Constitutional Analysis of
Suspicionless Drug Testing Requirements
for the Receipt of Governmental Benefits
David H. Carpenter
Legislative Attorney
January 29, 2014
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 (formerly Aid to
Families with Dependent Children (AFDC)), the Supplemental Nutrition Assistance Program
(SNAP, formerly Food Stamps), the Section 8 Housing Choice Voucher program, and their
precursors, have expressed concern 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. Some policymakers have shown a renewed interest in
conditioning the receipt of governmental benefits on passing drug tests. For example, in February
2012, the President signed into law an amendment to the Social Security Act that authorizes states
to condition the receipt of certain unemployment compensation benefits on passing drug tests.
Additionally, lawmakers in a majority of states reportedly proposed legislation in 2011, 2012, and
2013 that would require drug testing beneficiaries of governmental assistance under certain
circumstances, while at least nine state governments over that time have enacted such legislation.
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 may be subject to
constitutional challenge. To date, 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. 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.” For
searches to be reasonable, they generally must be based on 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 limit the negative
consequences of failed tests to the assistance program in question would 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 (SNAP): 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 Julie M. Whittaker and Katelin P. Isaacs.
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Contents
Background ...................................................................................................................................... 1
Overview of the Fourth Amendment and the “Special Needs” Exception ...................................... 2
Supreme Court Precedent ................................................................................................................ 3
Skinner v. Railway Labor Executives Association ..................................................................... 4
National Treasury Employees Union v. Von Raab ..................................................................... 4
Vernonia School District v. Acton .............................................................................................. 5
Board of Education of Independent School District No. 92 of Pottawatomie County v.
Earls ....................................................................................................................................... 6
Chandler v. Miller...................................................................................................................... 7
Synthesis of Supreme Court Precedent ..................................................................................... 8
Lower Court Opinions on the Michigan and Florida Laws ............................................................. 8
The Challenged Michigan Law—Marchwinski ......................................................................... 9
The Challenged Florida Law—Lebron .................................................................................... 10
Facts .................................................................................................................................. 10
Procedural History............................................................................................................. 11
District Court Summary Judgment Order ......................................................................... 11
Implications for Future Federal or State Legislation ..................................................................... 12
Contacts
Author Contact Information........................................................................................................... 14
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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 (formerly Aid to
Families with Dependent Children (AFDC)),1 the Supplemental Nutrition Assistance Program
(SNAP, formerly Food Stamps),2 the Section 8 Housing Choice Voucher program,3 and their
precursors have expressed concern 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 explicitly authorizes 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 have
shown a renewed interest in conditioning the receipt of governmental benefits on passing drug
tests. For example, in February 2012, the President signed into law an amendment to the Social
Security Act that authorizes states to condition the receipt of certain unemployment compensation
benefits on passing drug tests.9 Additionally, lawmakers in a majority of states reportedly
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 (SNAP):
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 AFDC welfare program
and its precursors that attempted to distinguish between the “worthy” poor and those unworthy of assistance) (holding
that 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 P.L. 112-96 §2105, the Middle Class Tax Relief and Job Creation Act of 2011. The provision states:
(1) Nothing in this chapter or any other provision of Federal law shall be considered to prevent a
State from enacting legislation to provide for-
(A) testing an applicant for unemployment compensation for the unlawful use of controlled
substances as a condition for receiving such compensation, if such applicant-
(i) was terminated from employment with the applicant’s most recent employer (as defined under
the State law) because of the unlawful use of controlled substances; or
(ii) is an individual for whom suitable work (as defined under the State law) is only available in an
occupation that regularly conducts drug testing (as determined under regulations issued by the
Secretary of Labor); or
(continued...)
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proposed legislation in 2011, 2012, and 2013 that would require drug testing beneficiaries of
governmental assistance under certain circumstances, while at least nine state governments over
that time have enacted such legislation.10
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 may be subject 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, 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.11 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.
Overview of the Fourth Amendment and the
“Special Needs” Exception
The Fourth Amendment protects the “right of the people” to be free from “unreasonable searches
and seizures” by the government.12 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.13 Governmental conduct generally will be found to constitute a “search”
for Fourth Amendment purposes where it infringes “an expectation of privacy that society is
(...continued)
(B) denying such compensation to such applicant on the basis of the result of the testing conducted
by the State under legislation described in subparagraph (A).
