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Is Drug Testing For Welfare Fair?


I'm Michel Martin and this is TELL ME MORE from NPR News. We're starting again today as we did yesterday, with an important court decision. Yesterday, we focused on the Supreme Court's decision to let stand Michigan's ban on the use of race in public university admissions. That was passed by the voters a while back. Today, we want to talk about an issue the justices actually decided to bypass.

Florida Governor Rick Scott hoped the court would hear an appeal stemming from an executive order to drug test all state workers, about 85,000 people. A lower court said the order was unconstitutional, calling it a violation of the Fourth Amendment, which protects citizens from unreasonable search and seizure.

We wanted to know what the Supreme Court's decision not to hear the case means for this drug testing issue in Florida and elsewhere around the country, so we called Curt Anderson, a Florida legal affairs reporter for the Associated Press, and Pauline Kim, professor of law at Washington University School of Law. And she specializes in employment and privacy law. Welcome to you both. Thank you for joining us.

PAULINE KIM: Thank you.

CURT ANDERSON: Thank you for having me.

MARTIN: So, Curt Anderson, I'm going to start with you. What did the Supreme Court say about Gov. Scott's issue, and what does this mean for the issue in Florida?

ANDERSON: Well, the Supreme Court just decided not to hear the case without comment. They denied certiorari, you know, which means they're not going to grant any hearing any further. So what it means is that the 11th U.S. Circuit Court of Appeals decision from last year stands. And what that decision did was it said that Gov. Scott could not just broadly issue an order to randomly drug test all these employees - as you mentioned, about 85,000 - without some suspicion of drug use or some kind of special category of jobs, such as a law enforcement officer or somebody who operates heavy machinery in a safety type of situation.

MARTIN: So does that mean that the state can drug test some people but that they have to demonstrate that this has some direct relationship to the specific work that they do?

ANDERSON: Yes, correct. The 11th Circuit pointed out that the U.S. Supreme Court has said that the only way you can do this with state workers is when you have a kind of reasonable assumption that they are in a safety and security type of job or could be, for example, working with children or something like that as well.

MARTIN: Let me talk to Professor Kim on this. Professor Kim, Gov. Scott is not alone in his desire to drug test employees. In fact, a number of state and federal government jobs do require it and, as Curt Anderson was telling us, mostly for specific jobs that involve safety, like operating heavy machinery, or certain positions, say, in law enforcement. Are there some states that have very broad-based testing regiments? And what allows those to go forward?

KIM: Well, I don't think any state that I know of has tried to implement testing on such a widespread basis as we saw in Florida. And I think that's because, as the 11th Circuit said, it's not constitutional. There were a pair of cases that the Supreme Court decided back in 1989 that kind of laid out the legal framework for deciding cases like this. And there were two types of employees involved in those cases. One were railroad employees, who are obviously doing jobs that have significant health and safety implications. They're driving these enormous locomotives. And then the second category of workers were customs officials who were involved in drug interdiction and are required to carry firearms.

And in those two cases, the Supreme Court made clear that drug testing of employees, when it's done by the government, does implicate the Fourth Amendment privacy rights of those individuals. And so it can only occur if there's an important government interest that outweighs it. And in those two cases, because of the type of work at stake, it was found to be justified. But how that extends to kind of ordinary employees at a county, at a clerk's office, not at all clear that a state could order drug testing across the board.

MARTIN: Somebody who processes marriage licenses, for example.

KIM: Right.

MARTIN: Curt Anderson, how did the employees in Florida react to this? I mean, who initially objected to this?

ANDERSON: The primary objectors were the - one of the main state worker unions and then the American Civil Liberties Union joined in with that as well. And just exactly what Professor Kim just said regarding the broadness of it, and what the program was going to be here was random drug testing of all of these employees, plus all applicants for new job. So it was about as broad as can be.

And I just wanted to go back. The 11th Circuit pointed out that when the state was trying to argue that all these job categories could be included, they said that the state had brought examples, such as when a person is driving a car in a workplace parking lot, that that's a danger. Well, what if they knocked over a stack of heavy boxes? And just to quote from what they said was that, "We reject the idea that a stack of heavy boxes or a wet floor falls within the same ballpark of risk as the operation of a 10,000-ton freight train or the danger posed by person carrying a firearm." So that pretty much puts it in a nutshell, how they felt about the state's argument.

MARTIN: Just to go backwards, the state's argument was - is that this was a measure to protect other employees...

ANDERSON: Yeah, or...

MARTIN: ...From employees who might be drug-impaired. Is that - that was their contention.

ANDERSON: Other employees, property, anything that I suppose if you were in a drug-addled state, supposedly if you knocked something expensive over, that would be a loss. It was about as broad a definition as anyone could think of.

MARTIN: If you're just joining us, we're talking about mandatory drug testing and the conflict over privacy concerns. Our guests are Curt Anderson, a legal affairs reporter for the Associated Press in Florida, and law professor Pauline Kim of the Washington University School of Law.

