JUDGE MAKES RIGHT CALL IN HALTING FLORIDA WELFARE DRUG TESTING

When it came to drug testing welfare applicants, the state aimed for
the cup first and asked questions later.

Anybody with a rudimentary understanding of the U.S. Constitution knew
that Florida's blanket testing program was doomed. Michigan tried the
same thing more than a decade ago, and it was ultimately tossed by
federal courts.

Sure enough, U.S. District Judge Mary Scriven temporarily halted
Florida's drug-testing program this week, ruling that "there was a
substantial likelihood" it wouldn't pass constitutional muster.

Legal precedent shows that government drug testing must be based on
reasonable suspicion, probable cause or public safety (such as testing
police or transit workers).

Not that these issues stopped Gov. Rick Scott (a lawyer) from pushing
the program and the lawmakers in the Legislature from approving it
earlier this year.

The program, which began July 1, was particularly mean-spirited in
requiring welfare applicants to pay for their own drug tests up front.
Applicants get reimbursed after passing.

"When you don't have any money, $30 is a lot," said one applicant, a
mother of two going through a divorce who didn't want her name used.
An aide to State Rep. Irv Slosberg, D-Boca Raton, wrote a personal
check so she could take the test.

Before Scriven stopped the program, around 7,000 TANF applicants
passed drug tests and only 33 flunked. That's a miniscule failure
rate, less than one-half of 1 percent.

More intriguing were the nearly 1,600 applicants who didn't show up
for tests in the required 45-day window from July through September.
That's 19 percent, a big chunk. The state says these applicants
"refused" drug tests.

I wonder how many simply didn't have the means to pay for the test, or
the wherewithal to get to the testing lab. I'm not naive. I know some
who skipped the test might have been drug users. But it's unfair to
point to these 1,600 no-shows and imply they're all guilty of something.

That was the problem with this program. Unlike so many others who get
government aid, like college students and foster parents, the onus was
on welfare applicants alone to prove they were clean.

If the goal was to stop government funds from being used on drugs,
this approach seemed inconsistent and unfair. The real goal seemed to
be scoring cheap political points at the expense of a weak and easily
scapegoated target.

In her ruling, Scriven took the state to task for ignoring past court
decisions and the results of a past Florida drug-testing program,
which showed welfare drug use below the general population.

Unlike private companies, who are free to test employees or applicants
as they see fit, the law is stricter when it comes to government
testing because of the Fourth Amendment, which bans unreasonable searches.

Drug testing welfare applicants has been one of Gov. Scott's more
popular crusades, triggering widespread support.

But Judge Scriven, a George W. Bush appointee, has shown that what's
popular isn't always right.