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.