Corrections to why drug testing people who are applying for assistance is a bad idea

This is what it sounds like: corrections to my prior post, why drug testing people who are applying for assistance is a bad idea.

I recently learned that I may have been incorrect regarding the constitutionality of this measure and of drug testing in general. I stand by what I said about it being a bad policy idea for all of the other reasons I cited, but if I’m wrong about the law I will attempt to correct it.

I originally said:

The legal argument: This is a violation of the Fourth Amendment right against unreasonable search and seizure. There is no probable cause to justify a search here. This is just stripping away the rights of people who are too poor to protest. It is unconstitutional. I think this is the only thing that needs to be said, but apparently not.

However, I looked up the case law and found the ACLU page on Drug Testing of Public Assistance Recipients as a Condition of Eligibility, which makes many of the arguments I’ve made but with more research and better examples. It cites to one case, Marchwinski v. Howard, which went through a couple of appeals:

The district court ruled in September 2000, that the testing program violated the recipients’ Fourth Amendment rights to be free of unreasonable searches and seizures. While the court conceded that testing welfare recipients for drugs is a “laudable and understandable” means to address substance abuse as a barrier to employment, that goal is not a sufficient “special need” to warrant drug testing.

The judge interpreted prior case law as authorizing drug testing only if public safety is at stake, and that there wasn’t sufficient concern about child abuse to say that this was a public safety issue. She also pointed out that the way it was set up, it could be used to test anyone who was receiving public benefits or anyone who has children, which is really a huge number of people.

On appeal a 3-judge panel decided that the drug testing program didn’t violate the Fourth Amendment, reasoning that because no one is constitutionally entitled to welfare benefits the conditions for receiving them are voluntarily accepted by the recipient. But this opinion was vacated, and when the case was reheard there was a tie vote and that meant they had to go with the previous decision, that it was an unconstitutional violation of the Fourth Amendment right against search and seizure.

There is no Supreme Court decision on the case. So I believe my original point was right, at least for now.

In the part about drug testing for work, I had said:

But I had to get drug tested for my job!: The actions of a private company are not the same as the actions of a governing body administering an entitlement program. It’s also bullshit for your employer to piss-test you unless having clean piss is part of the job itself, but that’s not covered by the Constitution. Learn the difference between public and private.

I checked out the ACLU website again, and found that whether teachers can be drug tested is still being hotly debated. I stuck with teachers as my example since there’s a lot of debate about drug testing them and information was easy to find.

A North Carolina court held that suspicionless drug testing of all school employees violated the North Carolina Constitution, and the school couldn’t just say that teachers were all in safety-sensitive positions. This is a quiet way of saying that using drugs at all is not the same as using drugs in a way that interferes with your job.

A federal court in Louisiana issued a consent decree ending a policy that required any teacher who suffered an injury on the job to submit to a drug test. This policy was obviously messed up since the case here focuses around a woman who was forced to take a drug test after a student punched her.

There’s a case going on in Hawaii over drug testing of teachers. I’m not clear if it’s been resolved, but what it looks like is that Governor Lingle wanted to drug test the teachers, and her super awesome plan to pay for this was to cut services and programs for students. The school board felt that this was a bad idea and said no.

The governor and other people responded not by producing the money, but with the typical Orwellian argument that people who aren’t doing anything wrong have nothing to hide. However, piss tests reveal a whole lot of sensitive information other than merely whether a person is using (some) drugs, such as various health conditions including pregnancy status and what medications someone is taking, and having to divulge this information is at best a violation of privacy rights and at worst could lose someone their job for other reasons.

In West Virginia in 2009, a federal court permanently blocked random suspicionless drug testing of teachers:

The Court had previously halted the drug testing policy in an order issued January 8, 2009, which held that the constitutional right to privacy outweighs the government’s interest in drug testing virtually all public school employees without cause – particularly in light of the government’s inability to document a single instance where student safety had been impacted by employee drug use.

The one Supreme Court decision I can find on point, Skinner v. Railway Labor Executives Association, states that random drug testing of public employees in “safety sensitive” positions is okay. But it is clear that this is about safety sensitive positions, like… operating a train.

There is not a clear ruling that I can find about the constitutionality of drug testing teachers and other government employees who are not in safety-sensitive positions. It looks like the push is that it is an unreasonable invasion of privacy.

In conclusion I have to update what I said previously, because I was wrong. It is still the case that your private employer can drug test you at their whim, and there can be required drug tests for some government jobs for reasons having to do with physical safety because the safety concerns override the Fourth Amendment guarantees against unreasonable search. The jobs that require tests or are allowed to require tests are the exception rather than the default, and in general it is coming to be accepted that you cannot be tested without these substantial safety concerns but we are not quite there yet. So there is a gap between public and private, but it is not as wide or certain as I had originally written.

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