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A Test Too Far: Opposing Drug Testing for Welfare Recipients

Among only the latest of the states with lawmakers proposing required drug testing for public assistance beneficiaries are Ohio, Kansas, and New Hampshire. But these bills have been popping up in state legislatures and even in Congress since the 2008 recession hit. Pitched as “cost-saving” measures to avoid wasteful spending, the irony is that Florida–the only state to have implemented drug testing for the Temporary Assistance for Needy Families (TANF) program–actually lost money in its drug testing initiative, before it was halted by a federal district court judge,[1] who ruled it an unconstitutional search under the Fourth Amendment.[2]

CC-BY-NC-SA by K`Tetch

This time last year, my “law office” of first-year law students was hammering out the first draft of the advocacy manual we prepared for our client, the Drug Policy Alliance. I was part of the Statutes team, which conducted an extensive policy analysis of the provisions of the 81 proposed state bills (shoutout to J.G., Gelman and Sully… Bills, bills bills!). We were left with many questions: What will happen to the benefits meant for a child when her parent tests positive? Can the drug test results be used in criminal or child protection cases? Why do half of these proposals lack any substance abuse treatment provisions? Can a sanctioned participant appeal or reapply? Most of the proposed statutes did not provide any satisfactory answers regarding how the drug testing requirement would help low-income families.

Others in the law office researched the fiscal impact, the (un)reliability of urine testing and the likelihood of false positives, the prevalence of drug users among the TANF and general populations (comparable), and constitutional case law on suspicionless government searches. Every single person on the fourteen-member team contributed in a meaningful way to the project, which is really saying something–what an amazing group! At the end of March, we proudly presented our work to the client, alongside that of Jon Stewart & Aasif Mandvi:

The Daily Show: “Poor Pee-ple,” Feb. 6, 2012.

We also had the opportunity to contribute to the ACLU’s answer brief in the case of Luis Lebron, the navy veteran and single dad who is featured in Stewart’s bit above. Lebron v. Wilkins has been appealed to the 11th Circuit Court of Appeals, but it’s not looking too good for the state of Florida and its governor, Rick Scott. [Coincidentally, Scott used to own shares in a chain of drug-testing clinics called Solantic. He transferred those shares to his a trust in his wife’s name prior to the legislation passing in the Florida state assembly.]

Profile in NUSL Magazine of Law Office 14's LSSC Project for the Drug Policy Alliance (2011-2012)

Profile in NUSL Magazine of Law Office 14’s LSSC Project for the Drug Policy Alliance (2011-2012)

Challenges of the Legal Skills in Social Context (LSSC) program aside, our project really exemplified the spirit of the curriculum. We worked tirelessly to oppose an insidious legislative trend targeting the most vulnerable members of our society: very low income families with children. This is a great example of the ways in which the law often serves to further disenfranchise and marginalized unpopular groups, which is an essential lesson to learn as budding attorneys. I am so proud of the final project that LO 14 created for our client, and so grateful to Northeastern Law’s LSSC program and the Drug Policy Alliance for this incredible opportunity to do meaningful work as a first-year law student.

  1. Miami Herald. Oct. 25, 2011. Florida’s welfare drug testing halted by federal judge. From http://www.miamiherald.com/2011/10/24/2470519/florida-welfare-drug-testing-halted.html.
  2. Congressional Research Service. (2012). Constitutional analysis of suspicionless drug testing requirements for the receipt of government benefits. From http://www.fas.org/sgp/crs/misc/R42326.pdf.
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