Constitutional Analysis of
Suspicionless Drug Testing Requirements
for the Receipt of Governmental Benefits
David H. Carpenter
Legislative Attorney
January 19, 2012
Congressional Research Service
7-5700
www.crs.gov
R42326
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Constitutional Analysis of Suspicionless Drug Testing
Summary
For decades, federal policymakers and state administrators of governmental assistance programs,
such as the Temporary Assistance for Needy Families (TANF) block grants, the Supplemental
Nutrition Assistance Program (SNAP, formerly Food Stamps), the Section 8 Housing Choice
Voucher program, and their precursors, have been concerned about the “moral character” and
worthiness of beneficiaries. For example, the Anti-Drug Abuse Act of 1988 made individuals who
have three or more convictions for certain drug-related offenses permanently ineligible for
various federal benefits. A provision in the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 went a step further by explicitly authorizing states to test TANF
beneficiaries for illicit drug use and to sanction recipients who test positive. In part prompted by
tight state and federal budgets and increased demand for federal and state governmental
assistance resulting from precarious economic conditions, some policymakers recently have
shown a renewed interest in conditioning the receipt of governmental benefits on passing drug
tests. For example, the House of Representatives, on December 13, 2011, passed a provision that
would have authorized states to require drug testing as an eligibility requirement for certain
unemployment benefits. Additionally, lawmakers in a majority of states reportedly proposed
legislation in 2011 that would require drug testing beneficiaries of governmental assistance under
certain circumstances.
Federal or state laws that condition the initial or ongoing receipt of governmental benefits on
passing drug tests without regard to individualized suspicion of illicit drug use are vulnerable to
constitutional challenge. To date, only two state laws requiring suspicionless drug tests as a
condition to receiving governmental benefits have sparked litigation, and neither case has been
fully litigated on the merits. To date, the U.S. Supreme Court has not rendered an opinion on such
a law; however, the Court has issued decisions on drug testing programs in other contexts that
have guided the few lower court opinions on the subject.
Constitutional challenges to suspicionless governmental drug testing most often focus on issues
of personal privacy and Fourth Amendment protections against “unreasonable searches.” The
reasonableness of searches generally requires individualized suspicion, unless the government
can show a “special need” warranting a deviation from the norm. However, governmental benefit
programs like TANF, SNAP, unemployment compensation, and housing assistance do not
naturally evoke special needs grounded in public safety that the Supreme Court has recognized in
the past. Thus, if lawmakers wish to pursue the objective of reducing the likelihood of taxpayer
funds going to individuals who abuse drugs through drug testing, legislation that only requires
individuals to submit to a drug test based on an individualized suspicion of drug use is less likely
to run afoul of the Fourth Amendment. Additionally, governmental drug testing procedures that
restrict the sharing of test results and that limit the negative consequences of failed tests to the
assistance program in question will be on firmer constitutional ground.
Numerous CRS reports focusing on policy issues associated with governmental benefit programs
also are available, including CRS Report R40946, The Temporary Assistance for Needy Families
Block Grant: An Introduction, by Gene Falk; CRS Report R42054, The Supplemental Nutrition
Assistance Program: Categorical Eligibility, by Gene Falk and Randy Alison Aussenberg; CRS
Report RL34591, Overview of Federal Housing Assistance Programs and Policy, by Maggie
McCarty et al.; and CRS Report RL33362, Unemployment Insurance: Programs and Benefits, by
Katelin P. Isaacs and Julie M. Whittaker.
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Contents
Background...................................................................................................................................... 1
Fourth Amendment Overview ......................................................................................................... 2
Supreme Court Precedent ................................................................................................................ 3
Synthesis of Supreme Court Precedent ..................................................................................... 7
Preliminary Lower Court Opinions on the Michigan and Florida Laws ......................................... 7
The Challenged Michigan Law—Marchwinski v. Howard ....................................................... 8
The Challenged Florida Law—Lebron v. Wilkens..................................................................... 9
Implications for Future Federal or State Legislation ..................................................................... 12
Contacts
Author Contact Information........................................................................................................... 13
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Constitutional Analysis of Suspicionless Drug Testing
Background
For decades, federal policymakers and state administrators of governmental assistance programs,
such as the Temporary Assistance for Needy Families (TANF) block grants,1 the Supplemental
Nutrition Assistance Program (SNAP, formerly Food Stamps),2 the Section 8 Housing Choice
Voucher program,3 and their precursors have been concerned about the “moral character” and
worthiness of beneficiaries.4 Beginning in the 1980s, the federal government imposed restrictions
on the receipt of certain governmental benefits for individuals convicted of drug-related crimes as
one component of the broader “War on Drugs.” For example, the Anti-Drug Abuse Act of 19885
made individuals who have three or more convictions for certain drug-related offenses
permanently ineligible for various federal benefits.6 A provision in the Personal Responsibility
and Work Opportunity Reconciliation Act of 19967 went a step further by explicitly authorizing
states to test TANF beneficiaries for illicit drug use and to sanction recipients who test positive.8
In part prompted by tight state and federal budgets and increased demand for federal and state
governmental assistance resulting from precarious economic conditions, some policymakers
recently have shown a renewed interest in conditioning the receipt of governmental benefits on
passing drug tests. For example, the House of Representatives, on December 13, 2011, passed a
provision that would have authorized states to require drug testing as an eligibility requirement
for certain unemployment benefits.9 Additionally, lawmakers in a majority of states reportedly
proposed legislation in 2011 that would require drug testing beneficiaries of governmental
assistance under certain circumstances.10
1 For more information on TANF, see CRS Report R40946, The Temporary Assistance for Needy Families Block
Grant: An Introduction, by Gene Falk.
