott, why don’t you march welfare recipients off with their children to the gas chambers. It’s quicker and less humiliating than what your doing to a class of downtrodden people on their luck. You’re a prick!

    Leave a Reply

  9. Teresa Grocki says:

    public safety is EXACTLY the dept that needs to be monitored. and YES, Welfare recipients SHOULD be screened too

  10. Stephanie E Raeburn says:

    I’m all for protecting our civil liberties but also feel that this could be a great start in determining “real candidates” for public assistance and government jobs
    promoting much needed competition

  11. Diana Becker le Brun says:

    Perhaps, our Gov. should worry about job growth and the glut of homes in this State. This in unconstitutional and the state will waste a lot of money trying to defend this stupid, playing to his base law. Shame on you Gov. Scott.

  12. Matt Calkins says:

    Since it was brought up let’s talk about wasting money. How much money is given out to welfare every month? Every year. I pay taxes so that a lot of lazy drug smoking and drug dealing low life’s can sit at home on the tax payer’s dime. I’m …all for it and if you are that concerned with what it’s gonna cost think about what it costs us now. You can’t get a job without a drug test. You shouldn’t get benefits either. Go Gov. Scoot. I don’t know why he takes so much heat for trying to fix our problems.

  13. Newton White says:

    many jobs require drug testing pre employment, and have random testing I find no problem with it in the workplace. You are free to not have a drug test, or a job. You are not required to take welfare, it is not unreasonable to require screening for illegal drug use, before you are given public money.

  14. Anonymous says:

    Can you imagine what Florida is gonna be like next year, the year after that? 2015 will be the year of Jubilee. When the state is returned to the people. What are the odds he does something to get ousted before that. That’s my wacky prediction. Ousted in two at five to one.

  15. Anonymous says:

    Matt, It’s the same old rhetoric like you’re the only one that pays taxes that you probably cheat on anyway. The same old spiel that welfare recipients are drug induced, smoke induced and alcoholic. You categorize them as low life’s that sit at home all day and do nothing. You are one ignorant low life individual. Perhaps you should walk a mile in those you classify as low life’s. If you want to give up your, not so much, Constitutional rights but Human Rights, that’s your business. The economy is tanking, unemployment is rising and their are no jobs – at least good decent paying jobs to support a family. Even college degrees mean nothing. Take all those graduating – good luck. Rick Scott is hell bent and fixated on teachers. Personally, I don’t know why anyone would want to be a teacher today? People, even welfare recipients and their children need to eat. You can’t ignore the problems. It spills out to other areas of society. People steal, beg, rob, go to jail, even die just to survive. It’s a vicious circle that comes full circle to us and you, Matt. We pay for it one way or another whether your taxes, my taxes or Federal grant money. What happened to training programs for people on welfare. Probably not working in this time of economic stress – basically, no jobs. So, slick Rick wants to put them in the street. Let me ask you Matt, do you think a child living on the street with his parents will grow up forgetting that?

    Rick Scott is nothing but a Felon if you ask me. If ever there was a person that is robbing the State and Country – it’s Rick Scott.

  16. William says:

    I find the arguments supporting this criminal prick’s policies to be laughably hypocritical.

    OMG, look at ALL those dope-smoking welfare recipients getting high on the taxpayer dime! unacceptable!!

    What this (il)logic fails to address is the fact that this crook’s former company, Columbia HCA, bilked the taxpaying public out of billions, to the point that said company received the largest fine in history for fraud.

    Really must be tough to see anything resembling reality when one has his/her head so far up one’s ass.

  17. mellvis says:

    It is no more acceptable to pee test public employees and welfare recipients than it is to test private sector job applicants. Gov. Scott has a stake in the drug testing business, and he ALSO wants to tie up the courts and keep the People busy trying to undo what he HAS TO KNOW is already declared unconstitutional.

    Anyone who says “I have nothing to hide, no big deal” is missing the point. The point is, your URINE should not be subject to government inspection, in order to receive money for food or for a JOB. People who can justify that might as well hold their arms out for a tattoo now…

  18. nanci whitley says:

    So… is this for “full blown” welfare? Just food stamps? Children in foster care? Working people in section 8 housing? people on medicare? Students at state schools? How old do the children need to be before they are tested? 2? 5? 10? Wouldn’t it be more prudent to use the money to go after deadbeat dads?

  19. Jojo says:

    Or, deadbeat moms

  20. liveinbunnell says:

    If those of us that work & pay taxes can be tested to start employment or randomly throughout our employment, then those that get Welfare & Unemployment should be randomly tested and should also be tested prior to receiving any monies from the state.

  21. kevin says:

    Dear Nanci,

    I just wanted to add”…or go after just about anything else besides that idea.”

    I really am interested in what he expects the benefits will be from drug testing these people. What is particularly friustrating (code for angry to the point of my eyeballs exploding) about this plan to test recipients is what happens if they test positive and are truly desperately in need of welfare assistance? Will assistance be withheld, causing them to starve, not have electricity, heat, or cause the children to have their nutritional needs remain unfulfilled?

    This is something that both sides of the isle and all others between, should come together on and demand it be dropped, warning Mr. Scott of the political consequences–the only thing he and 98% of politicians are concerned about when it comes to their thinking.

  22. suewho1010 says:

    I think he should drug test all recipients that are receiving welfare checks. But first he should look at the amount of muney that the State of Florida deems substanial. A mother and one child is entitled to 180.00 a month of cash assistance. Where in this entire county can a mother and child survive on 180.00?

  23. mara says:

    The pittance of money these people get does not justify this testing. As a matter of fact, the pittance of money most people make after taxes does not justify pre-employment screening, any more than it justifies this Big Brother crap for welfare recipients.

    People who think this is ok because we pre-employment screen are way too accepting of the idea, period. It should have been fought the first time a Supreme Court called it “constitutional”. It is sickening that we rolled over for that nonsense and accepted it. Shame on anyone who thinks their right to POSSIBLE safety trumps my right to the privacy of my own bodily fluids. SHAME.

  24. aGoodSolution says:

    Why don’t we require drug screening for anyone that gets any kind of money or service from the government. It doesn’t matter if its assistance money or a pay check or even a service. Start with the highest paid first and work your way down the money list.

  25. Amy says:

    I love the argument that all welfare recipients are lazy, drug addicted leeches on society that do nothing but sit around all day wasting tax payer money.

    Do the math-


    rent- $40 assume its housing otherwise $600
    Utilities $150
    water $50
    cable $80 – must have for lazy drug addict
    smart phone $80
    crack habit that equates to drug addicted lifestyle $150/wk
    marijuana habit $50/wk

    That doesn’t even come close to adding up! This is a joke of a regulation. I hope this governor is called on his criminal behavior and sent directly to jail. Then again, all these people will move to other states where they are subject to less standards. I think he is gonna piss a lot of people off before this is said and done!

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