DON'T WELFARE RECIPIENTS HAVE RIGHTS?

The 1996 federal "welfare reform" law allowed states to test welfare
recipients for drug use. So far, only Michigan has taken advantage of that
provision.

In October, welfare applicants began to be required to take a urine test in
three parts of the state, including Detroit. There need not be even a
suspicion that a particular applicant uses drugs.

Anyone who tests positive must enroll in a "substance abuse treatment plan."
Refusal to submit to the testing or to enter treatment results in families
with children under 18 losing monthly cash payments. This income support is
called a "family independence benefit" by the state.

Michigan welfare officials claim this program will help prepare applicants
for work and keep families together.

Adults who need income assistance but have no children do not have to be
tested because they are not eligible for welfare in Michigan - as decided by
Republican Gov. John Engler.

On Sep. 30, the American Civil Liberties Union of Michigan filed a lawsuit
on behalf of Michigan welfare applicants, claiming that "mandatory drug
testing of a broad swath of the adult population has never in our nation's
history been enacted by a state government, much less approved by a court."

Actually, Louisiana did pass such a law in 1997 but decided instead to
require applicants to answer a questionnaire about drug use.

Courts, including the Supreme Court, have approved mandatory testing of
narrow sectors of the population -- those such as railroad engineers who
hold dangerous jobs or student athletes. But not yet all welfare applicants.

Among the named plaintiffs in the ACLU suit are Tanya Marchwinski and Terri
Konieczny, both single mothers eligible for welfare assistance. According to
the ACLU, Marchwinski has a kidney disorder and a history of degenerative
disc disease that requires medication.

She does have a job, paying $5.25 an hour, but without welfare assistance,
she says, she would not be able to pay for necessary food and shelter for
her children.

On Nov. 10, with the Christmas season approaching, Federal District Judge
Victoria Roberts provisionally ended Michigan's drug testing of welfare
applicants by granting a temporary restraining order on the grounds that
requiring such tests -- without individualized, reasonable suspicion -- is
"likely unconstitutional. While it is clearly in the public interest," she
says, "to have all members of society drug-free and working . . . these
goals cannot be pursued at the expense of the Constitution."

Judge Roberts noted that, in any case, the state had not disclosed any
"special need" for this dragnet testing -- especially after the state
revealed the results of the five weeks of testing before it was stopped.

Of 268 people tested, only 21 -- 8 percent -- tested positive for drugs. All
but three had used marijuana. The figure of 8 percent, the ACLU says, is
consistent with drug use in the general population.

Judge Roberts has scheduled additional hearings on whether she should issue
a permanent injunction and if so, whether to grant the ACLU's request that
this become a class-action suit, covering all welfare applicants in the
state.

In its court papers, the Michigan ACLU emphasized that "each of the
plaintiffs are stigmatized and discriminated against" because Michigan "does
not require random drug testing as a condition for receiving other state
financial benefits, such as those provided to students, corporations and
taxpayers."

Michigan's drug-testing program, says the ACLU, "brands recipients as
innately inferior to other recipients of state financial assistance."

In the 1970 Goldberg v. Kelly case, Justice William Brennan held for the
first time that it was unconstitutional to cut off welfare payments without
first giving the recipients notice and a hearing. The core of his decision
relates to the Michigan case:

"From its founding," Brennan wrote, "the Nation's basic commitment has been
to foster the dignity and well-being of all persons within its borders. We
have come to recognize that forces not within the control of the poor
contribute to their poverty."

Quoting the prologue to the Constitution, Brennan continued: "Public
assistance, then, is not mere charity, but a means to 'promote the General
Welfare, and secure the Blessings of Liberty to ourselves and our
Posterity.' "

But, as Kary Moss of the ACLU charges, Michigan is nonetheless "saying that
if you want money for food and shelter, you have to give up the Fourth
Amendment rights that others have."