2 For more information on SNAP, see CRS Report R42054, The Supplemental Nutrition Assistance Program:
Categorical Eligibility, by Gene Falk and Randy Alison Aussenberg.
3 For more information on the Section 8 Housing Choice Voucher and other federal housing assistance programs, see
CRS Report RL34591, Overview of Federal Housing Assistance Programs and Policy, by Maggie McCarty et al.
4 King v. Smith, 392 U.S. 319, 320-25 (1967) (discussing various eligibility requirements of the Aid to Families with
Dependent Children (AFDC) welfare program and its precursors that attempted to distinguish between the “worthy”
poor and those unworthy of assistance) (held: an Alabama state regulation that prohibited AFDC assistance to
dependent children of a mother who had a sexual relationship with an “able-bodied man” to whom she was not married
violated the Social Security Act).
5 P.L. 100-690 §5301.
6 This provision has since been amended. See 21 U.S.C. §862a.
7 P.L. 104-193.
8 P.L. 104-193 §902, codified at 21 U.S.C. §862b (“Notwithstanding any other provision of law, States shall not be
prohibited by the Federal Government from testing welfare recipients for use of controlled substances nor from
sanctioning welfare recipients who test positive for use of controlled substances.”). This provision, in and of itself, does
not raise constitutional concerns because it does not directly impose drug testing; however, state drug testing programs
that are implemented pursuant to this authority may be vulnerable to constitutional challenge.
9 H.R. 3630, the Middle Class Tax Relief and Job Creation Act of 2011, as engrossed in the House, §2127 (stating, in
relevant part: “Nothing in this Act or any other provision of Federal law shall be considered to prevent a State from
testing an applicant for unemployment compensation for the unlawful use of controlled substances as a condition for
receiving such compensation; or denying such compensation to such applicant on the basis of the result of such
testing.”). On December 17, 2011, the Senate passed an amended version of H.R. 3630 that did not include the drug
testing provision.
10 A. G. Sulzberger, States Adding Drug Test as Hurdle for Welfare, N.Y. Times, October 10, 2011, available at
http://www.nytimes.com/2011/10/11/us/states-adding-drug-test-as-hurdle-for-welfare.html?pagewanted=all (“Policy
makers in three dozen states this year proposed drug testing for people receiving benefits like welfare, unemployment
(continued...)
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Federal or state laws that condition the initial or ongoing receipt of governmental benefits on
passing drug tests without regard to individualized suspicion of illicit drug use are vulnerable to
constitutional challenge. Constitutional challenges to suspicionless governmental drug testing
most often focus on issues of personal privacy and Fourth Amendment protections against
“unreasonable searches.” To date, only two state laws requiring suspicionless drug tests as a
condition to receiving governmental benefits have sparked litigation, and neither case has been
fully litigated on the merits. To date, the U.S. Supreme Court has not rendered an opinion on such
a law; however, the Court has issued decisions on drug testing programs in other contexts that
have guided the few lower court opinions on the subject. These Supreme Court opinions also
likely will shape future judicial decisions on the topic.
To effectively evaluate the constitutionality of laws requiring suspicionless drug tests to receive
governmental benefits, this report first provides an overview of the Fourth Amendment. It then
reviews five Supreme Court decisions that have evaluated government-administered drug testing
programs in other contexts and provides an analysis of the preliminary lower court opinions
directly on point. The report concludes with a synthesis of the various factors that likely will be
important to a future court’s assessment of the constitutionality of these laws, which also may
guide policymaking on the subject.
Fourth Amendment Overview
The Fourth Amendment protects the “right of the people” to be free from “unreasonable searches
and seizures” by the government.11 This constitutional stricture applies to all governmental
action, federal, state, and local, by its own force or through the Due Process Clause of the
Fourteenth Amendment.12 Governmental conduct generally will be found to constitute a “search”
for Fourth Amendment purposes where it infringes “an expectation of privacy that society is
prepared to consider reasonable....”13 The Supreme Court, on a number of occasions, has held that
government-administered drug tests are searches under the Fourth Amendment.14 Therefore, the
constitutionality of a law that requires an individual to pass a drug test before he may receive
federal benefits likely will turn on whether the drug test is reasonable under the circumstances.
