Wednesday, November 26, 2014

Indiana proposal could pass legal challenges that killed welfare drug tests in Mich., Fla.

Posted on Feb. 15, 2013 at 12:00 a.m. | Updated on Feb. 15, 2013 at 2:52 p.m.

GOSHEN — As Indiana looks at introducing drug testing for some welfare recipients, opponents point to a Florida law struck down by a judge and pending on appeal as a reason it shouldn’t happen here.

There’s a big difference, though, between the Indiana proposal and the Florida law — which was similar to a 1996 Michigan law that was struck down on the same grounds as the Florida law.

In Michigan, the law attempted to introduce random drug screens for people in the Temporary Assistance for Needy Families, or TANF, program. In Florida, the law required drug tests for all TANF recipients. The federal law creating the program allows states to test welfare recipients for use of controlled substances and to penalize them. However, that right doesn’t give the states free rein.

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In both cases, judges ruled that the state laws violated the constitutional right against search and seizure by imposing “suspicionless drug testing” on people on welfare.

In Indiana, however, the proposal is much narrower. It would, according to the Associated Press, require all TANF applicants to complete a written screening for possible drug-abuse problems. Those identified as possible abusers would have to take a drug test, and people failing would have to take part in a treatment program and pass later tests to keep getting payments.

That’s far different than what happened in Florida, where U.S. District Judge Mary Scriven wrote that Florida was prevented “from requiring Plaintiff to submit to a suspicionless drug test,” though she noted that “this order does not address whether Florida is authorized to conduct drug testing of TANF applicants based on some quantum of individualized suspicion, an issue not before the court.”

That implies that if Indiana’s proposal becomes law, it would at least pass Scriven’s analysis on that issue.

In the Michigan case, U.S. District Judge Victoria Roberts wrote in 2000 that “Since TANF generally, and Michigan’s FIP (family independence program) specifically, are not designed to ameliorate ... child abuse or neglect, the State cannot legitimately advance such abuse or neglect as supporting a special need sufficient to single out FIP recipients for suspicionless drug testing.”

The judge later concluded “the right to be free from unreasonable searches is a fundamental right,” and ruled Michigan’s effort was an unconstitutional infringement of TANF recipients’ rights.

Roberts noted that the issue was with suspicionless testing and that federal law “authorizes but does not mandate States to test TANF recipients for use of controlled substances and to sanction those recipients who test positive.”