Much like the TANF provision discussed in the supra footnote, this amendment to the Social Security Act does not
raise constitutional concerns because it does not directly impose drug testing; however, state drug testing programs that
are instituted under this authority may be susceptible to Fourth Amendment-based challenges.
10 National Conference of State Legislatures, Drug Testing and Public Assistance, available at http://www.ncsl.org/
issues-research/human-services/drug-testing-and-public-assistance.aspx; Gov. Perry Signs Drug Screening Legislation,
Office of Gov. Rick Perry, Press Release, June 14, 2013, available at http://governor.state.tx.us/news/press-release/
18657/.
11 See the “Lower Court Opinions on the Michigan and Florida Laws” section below.
12 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.”).
13 Mapp v. Ohio, 367 U.S. 643, 655 (1961).
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prepared to consider reasonable....”14 The Supreme Court, on a number of occasions, has held that
government-administered drug tests are searches under the Fourth Amendment.15 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.16
Whether a search is reasonable depends on the nature of the search and its underlying
governmental purpose. Reasonableness under the Fourth Amendment generally requires
individualized suspicion, which frequently takes the form of a warrant that is based on probable
cause.17 However, the Supreme Court has recognized an exception to these general requirements
“when special needs, beyond the normal need for law enforcement, make the warrant and
probable-cause requirement impracticable,”18 and the government’s needs outweigh any
“diminished expectation” of privacy invaded by a search.19 In instances where the government
argues that there are special needs to support suspicionless searches, 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.20
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,21 National Treasury Employees Union v. Von Raab,22 Vernonia
14 United States v. Jacobsen, 466 U.S. 109, 113 (1984). The Supreme Court has never held that Fourth Amendment
protections extend to purely private action. See, e.g., id. at 113-14 (“This Court has also consistently construed this
protection as proscribing only governmental action; it is wholly inapplicable to a search or seizure, even an
unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or
knowledge of any governmental official.”) (internal citations and quotations omitted) and Chandler v. Miller, 520 U.S.
305, 323 (1997) (“And we do not speak to drug testing in the private sector, a domain unguarded by Fourth
Amendment constraints.”).
15 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).
16 The constitutionality of such a law also may turn on whether individuals have provided a valid consent to the testing
and whether mandatory testing is an unconstitutional condition for the receipt of government benefits. For a discussion
of these issues, see infra n. 88.
17 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 [Skinner v.] Railway Labor Executives
reaffirms the 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.”).
18 Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotations omitted).
19 Chandler, 520 U.S. at 313-14.
20 Id. at 314 (“When such ‘special needs’—concerns other than crime detection—are alleged in justification of a Fourth
Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and
public interests advanced by the parties.”).
21 489 U.S. 602 (1989).
22 489 U.S. 656 (1989).
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School District v. Acton,23 Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls,24 and Chandler v. Miller,25 is analyzed in turn.
Skinner v. Railway Labor Executives Association
Skinner centered on Federal Railroad Administration (FRA) regulations that required breath,
blood, and urine tests of railroad workers involved in train accidents.26 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.27 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.28 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.29
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....”30 In these circumstances, the majority held, it was
reasonable to conduct the tests, even in the absence of a warrant or reasonable suspicion that any
employee may be impaired.31
National Treasury Employees Union v. Von Raab
In the Von Raab decision, handed down on the same day as Skinner, the Court upheld
suspicionless drug testing of U.S. Customs Service personnel who sought transfer or promotion to
certain “sensitive” positions—namely positions that require carrying guns or are associated with
drug interdiction.32 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.33 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.34
23 515 U.S. 646 (1995).
24 536 U.S. 822 (2002).
25 520 U.S. 305 (1997).
26 Skinner, 489 U.S. at 606.
27 Id. at 617.
28 Id. at 621, 631.
29 Id. at 624.
30 Id. at 627.
31 Id. at 633.
32 Von Raab, 489 U.S. at 679.
33 Id. at 672.
34 Id. at 679.
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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.”35
Vernonia School District v. Acton
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 start of the season 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.36
A 6-to-3 majority of the Court upheld the program against Fourth Amendment challenge. The
Court noted a prior holding that “‘special needs’ [] exist in the public school context” where
compliance with the traditional probable cause requirement “would undercut the substantial need
of teachers and administrators for freedom to maintain order in the schools.”37 Central to the
Vernonia 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.”38 This
relationship, in effect, “permit[s] a degree of supervision and control that could not be exercised
over free adults.”39 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
privacy in sports’ locker rooms.40 Because “school sports are not for the bashful,” student athletes
were found to have a lower expectation of privacy than other students.41
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.42 Second, school officials had an interest in deterring student drug use as part of their
“special responsibility of care and direction” toward students.43 That interest was magnified in
Vernonia by judicial findings that, prior to implementation of the program, “a large segment of