What a court determines to be reasonable depends on the nature of the search and its underlying
governmental purpose. Reasonableness under the Fourth Amendment generally requires some
form of individualized suspicion, which frequently takes the form of a warrant that is based on
probable cause.15 An exception to the ordinary individualized suspicion requirement has gradually
(...continued)
assistance, job training, food stamps and public housing.”).
11 U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.”).
12 Mapp v. Ohio, 367 U.S. 643, 655 (1961).
13 United States v. Jacobsen, 466 U.S. 109, 113 (1984).
14 See, e.g., Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822 (2002); Chandler v.
Miller, 520 U.S. 305 (1997); Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995); Nat’l Treasury Emp. Union v. Von
Raab, 489 U.S. 656 (1989); and Skinner v. Ry. Labor Exec. Ass’n, 489 U.S. 602 (1989).
15 Von Raab, 489 U.S. at 665 (“While we have often emphasized, and reiterate today, that a search must be supported,
as a general matter, by a warrant issued upon probable cause, our decision in Railway Labor Executives reaffirms the
(continued...)
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evolved, however, for cases where a “special need” of the government, not related to criminal law
enforcement, is found by the courts to outweigh any “diminished expectation” of privacy invaded
by a search.16 In instances where the government argues that there are special needs, courts
determine whether such searches are reasonable under the circumstances by assessing the
competing interests of the government conducting the search and the private individuals who are
subject to the search.17
Supreme Court Precedent
The Supreme Court has assessed the constitutionality of governmental drug testing programs in a
number of contexts. Five opinions are especially relevant to the question of whether a mandatory,
suspicionless drug test for the receipt of governmental benefits would be considered an
unreasonable search under the Fourth Amendment. Each of these decisions, Skinner v. Railway
Labor Executives Association,18 National Treasury Employees Union v. Von Raab,19 Vernonia
School District v. Acton,20 Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls,21 and Chandler v. Miller,22 is analyzed in turn.
Skinner focused on Federal Railroad Administration (FRA) regulations that required breath,
blood, and urine tests of railroad workers involved in train accidents.23 The Supreme Court held
that because “the collection and testing of urine intrudes upon expectations of privacy that society
has long recognized as reasonable,” FRA testing for drugs and alcohol was a “search” that had to
satisfy constitutional standards of reasonableness.24 However, the “special needs” of railroad
safety—for “the traveling public and the employees themselves”—made traditional Fourth
Amendment requirements of a warrant and probable cause “impracticable” in this context.25 Nor
was “individualized suspicion” deemed by the majority to be a “constitutional floor” where the
intrusion on privacy interests is “minimal” and an “important governmental interest” is at stake.26
According to the Court, covered rail employees had “expectations of privacy” as to their own
physical condition that were “diminished by reasons of their participation in an industry that is
regulated pervasively to ensure safety....”27 In these circumstances, the majority held, it was
(...continued)
longstanding principle that neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion,
is an indispensable component of reasonableness in every circumstance.” (internal citations omitted)); Chandler, 520
U.S. at 313 (“To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized
suspicion of wrongdoing.”).
16 Chandler, 520 U.S. at 313-14.
17 Id. at 314 (“courts must undertake a context-specific inquiry, examining closely the competing private and public
interests advanced by the parties.”).
18 489 U.S. 602 (1989).
19 489 U.S. 656 (1989).
20 515 U.S. 646 (1995).
21 536 U.S. 822 (2002).
22 520 U.S. 305 (1997).
23 Skinner, 489 U.S. at 606.
24 Id. at 617.
25 Id. at 621, 631.
26 Id. at 624.
27 Id. at 627.
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reasonable to conduct the tests, even in the absence of a warrant or reasonable suspicion that any
employee may be impaired.28
In the Von Raab decision, handed down on the same day as Skinner, the Court upheld drug testing
of U.S. Customs Service personnel who sought transfer or promotion to certain “sensitive”
positions, namely those involving drug interdiction or carrying firearms, without a requirement of
reasonable individualized suspicion.29 A drug test was only administered when an employee was
conditionally approved for a transfer or promotion to a sensitive position and only with advanced
notice by the Customs Service.30 According to the Court,
the Government’s compelling interests in preventing the promotion of drug users to positions
where they might endanger the integrity of our Nation’s borders or the life of the citizenry
outweigh the privacy interests of those who seek promotions to those positions, who enjoy a
diminished expectation of privacy by virtue of the special physical and ethical demands of
those positions.31
Neither the absence of “any perceived drug problem among Customs employees,” nor the
possibility that “drug users can avoid detection with ease by temporary abstinence,” would defeat
the program because “the possible harm against which the Government seeks to guard is
substantial [and] the need to prevent its occurrence furnishes an ample justification for reasonable
searches calculated to advance the Government’s goal.”32
In Vernonia, the Court first considered the constitutionality of student drug testing in the public
schools. At issue was a school district program for random drug testing of high school student
athletes, which had been implemented in response to a perceived increase in student drug activity.
