Each day this week, Amicus will feature an editorial post written by one of CRCL’s new General Board members.  Today’s post discusses Florida Governor Rick Scott’s welfare drug testing legislation and how it constitutes economic profiling.

Last month, Governor Rick Scott of Florida signed a bill requiring Temporary Assistance for Needy Families recipients to undergo drug testing. If a recipient tests positive for drugs, she or he becomes ineligible for benefits. Scott reasoned that this law prevents taxpayer money from subsidizing drug addiction.

The passage of this legislation sparked a debate in the legal community regarding whether Governor Scott’s drug testing requirement violates the Fourth Amendment rights of welfare recipients. This Constitutional discussion is certainly important – indeed, critics’ Fourth Amendment arguments against the legislation may ultimately lead to its invalidation – however from a civil rights perspective, the discriminatory nature of the legislation is even more important.

Scott’s legislation sanctions a form of mass profiling – “economic profiling.” It forces lower-income individuals to undergo intrusive tests in order to receive government benefits, but does not render benefits received by other groups contingent on undergoing such tests. Supporters of the bill assert that there is nothing discriminatory about it; they claim that it simply addresses the reality that a disproportionate amount of welfare recipients are drug users.  Even if this claim were true (and it is questionable), it cannot justify government action that targets a broad population based on purported characteristics of some of its members.  Such action constitutes a paradigmatic example of discrimination.

Furthermore, still assuming the truth of supporters’ assertions, the legislation does not target other groups that similarly include significant numbers of drug users. Many middle and upper class college students receive some form of government aid and many of these students are drug users (if you don’t believe me, go to a party at my alma mater). Yet Scott’s legislation does not condition students’ government-issued benefits on negative drug test results. Nor does the legislation place such requirements on tax breaks – which are government benefits by another name – to wealthy individuals in high-stress professions often associated with drug use. No, the legislation does not impact any of these groups; it only targets welfare recipients. It only targets the poor.

Given that courts assess claims of economic discrimination under “rational basis review,” Governor Scott’s legislation is unlikely to be struck down based on these grounds. Nevertheless, it is important that the discriminatory nature of the legislation remains a part of the debate. Raising awareness of its profound flaws may help prevent the passage of future similar legislation.

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9 Comments

  1. Jon Cioschi says:

    Great post, Kev…but I’m not very optimistic that raising awareness about the discriminatory impact of public benefits drug testing requirements will do much other than secure the approval of many individuals on both sides of the political spectrum. These types of eligibility tests seem to be popular, I suspect in large part because of the myths surrounding the exploits of public benefits recipients since probably the Reagan days (e.g., “the welfare queen and her cadillac,” the welfare recipient as likely drug user, et al.). Most, I suspect, believe that those who receive public benefits are lazy, don’t want to work, and probably engage in illegal activity, so why not drug test them? Why should my tax dollars support their drug habits, especially when their drug habits probably lead them further down the downward spiral of poverty (they will probably say)?

    I see two fairly plausible escape hatches here. First, the 4th Amendment. What concerns me about this, as you know, is the fact that the 6th Circuit divided evenly on the constitutionality of a similar program under the 4th Amendment, which makes me concerned about what a Florida District Court or southern federal circuit court might say. Second, the worsening economy. I’m inclined to think that, perversely, as poverty spreads among formerly middle class people from diverse racial/ethnic backgrounds, more people with, perhaps, will end up on the public benefits rolls (assuming the public benefits system is not obliterated by this debt committee). More people means more political clout; more people means a greater likelihood that those with substantial political power will be affected by these attempts to criminalize poverty. Hopefully, this will not only translate into removal of inappropriate barriers to social security, but also a more robust social support structure. The sad part about this theory, of course, is that a tremendous negative – less discriminatory and deeper poverty – seems to be the only thing that will end another grave negative – inattention to the growing inequality and poverty in the U.S., along racial lines especially.

  2. Kevin Golembiewski says:

    I agree that these types of tests are popular because of stereotypes about poor people, but I do not think that raising awareness of the discriminatory nature of such tests will “secure approval.” Regardless of one’s political beliefs, discrimination in our country is frowned upon. Thus, presenting a rational argument that demonstrates a policy is discriminatory will likely stigmatize a policy – it may not turn people totally against such a policy, but politicians will think twice about passing something branded “discriminatory.” In addition, talking about the discriminatory nature of such tests will likely “fire up” those the policy is affecting even more so, as well as further enflaming the liberal base. This may have the effect of actually provoking these groups into serious action.