35 Id. at 673-75.
36 Vernonia, 515 U.S. at 649-50.
37 Id. at 653 (quoting New Jersey v. T.L.O., 469 U.S. 325, 341 (1989)).
38 Id. at 654.
39 Id. at 654-56.
40 Id. at 657.
41 Id.
42 Id. at 658.
43 Id. at 662.
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the student body, particularly those involved in interscholastic athletics, was in a state of rebellion
... fueled by alcohol and drug abuse....”44
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.”45
Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls
Earls concerned a Tecumseh Public School District policy that required suspicionless drug testing
of students wishing to participate “in any extracurricular activity.”46 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 band, show choir, and academic team.47
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. The majority, citing Vernonia, stated that “this Court has previously held that
‘special needs’ inhere in the public school context.”48 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.”49 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.50 The fact that
student athletes in the Vernonia case were regularly subjected to physical exams and communal
undress was not deemed “essential” to the outcome there.51 Instead, that decision “depended
primarily upon the school’s custodial responsibility and authority,” which was equally applicable
to athletic and nonathletic activities.52
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.53 In particular, the opinion notes test results were kept in
44 Id. at 662-63.
45 Id. at 664-65.
46 Earls, 536 U.S. at 826.
47 Id. at 826-27. The plaintiff did not contest the policy as applied to student athletics.
48 Id. at 829-30 (citing Vernonia, 515 U.S. at 653 and T.L.O., 469 U.S. at 336-37).
49 Id. at 830-31.
50 Id. at 831-32.
51 Id. at 831.
52 Id.
53 Id. at 832-34.
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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.54 “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.”55
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.56 “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.”57
Chandler v. Miller
Conversely, the Court in Chandler struck down a 1990 Georgia statute requiring candidates for
governor, lieutenant governor, attorney general, the state judiciary, the state legislature, and
certain other elective offices to file a certification that they have tested negatively for illegal drug
use.58 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.”59 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.”60
In addition, the law did not serve as a “credible means” to detect or deter drug abuse by public
officials.61 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.62 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.63 Any drug abuse by public officials is far more likely to be detected
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 explained:
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.64
54 Id. at 833.
55 Id. at 832-34.
56 Id. at 835-37.
57 Id. at 837.
58 Chandler, 520 U.S. at 322.
59 Id. at 318-19.
60 Id. at 319.
61 Id.
62 Id. at 319-20.
63 Id. at 321.
64 Id. at 323 (internal citations omitted).
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The Court went on to stress that searches conducted without individualized suspicion generally
must be linked to public safety in order to be reasonable. “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.”65
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, are not conducted for criminal law enforcement purposes, 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
otherwise have the potential to negatively impact multiple or significant aspects of an individual’s
life, may be less likely to be considered reasonable.
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,66 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,67
involved a Michigan program that began in the late 1990s. This decision was delivered at the
preliminary stages of litigation and was not based on a complete evidentiary record. The other
65 Id.
66 Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000). A unanimous three-judge panel decision of the
Sixth Circuit Court of Appeals (Marchwinski v. Howard, 309 F.3d 330 (2002)) was vacated when the appellate court
granted a motion to rehear the case en banc. Marchwinski v. Howard, 319 F.3d 258 (6th Cir. 2003). The vacated three-
judge panel decision would have reversed the district court’s grant of a preliminary injunction because the lower court
“applied an erroneous legal standard” by “holding that only a public safety concern can qualify as a ‘special need’” and
because “the evidence in the case at hand establishes that Michigan’s special need does encompass public safety
concerns, as well as other needs beyond the normal need for law enforcement.” Marchwinski v. Howard, 309 F.3d 330
(2002) (vacated) (internal quotations omitted).
67 Marchwinski v. Howard, 60 Fed. App’x 601 (6th Cir. 2003) (affirming the district court judgment 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).
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ruling, Lebron v. Secretary, Florida Department of Children and Families,68 is part of ongoing
litigation regarding a program instituted pursuant to Florida law. Future courts that review similar
drug testing programs may look to these decisions for guidance, and they may be useful for
lawmakers reviewing proposed legislation that requires individuals to pass drug tests in order to
qualify for or maintain governmental benefits.