All student athletes and their parents had to sign forms consenting to testing, which occurred at
the season’s beginning and randomly thereafter for the season’s duration. Students who tested
positive were given the option of either participating in a drug assistance program or being
suspended from athletics for the current and following seasons.33
A 6 to 3 majority of the Court upheld the program against Fourth Amendment challenge. Central
to the majority’s rationale was the “custodial and tutelary” relationship that is created when
children are “committed to the temporary custody of the State as schoolmaster.”34 This
relationship, in effect, “permit[s] a degree of supervision and control that could not be exercised
over free adults.”35 Students had diminished expectations of privacy by virtue of routinely
required medical examinations, a factor compounded in the case of student athletes by insurance
requirements, minimum academic standards, and the “communal undress” and general lack of
28 Id. at 633.
29 Von Raab, 489 U.S. at 679.
30 Id. at 672.
31 Id. at 679.
32 Id. at 673-75.
33 Vernonia, 515 U.S. at 649-50.
34 Id. at 654.
35 Id. at 654-56.
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privacy in sports’ locker rooms.36 Because “school sports are not for the bashful,” student athletes
were found to have a lower expectation of privacy than other students.37
Balanced against these diminished privacy interests were the nature of the intrusion and
importance of the governmental interests at stake. First, the school district had mitigated actual
intrusion by implementing urine collection procedures that simulated conditions “nearly identical
to those typically encountered in public restrooms”; by analyzing the urine sample only for
presence of illegal drugs—not for other medical information, such as the prevalence of disease or
pregnancy; and by insuring that positive test results were not provided to law enforcement
officials.38 School officials had an interest in deterring student drug use as part of their “special
responsibility of care and direction” toward students.39 That interest was magnified in Vernonia
by judicial findings that, prior to implementation of the program, “a large segment of the student
body, particularly those involved in interscholastic athletics, was in a state of rebellion ... fueled
by alcohol and drug abuse....”40
Consequently, the Court approved the school district’s drug testing policy, reasoning that the
Fourth Amendment only requires that government officials adopt reasonable policies, not the
least invasive ones available. The majority in Vernonia, however, cautioned “against the
assumption that suspicionless drug-testing will readily pass muster in other constitutional
contexts.”41
Earls concerned a Tecumseh Public School District policy that required suspicionless drug testing
of students wishing to participate “in any extracurricular activity.”42 Such activities included
Future Farmers of America, Future Homemakers of America, academic teams, band, chorus,
cheerleading, and athletics. Any student who refused to submit to random testing for illegal drugs
was barred from all such activities, but was not otherwise subject to penalty or academic sanction.
Lindsay Earls challenged the district’s policy “as a condition” to her membership in the high
school’s show choir, marching band, and academic team.43
By a 5 to 4 vote, the Court held that the Tecumseh school district’s drug testing program was a
“reasonable means” of preventing and deterring student drug use and did not violate the Fourth
Amendment. In its role as “guardian and tutor,” the majority reasoned, the state has responsibility
for the discipline, health, and safety of students whose privacy interests are correspondingly
limited and subject to “greater control than those for adults.”44 Moreover, students who
participate in extracurricular activities “have a limited expectation of privacy” as they participate
in the activities and clubs on a voluntary basis, subject themselves to other intrusions of privacy,
and meet official rules for participation.45 The fact that student athletes in the Vernonia case were
regularly subjected to physical exams and communal undress was not deemed “essential” to the
36 Id. at 657.
37 Id.
38 Id. at 658.
39 Id. at 662.
40 Id. at 662-63.
41 Id. at 664-65.
42 Earls, 536 U.S. at 826.
43 Id. at 826-27. The plaintiff did not protest the policy as applied to student athletics.
44 Id. at 830-31.
45 Id. at 831-32.
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outcome there.46 Instead, that decision “depended primarily upon the school’s custodial
responsibility and authority,” which was equally applicable to athletic and nonathletic activities.47
The testing procedure itself, involving collection of urine samples, chain of custody, and
confidentiality of results, was found to be “minimally intrusive” and “virtually identical” to that
approved by the Court in Vernonia.48 In particular, the opinion notes test results were kept in
separate confidential files only available to school employees with a “need to know,” were not
disclosed to law enforcement authorities, and carried no disciplinary or academic consequences
other than limiting extracurricular participation.49 “Given the minimally intrusive nature of the
sample collection and the limited uses to which the test results are put, we conclude that the
invasion of students’ privacy is not significant.”50
The majority concluded that neither “individualized suspicion” nor a “demonstrated problem of
drug abuse” was a necessary predicate for a student drug testing program, and there is no
“threshold level” of drug use that must be satisfied.51 “Finally, we find that testing students who
participate in extracurricular activities is a reasonably effective means of addressing the School
District’s legitimate concerns in preventing, deterring, and detecting drug use.”52
Conversely, the Court in Chandler struck down a 1990 Georgia statute requiring candidates for
governor, lieutenant governor, attorney general, the state judiciary and legislature, and certain
other elective offices to file a certification that they have tested negatively for illegal drug use.53
The majority opinion noted several factors distinguishing the Georgia law from drug testing
requirements upheld in earlier cases. First, there was no “fear or suspicion” of generalized illicit
drug use by state elected officials in the law’s background that might pose a “concrete danger
demanding departure from the Fourth Amendment’s main rule.”54 The Court noted that, while not
a necessary constitutional prerequisite, evidence of historical drug abuse by the group targeted for
testing might “shore up an assertion of special need for a suspicionless general search program.”55
Secondly, the law did not serve as a “credible means” to detect or deter drug abuse by public
officials.56 Since the timing of the test was largely controlled by the candidate rather than the
state, legal compliance could be achieved by a mere temporary abstinence.57 Another “telling
difference” between the Georgia case and earlier rulings stemmed from the “relentless scrutiny”
to which candidates for public office are subjected, as compared to persons working in less
exposed work environments.58 Any drug abuse by public officials is far more likely to be detected
