ACLU to Florida Governor Rick Scott: “Piss on This!”

In an earlier post, I noted that Florida’s recently elected Governor Rick Scott (approval ratings as of last week’s close of the legislative session: 29%) had Points editors Travis and Spillane in his sights–along with a few thousand other state employees, I admit.  Drug testing for all recipients of state and federal welfare was signed into law on 31 May, and random testing of all state employees looms on our horizon.  Late last week, however, the Points staff was relieved to hear the hoof beats of the cavalry: the American Civil Liberties Union brought suit in U.S. District Court to block Scott’s Executive Order for mandatory piss testing of garden variety toll takers, game wardens, and liberal arts professors.  Guest Blogger Ron Bilbao, Senior Legislative Associate and Outreach Coordinator for the ACLU of Florida, pays a visit to Points to give us his organization’s stance on the issue. 

The Bill of Rights (Image Courtesy of Fox News)

Governor Scott’s March Executive Order requiring all state employees under his direction to submit to random drug testing seems popular. But criticism of it has been focused and the underlying policy is legally suspect.

The ACLU of Florida has previously succeeded in knocking down misguided and illegal attempts to impose government drug searches of the type proposed by Scott’s order.  In Barron v. City of Hollywood (2000), a federal district court struck down a suspicion-less drug screening program the City of Hollywood sought to mandate for all applicants for employment. The Court’s decision was based on two 1989 decisions by the United States Supreme Court in which the Court set standards for the drug testing of government workers.  Just four years later in Wenzell v. Bankhead, the ACLU represented the plaintiffs  against the Florida Department of Juvenile Justice, and the court struck down an employee drug testing scheme for state workers simiar to the one just proposed by Scott and newly challenged by the ACLU.

The ACLU’s decision to challenge the new testing scheme is rooted in the protection against unreasonable government search and seizure – a safeguard so fundamental to us that it’s been enshrined on our Bill of Rights since the Amendments were passed in 1791. At its core a drug test is a seizure of bodily fluids.

New Requirement for Tenure in the Florida State System

Whether it’s urine, blood, or hair, someone else is taking it from you. And it’s being searched. Looking for trace chemicals in your blood is searching.  And in the case of a government mandated drug test, the government is doing the searching and seizing.

Courts have held for a long time that the government can require a drug test in some circumstances. Tests for employees in safety sensitive jobs like policing, or for those who use dangerous machinery, have been allowed for decades. Reasonable suspicion of drug abuse is also considered a reason to require a test.  But when someone is not in a safety sensitive job or is not suspected of abusing drugs, a required government search has long been held to be unreasonable.  Naturally, “unreasonable” coupled with search and seizure is exactly what the Fourth Amendment blocks government from doing.

In addition to the legal and constitutional issues embedded in any suspicion-less testing plan, it’s often also bad policy.  In this case, it’s an unnecessary, wasteful government enterprise.  There is absolutely no evidence that state employees abuse drugs any more than any other group.  Moreover, there has been no report of widespread or even isolated drug use by state workers.  Until the drug testing solution was presented, few had ever even raised state employee drug use as a problem.

Ron Bilbao is a native of Miami and a recent graduate of the University of North Carolina at Chapel Hill.  Follow him on Twitter: @ronbilbao.