Curt Anderson, let's wheel around because Gov. Scott went beyond government employees in his desire to implement drug testing. The state also tried to require drug testing for people who are receiving government benefits, specifically welfare benefits. And as I recall, that was also part of his campaign for office. I mean, so it's kind of a pivotal philosophical position of his, right? What happened with that? Was that issue brought forward, too, as part of this lawsuit?

ANDERSON: Yes, a separate lawsuit - just to backpedal a bit - that was actually passed by the legislature with the governor's support and signed into law by him in his first term - first year of his first term. And so that was a little different, of course. And what it did was it said, not existing welfare recipients, but those that were applying for benefits would have to be drug tested.

That one was challenged again by the ACLU, and the ACLU represented, I believe, an applicant, you know, to get a person who was actually affected. And that was struck down as well by a federal judge in Orlando on New Year's Eve of last year. And it is now being appealed by the state to the very same 11th U.S. Circuit Court of Appeals. And it's in the midst of, you know, the briefings and all that, so it's going to be a ways. But I have a feeling that Gov. Scott, given his track record, if he loses again, will still try to get the Supreme Court to hear this one as well.

MARTIN: Professor Kim, what about that? It's my understanding that some states do require drug screening for welfare benefits - now, Utah, Oklahoma and Arizona. What are the legal arguments, pro and con? And how is it that these testing regiments are still sustained?

KIM: Well, I think that the legal arguments in the context of testing welfare recipients is really the same as the - or very similar to the context of employment to the extent that the Supreme Court made clear that drug testing employees implicates important privacy interests that are protected by the Fourth Amendment. That same reasoning would apply to welfare recipients as well. What would be different is the context in which the testing has occurred and the question of whether the government has an important interest in that testing.

Now, the kinds of arguments I've heard in terms of supporting these types of testing programs are that they'll protect children and that they'll save the states money. I don't think there's any real clear evidence that drug testing programs achieve either of those purposes. And really my sense is these programs, to the extent that they're out there - and apparently they're becoming increasingly popular - they're really about symbolism. They're about government or particular public officials trying to take a stand about their views of illegal drug use. The problem is in the employment context, the courts have been pretty clear that symbolic stand is not a sufficient justification for drug testing that burdens someone's privacy rights.

MARTIN: Curt Anderson, Gov. Scott, as you mentioned, is up for reelection this year. Florida voters, as I understand it, also will have the option to consider approving medicinal marijuana use. What happens if people use these substances on their own time apart from the workplace or in another state where that use is legal? Has that been discussed as part of the debate? What happens there?

ANDERSON: Well, not that specific instance. But just to let you know, on the medicinal marijuana vote, that's a referendum that the people are going to vote on that requires a two-thirds vote to pass. And it's probably going to pass. And, you know, it's a - there's a lot of questions like that that aren't really answered.

However, these things we're talking about regarding the drug testing of employees and welfare recipients, that, certainly, if you had medicinal marijuana that was legal and you had people that were legally prescribed to have it, it would seem like that would be a nonstarter in terms of being able to adopt a policy like this.

MARTIN: Professor Kim, what about that? Has this area been tested where you have maybe drug testing regiments bumping up against people's right to use certain substances in their private lives when they're off duty? How is this issue being resolved at present?

KIM: Well, so one thing to keep in mind, in the private sector - so again, public sector, the Fourth Amendment applies. But in the private sector, there are very few restrictions on what an employer can require of its employees or the bases on which it can make decisions to discipline or terminate an employee. So in most states, employers do have the freedom to make personnel decisions based on what their employees do off-duty whether or not it involves illegal drugs like marijuana.

MARTIN: So, Professor Kim, if we could conclude kind of where we started out. I started asking Curt Anderson this at the beginning of our conversation. So I want to ask you to conclude it. Where did the Supreme Court leave us on this question of how far the state can go in requiring these kinds of regiments? Did they send it back to the states to kind of determine what's appropriate and what's not within kind of a narrow framework? Did they actually give us any additional guidance?

KIM: I think when the Supreme Court declined to accept the case from the 11th Circuit that came out of Florida, I think it was basically saying that what the 11th Circuit did there was consistent with its earlier decisions in the 1989 cases I mentioned earlier. In other words, it kind of laid out the framework to be applied in these settings. And it thought the 11th Circuit was applying it correctly, and it didn't see a need to intervene again at this point in time. Doesn't mean all the questions are answered. But at the moment, it seems to be happy with that framework that it has set out. And it's really up to the lower courts to figure out how to apply that framework in specific settings.

MARTIN: Pauline Kim is the Charles Nagel professor of law at Washington University School of Law. She joined us from St. Louis Public Radio. Curt Anderson is a legal affairs reporter of South Florida for the Associated Press. He joined us from NPR member station WLRN in Miami. Thank you both so much for speaking with us.

KIM: Thank you for having me.

ANDERSON: Thank you very much. Transcript provided by NPR, Copyright NPR.

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