46 Id. at 831.
47 Id.
48 Id. at 832-34.
49 Id. at 833.
50 Id. at 832-34.
51 Id. at 835-37.
52 Id. at 837.
53 Chandler, 520 U.S. at 322.
54 Id. at 318-19.
55 Id. at 319.
56 Id.
57 Id. at 319-20.
58 Id. at 321.
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in the ordinary course of events, making suspicionless testing less necessary than in the case of
safety-sensitive positions beyond the public view. The Court concluded:
We reiterate, too, that where the risk to public safety is substantial and real, blanket
suspicionless searches calibrated to the risk may rank as “reasonable”—for example,
searches now routine at airports and at entrances to courts and other official buildings. But
where, as in this case, public safety is not genuinely in jeopardy, the Fourth Amendment
precludes the suspicionless search, no matter how conveniently arranged.59
Synthesis of Supreme Court Precedent
Skinner and Von Raab indicate that “compelling” governmental interests in public safety or
national security may, in appropriate circumstances, override constitutional objections to testing
procedures by employees whose privacy expectations are diminished by the nature of their duties
or the workplace scrutiny to which they are otherwise subject. The Earls and Vernonia rulings
show that minors have diminished privacy expectations relative to adults, especially when drug
testing is implemented by individuals in a guardian or tutor capacity. Although not dispositive,
Earls, Vernonia, and Chandler also illustrate that drug testing programs imposed on a subset of
the population that has a “demonstrated problem of drug abuse” may tilt the balancing test in the
government’s favor, especially if the testing program is designed to effectively address the
problem. The extent to which drug test results are shared or kept confidential also may be
relevant to a court’s review of the competing public and private interests. Drug testing programs
that require results to be kept confidential to all but a small group of non-law enforcement
officials and that only minimally impact an individual’s life are more likely to be considered
reasonable. On the other hand, programs that allow drug test results to be shared, especially with
law enforcement, or that have the potential to negatively impact multiple or significant aspects of
an individual’s life, are less likely to be considered reasonable.
Preliminary Lower Court Opinions on the
Michigan and Florida Laws
Two state laws that established mandatory, suspicionless drug testing programs as a condition to
receiving TANF benefits have been challenged on Fourth Amendment grounds. The federal
district court ruling in Marchwinski v. Howard,60 which was affirmed by the U.S. Court of
Appeals for the Sixth Circuit (Sixth Circuit) as a result of an evenly divided en banc panel,61
involved a Michigan program that began in the late 1990s. The other ruling, Lebron v. Wilkens,62
is part of ongoing litigation regarding a program instituted pursuant to Florida law. Both decisions
were delivered at the preliminary stages of litigation and were not based on a complete
59 Id. at 323 (internal citations omitted).
60 Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000).
61 Marchwinski v. Howard, 60 Fed. App’x 601 (6th Cir. 2003) (affirming the district court decision in accordance with
Stupak-Thrall v. United States, 89 F.3d 1269 (6th Cir. 1996), because a 12-member en banc panel of appellate judges
was evenly split, with six judges wanting to affirm and six judges wanting to reverse the district court’s opinion).
62 Lebron v. Wilkens, Case No. 6:11-cv-01473-Orl-35DAB, Order Granting Motion for Preliminary Injunction (M.D.
Fla. 2011), available at http://www.aclufl.org/pdfs/2011-10-24-ACLUTanfOrder.pdf (hereinafter, Lebron, Preliminary
Injunction).
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evidentiary record. However, future courts that review similar drug testing programs may look to
these decisions for guidance, and they may be useful for lawmakers who consider crafting
legislation that requires individuals to pass drug tests in order to qualify for governmental
benefits.
