The 30-page order by U.S. District Judge Mary Stenson Scriven, in Orlando, is an easy read and comes down to an essential point: The government may not condition the receipt of a benefit upon the violation of a constitutional right. What is remarkable is not that every federal judge who has ever looked at this law has found it unconstitutional but that Florida officials—led by the indefatigable Governor Rick Scott—defended it as long as they have.
What was Florida's argument in defense of the statute, passed with overwhelming support by Republicans in May 2011? Both before and after the 11th Circuit ruling last year, the rationale remained the same. The mandatory drug tests were necessary (and legally justified) for all candidates under the "Temporary Assistance for Needy Families" program to: 1) ensure TANF participants’ job readiness; (2) ensure the TANF program meets its child-welfare and family-stability goals; and (3) ensure that public funds are used for their intended purposes and not to undermine public health.
Judge Scrivens rejected these arguments as factually and legally insufficient when she granted a preliminary injunction temporarily halting the law late in 2011. Then the 11th Circuit, one of the most conservative federal appeals courts in the nation, did, too. Language from the 11th Circuit ruling last year that upheld Judge Scrivens' injunction gives you the best sense of how far short Florida fell in meeting its obligation to keep its citizens free from "suspicionless drug testing." The court concluded:
[T]he only pertinent inquiry is whether there is a substantial special need for mandatory, suspicionless drug testing of TANF recipients when there is
- no immediate or direct threat to public safety,
- when those being searched are not directly involved in the frontlines of drug interdiction,
- when there is no public school setting where the government has a responsibility for the care and tutelage of its young students,
- or when there are no dire consequences or grave risk of imminent physical harm as a result of waiting to obtain a warrant if a TANF recipient, or anyone else for that matter, is suspected of violating the law.
We conclude that, on this record, the answer to that question of whether there is a substantial special need for mandatory suspicionless drug testing is “no.”
How did Florida respond to that analysis? By offering "expert" witnesses whose testimony was excluded after Judge Scrivens declared it unreliable, and by offering lay witnesses whose testimony about drug use among TANF recipients was unsupported by statistical information. And by arguing that test results were skewed because Florida welfare recipients were refusing to take the test for fear they would fail. Indeed, the most reliable statistical evidence, Judge Scrivens found, was a study commissioned by the state in 1998, the findings of which vitiated the new law. From her ruling:
In fact, the study commissioned by the State undermines its argument on this point. In 1998, DCF conducted a study known as the Demonstration Project after the State passed legislation requiring the Demonstration Project to test empirically whether individuals who applied for TANF benefits were likely to abuse drugs and whether such abuse affected employment opportunities. In the study, researchers found a lower rate of drug usage among TANF applicants than among current estimates of the population of Florida as a whole.
This would suggest that TANF funds are no more likely to be diverted to drug use or used in a manner that would expose children to drugs or affect “family stability” than funds provided to any other recipient of government benefits. The researchers also found no evidence that TANF recipients who screened and tested positive for the use of illicit substances were any less likely to find work than those who screened and tested negative. To date, the Demonstration Project remains the only competent evidence of record addressing drug use among the Florida TANF population.
There is the political issue of how America treats welfare recipients—the myth of the drugged-out welfare queen is indeed a powerful one. There is the racial and moral issue as well. And of course there is the legal issue. But the outcome of this Florida case, and of this divisive law, cannot merely be explained by citing the application of obvious constitutional principles to a patently flawed law. It also must be explained by acknowledging that there was terrible lawyering by state attorneys. Just read the final 10 pages of Judge Scrivens opinion and ponder the ways in which Florida took a bad law and made it look even worse (just like California took Proposition 8 and then utterly failed to justify it at trial).