Gov. Rick Scott is vowing to to take his case for drug-testing welfare applicants to the U.S. Supreme Court after a federal appeals court refused to lift a ban on the 2011 law he pressed into passage.
The 11th Circuit Court of Appeals in Atlanta on Tuesday agreed with a federal judge in Florida who blocked the law in 2011, finding that drug tests amounted to unreasonable search and seizure.
The three-judge panel’s unanimous ruling did not address whether the law is valid but agreed with U.S. District Judge Mary Scriven that the plaintiffs were likely to win based on the merits of the suit. The court also agreed that Scott’s lawyers failed to show a need for the law.
Scott’s lawyers argued that drug-testing applicants for Temporary Assistance for Needy Families, pushed by the governor in his first year in office, is crucial to ensure the well-being of children whose parents are receiving the public aid.
But “the simple fact of seeking public assistance does not deprive a TANF applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy,” wrote Judge Rosemary Barkett in a 38-page opinion.
Scott’s administration “failed to offer any factual support or to present any empirical evidence of a ‘concrete danger’ of illegal drug use within Florida’s TANF population,” Barkett wrote. “The state has presented no evidence that simply because an applicant for TANF benefits is having financial problems, he is also drug-addicted or prone to fraudulent and neglectful behavior.”
Scott, who campaigned for governor on the issue, immediately issued a statement calling the ruling “disturbing” and pledging to appeal to the U.S. Supreme Court. Scott’s lawyers argued that since private businesses commonly require that job applicants be tested, the tests are needed to ensure that TANF recipients, who must seek employment as a condition of the aid, can get jobs.
“Welfare is 100 percent about helping children,” Scott said. “Welfare is taxpayer money to help people looking for jobs who have children. Drug use by anyone with children looking for a job is totally destructive. This is fundamentally about protecting the well-being of Florida families.”
Data from the Department of Children and Families revealed that the short-lived testing program, in effect for four months in mid-2011, resulted in no savings and had no effect on the number of people who applied for help. The law required the state to reimburse individuals who passed the tests, which average around $30. As a result, the tests cost the state more than $45,000, DCF documents showed.
The American Civil Liberties Union of Florida and the Florida Justice Institute filed the lawsuit on behalf of Luis Lebron, an Orlando Navy veteran who sought the aid as a college student and single father.
“What this court made absolutely clear is its (the state’s) burden to come forward with substantial evidence to show that it’s an absolute necessity to suspend the constitutional protections against this entire group of people and they didn’t do that,” said Maria Kayanan, the ACLU’s lead lawyer in the case. “Our reading of it is that it would take a mighty big bag of evidence for the state to meet the burden. But it certainly has not thus far.”
A 2011 Quinnipiac University poll found that, although voters gave Scott poor ratings, they overwhelmingly approved of the drug tests by a 71-27 percent margin.
Kayanan called Scott’s appeal a political stunt.
“He continues to foster the weary stereotype that individuals who are seeking temporary assistance from the state are just by their nature using drugs. After reading the court of appeals opinion, to ask the Supreme Court to review this decision is political theater based on ideology,” Kayanan said.
Under the Fourth Amendment, law enforcement must show reasonable suspicion or probable cause before getting a search warrant for an individual. The Supreme Court has thus far allowed only two exceptions to the law: for public safety, such as drug-testing of pilots or air traffic controllers; and for public school students, to ensure order and control, said West Palm Beach lawyer Bruce Reinhart, a former federal prosecutor who teaches a course at Florida Atlantic University on searches and seizures.
Florida law essentially created a new class of exceptions, but Scott’s lawyers failed to demonstrate the need, the courts ruled. The law might have a better chance of being upheld if it were limited to individuals who had a prior conviction for drug-related crimes or had previously undergone drug treatment, Reinhart said.
“The more narrowly you draw the category, the easier it is to come up with a justification,” he said.
But Scott’s general counsel, Pete Antonacci, said he believes both federal courts erred. Scott is also considering asking the entire 11th Circuit Court of Appeals to review the case before going to the Supreme Court, Antonacci said.
“We’re going to keep pursuing it until there’s finality,” Antonacci, whom Scott previously appointed to serve as interim state attorney for Palm Beach County. “We think we are right on the law. We think the courts ignored our evidence and simply repeated what the trial judge said. We think that a higher court would have better judgment.”
The ruling came less than a month before the appeals court is scheduled to hear arguments in a separate attempt by Scott to require drug-testing of state employees. A district court also has ruled against Scott on that controversial plan, and the appeal will be heard March 22 in Miami.
The News Service of Florida contributed to this report.