The Challenged Michigan Law—Marchwinski
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.69
Several individuals who would be subject to the FIP drug testing program filed suit, seeking a
preliminary injunction to prevent the implementation of the program because it would violate
their Fourth Amendment rights. The court granted the preliminary injunction, which, among other
factors, required a finding that the plaintiffs would likely succeed on the merits of their
constitutional claims.70
The district court in Marchwinski 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.”71 According to the court, the state’s “primary justification ...
for instituting mandatory drug testing is to move more families from welfare to work.”72 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.73 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
68 Case No. 6:11-cv-1473-MSS-DAB, Order Granting Plaintiff’s Motion for Summary Judgment (M.D. Fla. 2013),
available at https://s3.amazonaws.com/s3.documentcloud.org/documents/1001068/court-bans-tanf-drug-testing.pdf
(hereinafter, Lebron, Summary Judgment). See also, Case No. 11-15258, Appeal from the U.S. Dist. Ct. M.D. Fla. (11th
Cir. 2013), available at http://www.ca11.uscourts.gov/opinions/ops/201115258.pdf (hereinafter, Lebron, Affirmation of
Preliminary Injunction) (affirming Lebron v. Wilkins, Docket 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)).
69 Marchwinski, 113 F. Supp.2d at 1136-37.
70 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.
71 Id. at 1143.
72 Id. at 1140.
73 Id.
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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.”74 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.”75 Thus, the court concluded that the
“Plaintiffs have established a strong likelihood of succeeding on the merits of their Fourth
Amendment claim.”76
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.”77
The Challenged Florida Law—Lebron
Facts
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.78 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.79 The children of any 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 otherwise is approved by Florida’s Department of Children and Families
(DCF).80
74 Id. at 1141-42.
75 Id. at 1142. The court also disagreed with the state’s argument “that the voluntary nature of applying for welfare
benefits diminishes the applicants [sic] expectation of privacy,” arguing that Chandler “involved an even more
voluntary activity...run[ning] for public office,” and in that case, the Supreme Court made clear that the drug tests were
unconstitutional searches. Id. at 1143.
76 Id. at 1143.
77 See Settlement Reached In Lawsuit Over Mandatory Drug Testing of Welfare Recipients, Am. Civil Liberties Union
Press Release, Dec. 18, 2003, available at http://www.aclumich.org/issues/search-and-seizure/2003-12/1044.
78 Lebron, Summary Judgment at 5.
79 Id. at 5-6.
80 Id. at 6-7. Originally, the results of positive drug tests were 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 both law enforcement officials and state attorneys who work on child abuse cases. However, the state,
through administrative rulemaking that went into effect in March 2012, barred the sharing of information with law
enforcement and referrals to the Florida Abuse Hotline in response to the federal district court’s preliminary injunction
order. Id. 6
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Procedural History
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.81 The court granted the motion
until the matter could be fully litigated, finding that the plaintiff “has a substantial likelihood of
success on the merits” of his Fourth Amendment claims.82
The state appealed the district court’s preliminary injunction order to the U.S. Court of Appeals
for the Eleventh Circuit (Eleventh Circuit). Citing the same Supreme Court precedents and
following similar legal reasoning, the Eleventh Circuit affirmed the district court’s order
imposing a preliminary injunction against implementation of the drug testing program.83
While the parties awaited the Eleventh Circuit’s preliminary injunction ruling, they each filed a
motion for summary judgment with the district court. Although they were given the opportunity
by the court, neither party submitted supplemental memoranda to take into account the Eleventh
Circuit’s affirmation of the preliminary injunction order. 84
District Court Summary Judgment Order
The district court granted the plaintiff’s motion for summary judgment, which required a finding
that “there is no general issue of material fact” between the parties and that the plaintiff “is
entitled to judgment as a matter of law” in spite of reviewing the evidence “in the light most
favorable to [the state].”85 In granting the motion, the court held that Florida’s TANF drug testing
statute is unconstitutional and may not be enforced.86
The district court, citing Skinner, Von Raab, Chandler, Vernonia, Earls, and the Eleventh
Circuit’s affirmation of the preliminary injunction order, found that the drug tests in question
represent Fourth Amendment searches87 and 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.88
81 Lebron, Preliminary Injunction at 2.
82 Id. at 34.
83 Id. at 30-31. The state petitioned the Eleventh Circuit for a rehearing en banc but that petition was denied. Lebron,
Summary Judgment at 3.
