American Journal of Law & Medicine

Public Assistance, Drug Testing, and the Law: The Limits of Population-Based Legal Analysis


Courts will also consider the nature and intrusiveness of the search. Most states have proposed to test welfare recipients for drugs using a urine test. In each of the special needs cases where the Court has upheld drug testing policies, urine samples were monitored by "listening for normal sounds of urination," either behind a closed stall or by standing directly behind the person producing a urine sample, but not under direct observation. (275) Consistent with Skinner and Von Raab, Florida law would not require laboratories to monitor TANF applicants as they produce urine samples under direct observation. Instead Florida law simply instructs the Florida DCF to provide each person with a "reasonable degree of dignity" consistent with the state's interest in obtaining a reliable sample. (270)

More difficult questions arise with respect to the intrusiveness of a drug test. Before a federal district court issued a preliminary injunction against H.B. 353 in November 2011, temporarily halting Florida's drug testing program, H.B. 353 allowed DCF to enter drug test results into a database accessible by law enforcement agencies. (277) Florida also indicated its intention to report test results to the Florida Child Abuse Hotline. (278) In February 2012, however, the Florida DCF retreated from its earlier position. Instead, DCF has published a new rule, indicating that the Department will not report test results to the Child Abuse Hotline, nor will DCF share test results with law enforcement. (279)

1. A Fourth Amendment Perspective

The Supreme Court has provided uncertain and conflicting guidance as to whether drug test results obtained through the special needs doctrine can be shared with law enforcement agencies or child protective services. In its classic formulation, the special needs doctrine permits suspicionless searches when governments confront special needs "beyond the normal need for law enforcement." (280) In its early special needs cases, however, the Supreme Court appeared untroubled when the fruits of a special needs search were used in subsequent criminal proceedings. In T.L.O., Justice Blackmun did not object when prosecutors charged T.L.O. with juvenile delinquency based on evidence of drug dealing seized from her purse. (281) Nor did Justice Scalia object in Griffin when police officers searched Griffin's home and prosecutors used a gun seized in that search to charge Griffin with a weapons offense. (282)

In its more recent special needs cases, the Supreme Court has suggested that handing test results over to law enforcement officials would impugn an otherwise valid administrative scheme. In Ferguson v. City of Charleston, the Supreme Court struck down state regulations that permitted drug tests for obstetrics patients without their consent and without a reasonable suspicion of drug use, owing to the excessive entanglement of law enforcement in the creation and execution of the policy. (283) Justice Stevens indicated that the "critical difference" between the hospital drug testing policy on the one hand and previous special needs cases on the other, was that in each of the previous cases, the special need for drug testing was "divorced from the State's general interest in law enforcement." (284) In Vernonia, for example, the Court held that the School District instituted a drug testing policy for "distinctly nonpunitive purposes," namely protecting student athletes from drug-related injury and deterring illegal drug use among students. (285) In Skinner, the Court indicated that the Federal Railroad Administration required drug tests to prevent train accidents and fatalities, "not to assist in the prosecution of employees." (286)

At times, proponents of drug testing have alluded to state interests that appear to be distinguishable from a general state interest in law enforcement; for example, a state interest in ensuring that taxpayer dollars reach their intended beneficiaries, or eliminating drug-related barriers to employment. (287) Nonetheless, throughout the debate surrounding drug testing and public assistance, states have largely rested the case for drug testing on a state interest in ensuring that taxpayer dollars are not used to subsidize illegal drug use. In Lehron, Florida averred: "[T]he government has spent untold resources over the last thirty years fighting the "war on drugs." Surely, then, the government has a paramount interest in not funding the drug epidemic and its associated public ills." (288)

To that end, opponents of drug testing might argue that states have failed to demonstrate that the primary purpose of drug testing is to further a valid non-law enforcement interest. However, notwithstanding Ferguson, the Supreme Court has also said that a lawful suspicionless search may serve multiple purposes, including a state interest in law enforcement. In New York v. Burger, the Court confronted the mirror image of Ferguson--the primary purpose of the search was administrative, but authorities also discovered evidence of criminal conduct in the process. (289) Ironically, in an opinion by Justice Blackmun, the Supreme Court upheld a New York statute designed to prevent auto theft by authorizing the police to conduct suspicionless searches of automobile junkyards. (290) According to Justice Blackmun, what lower courts failed to realize was that "a State can address a major social problem both by way of an administrative scheme ... and through penal sanctions." (291) Penal laws and administrative regulations may aim toward the same "ultimate purpose" even if the regulatory goals of an administrative search are narrower. (292) The Court added that auto theft was a "significant social problem" and New York had a "substantial interest in regulating the vehicle-dismantling industry because of this problem." (293)

Appealing to Burger, supporters of drug testing might argue that a valid administrative search may have the same ultimate purpose as the penal law--namely, combating illegal drug use--even if its regulatory goals are narrower, like weeding illegal drug users out of public assistance programs. Moreover, the fruits of that search can also be used in a criminal prosecution. As Justice Blackmun argued in Burger, a valid administrative scheme does not become unconstitutional merely because an officer discovers evidence of a crime in addition to a violation of the administrative statute itself. (294) Nor is evidence garnered from that search inadmissible.