The Challenged Michigan Law—Marchwinski v. Howard
Marchwinski concerned Michigan Compiled Laws Section 400.57l, which imposed a pilot drug
testing component to Michigan’s Family Independence Program (FIP). Under the FIP program,
individuals would have to submit a urine sample for testing as part of the TANF application
process. The applications of those who refused to submit to the test would be denied. Individuals
who tested positive for illicit drugs would have to participate in a substance abuse assessment
and, potentially, would have to comply with a substance abuse treatment plan. Those who failed
to comply with a treatment plan and could not show good cause would have their applications
denied. Additionally, individuals who were already receiving TANF benefits would be subject to
random drug tests. Active participants who tested positive for drug use or failed to adhere to the
random drug testing requirements would have their benefits reduced and possibly terminated.63
Several individuals who would be subject to the FIP drug testing program filed suit, seeking a
preliminary injunction that would prevent the implementation of the program because it would
violate their Fourth Amendment rights against unreasonable searches. The court granted the
preliminary injunction, which, among other factors, required a finding that the plaintiffs would
likely succeed on the merits of their Fourth Amendment claims.64
The Marchwinski court stated that “the Chandler Court made clear that suspicionless drug testing
is unconstitutional if there is no showing of a special need, and that the special need must be
grounded in public safety.”65 According to the court, the state’s “primary justification ... for
instituting mandatory drug testing is to move more families from welfare to work.”66 This worthy
legislative objective, however, is not “a special need grounded in public safety” that would justify
a suspicionless search, in the view of the court.67 The court also was unmoved by the state’s
argument that the drug testing served a special need of reducing child abuse and neglect. Upon an
examination of the programs’ express legislative purposes, the court found that neither TANF nor
FIP was designed specifically to address child abuse and neglect. Therefore, “... the State’s
financial assistance to parents for the care of their minor children through the FIP cannot be used
to regulate the parents in a manner that erodes their privacy rights in order to further goals that are
unrelated to the FIP.”68 Further, allowing the state to conduct suspicionless drug tests in this
context would provide a justification for conducting suspicionless drug tests of all parents of
children who receive governmental benefits of any kind, such as student loans and a public
education, which “would set a dangerous precedent.”69 Thus, the court concluded that the
63 Marchwinski, 113 F. Supp.2d at 1136-37.
64 Id. at 1137. Other factors that the court weighed were “the probability that granting the injunction will cause
substantial harm to others; and [] whether the public interest is advanced by the issuance of the injunction.” Id.
65 Id. at 1143.
66 Id. at 1140.
67 Id.
68 Id. at 1141-42.
69 Id. at 1142.
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“Plaintiffs have established a strong likelihood of succeeding on the merits of their Fourth
Amendment claim.”70 The case did not progress because the FIP administrators, as part of a
settlement with the American Civil Liberties Union (ACLU), which represented the plaintiff,
agreed to modify the program so that tests would be conducted only when “there is a reasonable
suspicion that [a] recipient is using drugs.”71
The Challenged Florida Law—Lebron v. Wilkens
The Lebron case involves Florida Statute Section 414.0652, enacted on May 31, 2011, which
requires all new TANF applicants to submit to a drug test and all current beneficiaries to be
subject to random drug testing as a condition to receiving benefits.72 The up-front cost of the drug
test must be born by the applicant/recipient; however, individuals whose results are negative for
illicit drugs will be reimbursed for the cost of the test using TANF funds. Although the statute
does not require it, individuals must disclose information about all prescription and over-the-
counter medications they use to avoid false-positive results for illicit drugs. Individuals who test
positive are barred from receiving benefits for one year unless they complete a substance abuse
treatment class and pass another drug test, at which point they may regain eligibility in six
months. Applicants must pay for both the treatment programs and the additional drug tests, and
those costs will not be reimbursed by the state.73 However, children of an applicant who failed a
drug test may receive TANF benefits through another adult, called a “protective payee,” if that
adult passes a drug test and is otherwise approved by Florida’s Department of Children and
Families (DCF). The results of positive drug tests are shared with the Florida Abuse Hotline,
which triggers a referral to the Florida Safe Families Network database. Information in the
Florida Safe Families Network database is available to law enforcement officials. Additionally,
information provided to the Florida Abuse Hotline may be disclosed to law enforcement officials
and to state attorneys who work on child abuse cases.74
An applicant, who met all eligibility requirements for TANF benefits except that he refused to
submit to a drug test, filed a motion with a federal district court seeking a preliminary injunction
of the enforcement of the drug testing requirements of the Florida law because it violates his
Fourth Amendment protections against unreasonable searches.75 The court granted the motion
until the matter can be fully litigated, finding that the plaintiff “has a substantial likelihood of
success on the merits” of his Fourth Amendment claims.76
The court, citing Skinner, Von Raab, Vernonia, and Earls, found that the drug test represents a
Fourth Amendment search due to “the intrusion into a highly personal and private bodily
function” necessary for the urinalysis, the fact that private information such as prescription drug
70 Id. at 1143.
71 See Settlement Reached In Lawsuit Over Mandatory Drug Testing of Welfare Recipients, Am. Civil Liberties Union
Press Release, December 18, 2003, available at http://www.aclumich.org/issues/search-and-seizure/2003-12/1044.