84 Lebron, Summary Judgment at 3.
85 Id. at 1 and 8.
86 Id. at 9.
87 Id. at 10-11.
88 Id. at 10-13. In addition to arguing that there were “special needs” to justify the drug tests, the state also contended
that the drug tests were not searches for the purposes of the Fourth Amendment because an individual would only be
tested with the consent of the beneficiary—“if there is no consent to the testing, there is no drug test and, thus, no
search.” Id. at 28. The district court disagreed, stating that “the Supreme Court has always applied the same special
needs analysis even when it was shown that the affected population has the option to consent to the drug tests,” while
also holding that rather than “consent,” what was at play in this context was a “submission to authority.” Id. at 28-29.
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The district court, quoting the Eleventh Circuit’s order, determined that Supreme Court precedent
acknowledges only two “special needs” in which government-imposed, suspicionless drug testing
are permissible: where there is “the specific risk to public safety by employees engaged in
inherently dangerous jobs and the protection of children entrusted to the public school system’s
care and tutelage.”89 Instead of contending that its TANF drug testing program was designed to
address either of these “special needs,” the state argued that the testing was necessary because
drug use by beneficiaries would undermine the purpose of TANF.90 While the state may have an
interest in encouraging family stability and helping TANF beneficiaries gain employment, those
goals do not amount to “special needs” that the Supreme Court has recognized as justifying the
circumvention of traditional Fourth Amendment protections.91 Consequently, the court held that
the Florida statute violates the Fourth Amendment.
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 subject to constitutional challenge. Drug tests historically have been considered
searches for the purposes of the Fourth Amendment. For searches to be reasonable, they generally
must be based on 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 is less likely to run afoul of the
Fourth Amendment92 if it only requires individuals to submit to a drug test based on an
89 Id. at 12.
90 The court further concluded “[b]ecause the State has failed to meet the threshold requirement of establishing a
substantial special need, the Court need not weigh any competing individual and governmental interests in this case.”
Id. at 28.
91 Id. at 16-17. While “the Court’s analysis as to the constitutionality of the statute should end there,” the state, without
citing a single legal precedent in support, argued that “evidence of drug use within the Florida TANF population would,
in and of itself, suffice to establish a special need for suspicionless, mandatory drug testing of that entire population.”
Id. at 17-18. Although the district court doubted the constitutionality of this argument, even assuming that it did pass
constitutional muster, the state failed to produce evidence to support its argument. Id. at 17-28. The court explained:
In sum, there simply is no competent evidence offered on this record of the sort of pervasive drug
problem the State envisioned in the promulgation of this statute. Hence, even if the State intended
to hinge its demanded exception to the Fourth Amendment on this thin reed, a proposition the
Eleventh Circuit already strongly cautioned against, it has failed to make the evidentiary showing
that would be required.
Id. at 28 (internal citations omitted).
92 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
(continued...)
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individualized suspicion of drug use, for example by providing that only those TANF applicants
for which administrators have a “reasonable cause to believe” use illegal drugs be drug tested.93
Additionally, the way drug testing programs are implemented can affect a court’s constitutional
analysis of the program. For instance, until a subsequent administrative rulemaking promulgated
in response to issues raised in the district court’s preliminary injunction order,94 Florida’s Section
414.0652 program required 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. This information sharing increased 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, prior to the administrative rulemaking,
applicants who failed drug tests under the Florida program also could have been 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
(...continued)
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. These dicta seem to be
limited to the context of drug testing minors in public schools.
93 For example, Florida implemented a “Demonstration Project” in accordance with a state law enacted in 1998. The
law 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.” Lebron, Preliminary Injunction at 4 (citing Fla. Stat.
§414.70(1) (1998) (repealed 2004)). 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. Id.
It should be noted that, even if the statutory language explicitly limits drug tests to instances in which there is
“reasonable suspicion” of illicit drug use, the law could still be implemented in an unconstitutional way. Also, while
the Demonstration Project may have raised fewer constitutional concerns, the empirical study of the project suggested
that it may not have served its legislative objectives. The DCF report explained:
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.
Id. at 7.
94 See supra n. 80.
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the sharing of test results and that limit the negative consequences of failed tests to the assistance
program in question likely would be on firmer constitutional ground.
Author Contact Information
David H. Carpenter
Legislative Attorney
dcarpenter@crs.loc.gov, 7-9118
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