In Ferguson, Justice Stevens attempted to reconcile the tension between the hospital drug testing policy and Burger by proposing that where the individual interest in privacy is "particularly attenuated" or where the discovery of criminal evidence is "merely incidental to the purpose of the administrative search," the search may fall within the scope of the special needs doctrine. (295) Although the Supreme Court has long held that a lesser expectation of privacy attaches to commercial property and other "closely regulated industries," in what sense was the discovery of stolen auto parts "merely incidental"? The statute authorized police officers to search junkyards for stolen vehicles, in an effort to combat what the Burger Court itself described as a "serious social problem in automobile theft." (296) The Court's attempt to explain away the discovery of stolen auto parts as "merely incidental," and thereby salvage the holding in Burger, speaks to a longstanding dilemma in the special needs doctrine: In what sense must a special need lie "beyond the normal need for law enforcement?" (297) Ferguson attempted to answer that question by emphasizing that the immediate objective of the hospital drug testing policy was to generate evidence that would be admissible in a subsequent criminal prosecution. (298) The Court also highlighted the excessive involvement of law enforcement officers in both the creation and day-to-day administration of the policy. (299)

Unlike in Ferguson, there is little evidence that the "immediate objective" or "primary purpose" of imposing a drug testing requirement on public assistance is to generate evidence for a criminal proceeding. Nor is there evidence of an excessive entanglement between public assistance programs and law enforcement. To that end, courts might well conclude that the primary purpose of requiring TANF recipients to pass a drug test is administrative; therefore, evidence of illegal drug use is admissible in a criminal prosecution under Burger.

2. A Public Health Perspective

What can public health and the population perspective add to this disarray? The differences between a population-based legal analysis, on the one hand, and a conventional Fourth Amendment analysis on the other are markedly evident with respect to the nature and intrusiveness of a special needs search. From a conventional Fourth Amendment perspective, the central questions with respect to the nature and intrusiveness of a search are whether drug testing furthers a valid non-law enforcement interest, and whether sharing test results with third parties would violate a reasonable expectation of privacy held by public assistance recipients. However, from a public health perspective, the important issues have little to do with the Ferguson problems that arise when the fruits of a special needs search are turned over to law enforcement. Instead, the important questions concern the impact of drug testing requirements on the health of illegal drug users and the people around them.

A proponent of population-based legal analysis would keep two considerations in mind. First, regulations to protect the public's health often involve risk-risk tradeoffs. Such tradeoffs occur when interventions designed to decrease one risk simultaneously increase another. (300) Second, a public health perspective, particularly a population-level perspective, would consider the likely health impacts of drug testing requirements on people who use illegal drugs, as well as likely "spillover effects" on their minor children and the communities around them. Requiring public assistance recipients to pass a drug test would decrease the risk that taxpayer dollars are used to fund illegal drug use. On the other hand, if parents are concerned that they might test positive for drugs, then sharing positive test results with child protective services or law enforcement could deter parents from applying for public assistance for fear that they might lose custody of their children or face incarceration. Paradoxically, by driving at-risk parents away from social services, policies designed to protect children could actually increase the risk that children who are in abusive homes will go undetected.

Qualitative studies on pregnant women who use illegal drugs have shown that sharing test results with law enforcement tends to discourage women from seeking necessary assistance. (301) A study by the U.S. General Accounting Office (the precursor to the U.S. Government Accountability Office) found that for drug-dependent women, the fear of legal repercussions appeared to be a potent barrier to health care:

   Drug treatment and prenatal care providers told us that the
   increasing fear of incarceration and losing children to foster care
   is discouraging pregnant women from seeking care. Women are
   reluctant to seek treatment if there is a possibility of
   punishment. They also fear that if their children are placed in
   foster care, they will never get their children back. (302)

Anticipating such problems, most states allow parents who test positive for drugs to appoint a third-party beneficiary to receive benefits on behalf of a minor child. (303) However, parents may be reluctant to disclose their need for a third-party beneficiary to a friend or family member. According to the Florida DCF, the number of TANF applications has declined since drug testing began in July 2011, suggesting both that H.B. 353 has had its intended deterrent effect, but also that TANF applicants who use drugs have not enrolled their children in TANF through third-party beneficiaries. (304)

From a public health perspective, sharing positive test results with law enforcement officers is clearly a bad idea--doing so would drive an already marginalized group of women further underground. The problem for population-based analysis is this: What legal significance, if any, should courts attach to these insights? Should we say that these policies are unreasonable and unconstitutional insofar as they conflict with the insights of public health? Probably not. Doing so would invite courts to outstrip their competence and open population-based analysis to charges of Lochner-ing in the name the public health.