72 Lebron, Preliminary Injunction at 9-10.
73 Id. at 10.
74 Id. at 10-11.
75 Id. at 2.
76 Id. at 34.
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use could be divulged as part of the test, and that the test results could be made available to law
enforcement and other non-medical third parties.77
The court also held that the state had failed to show a valid “special need” for testing TANF
recipients justifying a deviation from the Fourth Amendment’s traditional requirement of
individualized suspicion. The state argued that four different interests served as special needs:
(1) ensuring that TANF funds are used for their dedicated purpose, and not diverted to drug
use; (2) protecting children by “ensuring that its funds are not used to visit an ‘evil’ upon the
children’s homes and families;” (3) ensuring that funds are not used in a manner that detracts
from the goal of getting beneficiaries back to employment; (4) ensuring that the government
does not fund the “public health risk” posed by the crime associated with the “drug
epidemic.”78
The only evidence submitted in the record that the court considered “competent ... on this issue”
was results from a pilot TANF drug testing program, called the Demonstration Project, that was
commissioned by the state in the late 1990s, and the preliminary results from the first month of
testing under the Section 414.0652 program.79 According to the court, not only did this evidence
not support the proffered special needs, but it also undermined them.80
The Demonstration Project was mandated by a Florida law enacted in 1998. It required Florida’s
DCF to conduct an empirical study to determine if “individuals who apply for temporary cash
assistance or services under the state’s welfare program are likely to abuse drugs,” and if “such
abuse affects employment and earnings and use of social service benefits.”81 Under the law, only
those TANF applicants for which the DCF had a “reasonable cause to believe” used illegal drugs
were to be drug tested.82 To implement the program, DCF utilized a written test to screen 6,462
TANF applicants for potential drug use. Based on this screening, 1,447 were subjected to a drug
test. Of the 1,447 individuals tested, 335 tested positive for illegal drugs. This represented 5.1%
of the 6,462 applicants who were screened.83
Regarding the first goal of study, as to whether or not the TANF applicants are likely to abuse
drugs, the study noted that the 5.1% positive rate was lower than the rate found in a number of
national welfare recipient drug studies. The court also noted that it was lower than the 8.13%
estimated rate of drug use by Floridians, as a whole.84 The study also did not find significant
correlations between drug users and non-users on employment-related factors. The DCF report
explained:
77 Id. at 14-18.
78 Id. at 23 (quoting the state’s response to the plaintiff’s motions, docket no. 19).
79 The state offered three additional studies as evidence that were disregarded by the court because they were outdated
and not based on the specific population relevant to the case. Id. at 24-25.
80 Id. at 34 (“Florida has already conducted its experiment. It commissioned a Demonstration Project that proceeded
unchallenged, and it was based on suspicion of drug use. Through this effort, Florida gathered evidence on the scope of
this problem and the efficacy of the proposed solution. The results debunked the assumptions of the State, and likely
many laypersons, regarding TANF applicants and drug use. The State nevertheless enacted Section 414.0652, without
any concrete evidence of a special need to do so—at least not that has been proffered on this record.”).
81 Lebron, Preliminary Injunction at 4.
82 Id. at 4 (citing Fla. Stat. §414.70(1) (1998) (repealed 2004)).
83 Id. at 4-5.
84 Id. at 5-6.
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First, [the findings] emphasize the difficulty of determining the extent of drug use among
welfare beneficiaries. Any test utilized for this purpose is likely to provide, at best, an
estimate of these numbers. Such estimates are suitable only for planning purposes and not for
sanctioning.
Secondly, the findings suggest that states may not need to test for drug use among welfare
beneficiaries. Evidence from the Florida demonstration project showed very little difference
between drug users and non-users on a variety of dimensions. Users were employed at about
the same rate as were non-users, earned approximately the same amount of money as those
who were drug free and did not require substantially different levels of governmental
assistance. If there are no behavioral differences between drug users and non-users and if
drug users do not require the expenditure of additional public funds, then policymakers are
free to concentrate on other elements of welfare policy and to avoid divisive, philosophy-
laden debates.85
Drug testing pursuant to Florida Statute Section 414.0652 began in July 2011.86 According to the
preliminary results of the first month of testing that were presented to the court, approximately
2% of TANF applicants tested positive for illicit drugs. An additional 7.6% of applicants refused
to submit to testing, but the court pointed out that
... it is difficult to draw any conclusions concerning the extent of drug use or the deterrent
effect of the statute from this fact because declining to take the drug test can be attributed to
a number of factors in addition to drug use, including an inability to pay for the testing, a
lack of laboratories near the residence of an applicant, inability to secure transportation to a
laboratory or, as in the case at bar, a refusal to accede to what an applicant considers to be an
unreasonable condition for receiving benefits.87
Thus, the state could only demonstrate that between 2% and 5.1% of TANF applicants used
illegal drugs.88
According to the court, both the findings of the Demonstration Project and the preliminary results
from the Section 414.0652 testing undercut each of the four special needs proffered by the state.89
The evidence provided to the court suggests that the rate of illicit drug use by TANF applicants is
lower than that of the general public and that there were no significant differences between drug-
using applicants and drug-free applicants pertaining to employment, income, and level of
governmental support.90 Additionally, the state was unable to show that the drug testing would
provide net cost savings for the TANF program due to the reimbursements for negative drug tests