  3. Jon Cioschi says:

    “Discrimination” per se may be frowned upon, but what is frowned upon about “discrimination” is not static. The Roberts Court, and plenty of people along with them, seem to frown on affirmative integrative efforts aimed at rectifying past discriminatory injustices. Think about the oft-spoken, seeming consensus regarding Affirmative Action – it’s unfairly discriminatory towards white men; what did we do to deserve this? What matters is who is being discriminated against, as opposed to the fact of discrimination itself. When it’s the white elite, the practice is terminated; when it’s the underclass, too bad (take, for instance, the mass, police-led violations of the 4th Amendment that occur in largely black and hispanic low-income neighborhoods throughout the country). This is all to say that, in my opinion, plain talk of discrimination is not going to get us very far. After all, how many problems that predominantly directly affect marginalized communities are so often discussed, but so broadly neglected?

    This is not to say that I do not think that highlighting this discrimination is unimportant. It’s obviously very critical to identify this for the purposes of rallying the base. It’s clear to me, though, that those opposed to these policies need to do more than just identify and rally around their opposition to these policies, which is going to be hard, especially considering the welfare stigma I identified above and the poverty-as-choice dogma that pervades all but the left wing in American politics, and the fact that these tests are ostensibly designed to screen for illegal behavior (and thus, those opposed to these policies will be faced with the label, albeit a misleading one, of “supporting drug use,” “worsening conditions of poor communities”). But anyway, if those opposed can muster the force to challenge these policies, I think a great way to do it would be to tack riders onto bills that condition public officials’ salaries (e.g., the legislators themselves) and privileged college students loans/grants on negative drug tests. The entire bills would then be more likely to fail, as these empowered groups would balk at such requirements, and politicians would be hard pressed to explain why they and whatever other powerful groups are subjected to such burdens are somehow more deserving of privacy protection than welfare recipients (i.e., they would not be able to do so coherently without implying approval of economic discrimination). Something like this has been attempted in Kansas: http://www.npr.org/templates/story/story.php?storyId=125387528. But even in this case described by NPR, it doesn’t seem that identifying the discriminatory nature of this policy was sufficient to convince her colleagues to jump ship on drug testing legislation; nor, for that matter, is there evidence in this article that the Kansas general public was very fired up about this (presumably, there would be if there were serious public opposition to this bill). In any case, these clever policy straegies would certainly be preceded by a rational discussion of the problems with these policies; but rational discussion alone I don’t think would be sufficient to galvanize much support other than from liberal politicians, which are seemingly a dying breed.

    Another note in response: I think it’s important to organize those groups directly affected by these policies, and I think that might lead to some degree of change, but let’s not forget that they don’t have much of a say, even based on numbers, in our political system, and politicians on both sides of the spectrum, excepting people like Bernie Sanders and the Progressive Caucus and other similarly-minded state politicians, care much about poor people’s welfare. I’m not sure how much this would change, short of broad-based social movements/political engagement by those groups and their supporters. Moreover, these are not people, as you know, who have much time to spare on political organizing – recall, TANF recipients are families struggling on the margins of subsistence. I think that for there to be any strong form of resistance by the average benefit recipients, things have to get worse, which, by the looks of things on the Federal level and some state levels (at least here in PA), is actually occurring and will probably exacerbate.

    And lastly, re: the liberal base. I really want to believe there are a lot of us, but I think our numbers are small, and, clearly, at the levels of (most) state and national politics, our influence isn’t very significant. Nor are our priorities much aligned. Nor are we well organized. This is all to say that short of a seismic shift in the activity of the liberal base, I don’t think enflaming them will do much on its own. Sure, we an add this to our list of grievances, but we haven’t seemed to mobilize for much besides Barack Obama’s 2008 campaign. Even when we had the Senate and the House, none of us did much to pressure a more robust healthcare plan!

  4. Kevin Golembiewski says:

    I think we are on the same page. You state, “This is not to say that I do not think that highlighting this discrimination is unimportant. It’s obviously very critical to identify this for the purposes of rallying the base.” I also think that talking about this discrimination is important and can aid in deterring future similar legislation through means such as rallying the base or stigmatizing a policy. An applicable example of this is the crack/cocaine disparity. While this disparity was not addressed until recently, a history of discussion about the discriminatory nature of the disparity helped provoke change in our approaches to crack and cocaine.

    I do not assert that talking about discrimination was the sole impetus for change with regards to the crack/cocaine disparity nor do I think it is the end-all solution for legislation like Rick Scott’s. But, it is a good and important starting point.

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