Nonetheless, Parmet presents the population perspective not merely as a set of public health inspired values from which to critique legal discourse, but also as a tool of legal reasoning. (305) She urges courts to embrace population health as "a chief value of law," one that "judges and lawyers should apply when they interpret legal texts and authority." (306) However, if we think that courts should not allow population health concerns to trump conventional legal reasoning--or that population health should only play a supporting role in our thinking about the nature and intrusiveness of a special needs search--Parmet will find it difficult to make good on her claim that population-based analysis is indeed a tool of legal reasoning, not merely a policy perspective from which to critique legal decisions.


Courts will also ask whether laws that condition public assistance benefits on passing a drug test are "reasonably likely" to achieve their objectives. Although several states have passed laws that require TANF applicants to pass a drug test before they qualify for benefits, state laws differ from one another in important ways. In Florida and Georgia, state laws require all TANF applicants to pass a drug test before they qualify for assistance. (307) In Arizona, Missouri and Utah, state laws require a reasonable suspicion of illegal drug use before TANF programs can require a drug test. (308) Although a few states, like Missouri, would allow TANF applicants who test positive for drugs to retain their benefits on the condition that they participate in a substance abuse treatment program, (309) Florida and Georgia would not. (310) Eventually, all states with these laws would suspend assistance to someone who continues to test positive for drugs.

Since Vernonia, the Supreme Court has explicitly addressed effectiveness as an element of the special needs doctrine. However, courts tend to assume that suspicionless searches are reasonably likely to accomplish their objectives. (311) As Part IV.C argues, courts should assume a more aggressive posture when evaluating the effectiveness of a search under the special needs doctrine. The Supreme Court should also incorporate a least-intrusive alternative requirement into the special needs doctrine. Without a requirement to seek the least-intrusive alternative, special needs searches are needlessly over-inclusive.

1. Taxpayer Subsidy of Illegal Drug Use

The Supreme Court has been of two minds about the role of effectiveness in a special needs analysis. In Von Raab, the Court rejected the petitioner's contention that requiring a drug test as a condition of promotion in the Customs Service was unreasonable since employees could schedule the date of their drug test and arguably abstain from illegal drug use in advance of the test. (312) Justice Kennedy reasoned that drug addicts would be unable to abstain from drugs, even for a limited period of time. He also noted that in any event, the amount of time that it would take for a particular drug to become undetectable in the system varies widely from person to person, and that information would likely remain unknown to the employee. (313) Several years later in Chandler, however, the Supreme Court struck down suspicionless drug testing as a condition of placement on the Georgia state ballot, reasoning that "Georgia's certification requirement [was] not well designed to identify candidates who violate antidrug laws...." (314) As Justice Ginsburg remarked, drug tests scheduled by the candidate were "no secret" and the government failed to explain why ordinary law enforcement mechanisms were insufficient to identify illegal drug users "should they appear in the limelight of the public stage." (315)

Requiring TANF applicants to pass a drug test on their initial application for benefits would fail to identify the small number of TANF applicants who do in fact use drugs. Not unlike the drug tests at issue in Von Raab and Chandler, Florida's FI.B. 353 would require a onetime drug test as part of an initial application for TANF benefits, and, as in Chandler, the date of a drug test to be scheduled by the TANF applicant is "no secret." (316) States like Florida have failed to explain why most TANF applicants would be unable to abstain from illegal drug use long enough to avoid detection. Of those public assistance recipients who have reported illegal drug use during the past month or year, most report use of marijuana. (317) Marijuana is not a highly addictive substance, and for most people, the metabolites of marijuana become undetectable through urine analysis after 10 days. (318) A small number of public assistance recipients have reported use of "hard drugs" like cocaine and methamphetamine. (319) Although highly addictive, the metabolites of these drugs are detectable in the system for only a few days. (320) Most TANF applicants, save those who are prohibitively addicted, would probably be able to pass a scheduled drug test.

As in Chandler, state statutes that would require new TANF applicants to complete a scheduled drug test are not well designed to identify applicants who have violated antidrug laws, but what about random drug testing? In Marchwinski v. Howard, Michigan proposed to combine an initial drug test for TANF applicants with random drug testing for current TANF recipients. (321) Random drug testing would allow states to identify TANF applicants who have used illegal drugs; however, as this Article argues above, (322) courts are unlikely to see a state interest in ensuring that taxpayer dollars reach their intended beneficiaries as "substantial" within the meaning of Chandler.

2. Drug Use and Employment

Proponents of drug testing have also argued that statutes like H.B. 353 are designed to address government interests beyond merely identifying potential misuse of taxpayer dollars, for example, a state interest in giving people an incentive to get off drugs or encouraging the transition from welfare to work. (323) What should we make of these claims? In 1997 Congress eliminated Supplemental Security Income (SSI) for people with a primary diagnosis of drug addiction. (324) Not unlike H.B. 353, the purpose of eliminating SSI benefits for people with a primary diagnosis of drug addiction was to encourage substance abusers to take responsibility for their illegal drug use. (325) Also not unlike H.B. 353, an important purpose of the federal benefit termination was to address a public perception that providing federal disability benefits to drug addicts only enabled their illegal drug use. …

Log in to your account to read this article – and millions more.