and the protective payee provision.91
85 Id. at 7.
86 Id. at 8.
87 Id. at 12.
88 Id. at 12-13.
89 Id. at 34.
90 Id. at 31-32.
91 Id. at 33.
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In the absence of evidence in the record to justify any of the special needs asserted by the state,92
the “Plaintiff has shown a substantial likelihood of success on the merits of [his Fourth
Amendment claims].”93
Implications for Future Federal or State Legislation
Based on the case law analyzed above, state or federal laws that require drug tests as a condition
of receiving governmental benefits without regard to an individualized suspicion of illicit drug
use may be susceptible to constitutional challenge. Drug tests historically have been considered
searches for the purposes of the Fourth Amendment. The reasonableness of searches generally
requires individualized suspicion, unless the government can show a special need warranting a
deviation from the norm. However, governmental benefit programs like TANF, SNAP,
unemployment compensation, and housing assistance do not naturally evoke the special needs
that the Supreme Court has recognized in the past.
The implementation of governmental assistance programs and the receipt of their benefits do not
raise similar public safety concerns as those at issue in Skinner and Von Raab. In implementing
these programs, the government also does not clearly act as tutor or guardian for minors, as the
Court considered important in Earls and Vernonia. Finally, the evidence, at least thus far, in
Lebron has failed to show a pervasive drug problem in the subset of the population subjected to
suspicionless testing that strengthened the government’s interests in Earls and Vernonia. Thus, if
lawmakers wish to pursue the objective of reducing the likelihood of taxpayer funds going to
individuals who abuse drugs through drug testing, legislation that only requires individuals to
submit to a drug test based on an individualized suspicion of drug use is less likely to run afoul of
the Fourth Amendment.94 Although it was never challenged in the courts, the drug testing
component of Florida’s Demonstration Project raised fewer constitutional concerns, in part,
because individuals were only tested after administrators determined there was reason to believe
the individual abused drugs based on a minimally intrusive written screening.95
Additionally, the way drug testing programs are implemented can affect a court’s constitutional
analysis of the program. For instance, the fact that Florida’s Section 414.0652 program requires
positive drug test results to be shared with government officials outside of the TANF program,
such that the information ultimately could be made available to law enforcement officials,
92 In dicta, the court seemed to suggest that the third asserted special need, that is, transitioning TANF beneficiaries to
gainful employment, may not have qualified as a special need, but did not have to reach that conclusion because the
state failed to offer evidence to support the contention. Id. at 28-29 (“Even if this interest qualified as a special need,
see contra Marchwinski, 113 F. Supp. at 1140, the evidence does not support its application.”).
93 Lebron Preliminary Injunction at 34.
94 But see Earls, 536 U.S. at 837 (“In this context, the Fourth Amendment does not require a finding of individualized
suspicion, and we decline to impose such a requirement on schools attempting to prevent and detect drug use by
students. Moreover, we question whether testing based on individualized suspicion in fact would be less intrusive. Such
a regime would place an additional burden on public school teachers who are already tasked with the difficult job of
maintaining order and discipline. A program of individualized suspicion might unfairly target members of unpopular
groups. The fear of lawsuits resulting from such targeted searches may chill enforcement of the program, rendering it
ineffective in combating drug use.”) (internal citations omitted); Vernonia, 515 U.S. at 663-664. This dicta seems to be
limited to the context of drug testing minors in public schools.
95 It should be noted that, while the Demonstration Project may have raised few constitutional concerns, the empirical
study of the project suggested that it may not have served its legislative objectives.
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increases the level of intrusion into the privacy interests of TANF applicants more than if the
results were kept confidential to all but the administrators of the TANF program. As a result,
applicants who fail drug tests under the Florida program also could be subject to criminal drug
investigations or investigations of child abuse, in addition to losing their TANF benefits. In
contrast, the testing programs that complied with the Fourth Amendment at issue in Von Raab,
Earls, and Vernonia limited the number of people who had access to the test results, prohibited
the results from being passed to law enforcement officials, and restricted the negative
consequences of failing a drug test to the specific activities the testing was designed to address
(e.g., school extracurricular activities). Although they may not have been determinative, these
factors reduced the privacy intrusion of the plaintiffs and seem to have played a role in the
Court’s balancing test evaluation. Therefore, governmental drug testing procedures that restrict
the sharing of test results and that limit the negative consequences of failed tests to the assistance
program in question will be on firmer constitutional ground.
Author Contact Information
David H. Carpenter
Legislative Attorney
dcarpenter@crs.loc.gov, 7-9118
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