Welfare Drug Testing

The War on Drugs has become a war on the poor. Instead of helping lift the destitute out of poverty with compassionate and sensible economic policies, drug laws target the poor, trapping them in a vicious cycle of poverty and disempowerment.  Drug testing welfare recipients is just one example of how our drug laws single out the poor.

Brief History

• As part of his administration's war on drugs and zero tolerance policies, President Reagan ordered drug testing of all federal employees in the 1980s.[i]       
• The Supreme Court scaled back random drug testing to only include employees in safety sensitive positions such as pilots and conductors. [ii]        
• The 1996 Welfare Reform Act authorized (but did not require) states to impose mandatory drug testing as a prerequisite to receiving state welfare assistance.[iii]       
• Michigan is the first and only state to require random drug testing of all welfare recipients.[iv] In its lawsuit fighting the Michigan policy, the ACLU contends that "mandatory drug testing of a broad swath of the adult population has never in our nation's history been proposed or enacted by a state government, much less approved by a court."" [v]  The Sixth Circuit Court of Appeals upheld the lower court decision striking down Michigan's policy. 

Current Laws

• The Fourth Amendment protects against unreasonable search and seizure. [vi] Mandatory drug testing is considered a search, and courts have ruled that most drug testing programs can only be imposed if they serve special needs, usually related to public safety.       
• In 1996, Congress undertook a massive overhaul of the welfare system.  Under the Welfare Reform Act  (officially known as the Personal Responsibility and Work Opportunity Act), people convicted of drug offenses are subject to a lifetime ban on receiving cash assistance and food stamps.[vii] The law also allows states to impose drug testing on welfare recipients.       
• Michigan enacted a law authorizing suspicionless drug testing as a condition of eligibility for family independence assistance, MCLA 400.57l. The law directed the Family Independence Agency (FIA) to ""implement a pilot program of substance abuse testing as a condition of family independence assistance eligibility in at least three counties, including random substance abuse testing."" Although the legislature called for ""substance abuse testing,"" the most commonly abused and most lethal drugs - alcohol and tobacco - were not a part of the testing program. Refusal to be tested resulted in denial or termination of FIA income support and the possible termination of medical insurance, food stamps and support for pregnant women or nursing mothers. FIA participants who submitted to drug testing also risked losing vital assistance. According to Michigan law, ""failure to comply"" with a substance abuse treatment plan resulted in the reduction or termination of assistance under FIA programs.[viii]  The courts have struck down the Michigan policy.[ix]      
• Although no other states have implemented a law as extreme as Michigan's, Arizona[x] and Vermont[xi] are currently considering similar legislation. 

Myths and Facts

Myth 1 - Welfare recipients are more likely to use drugs than non-welfare recipients, thereby justifying random drug testing for welfare recipients. 

Fact 1 - A wealth of evidence demonstrates that welfare recipients and other adults use drugs at similar rates.

• According to a 1996 study by the National Institute of Alcohol Abuse and Alcoholism, differences between the proportion of welfare and non-welfare recipients using illegal drugs are not statistically significant. In each case, the national average for drug use fell within the range of the welfare population that has been found to use illegal drugs.[xii]      
• Before the Michigan policy was halted, only 10% of recipients tested positive for illicit drugs.  Only 3% tested positive for hard drugs such as cocaine and amphetamines.  This is similar, if not lower, to rates of illicit drug use in the general population.[xiii]      
• More parents with an income 300% or more above the poverty line have used drugs than parents whose income is below the poverty line.[xiv]

Myth 2 - Mandatory drug testing programs are an easy way to make sure state welfare money is not being spent in the wrong way.

Fact 2 - Many states initially considered mandatory drug testing of welfare recipients, but did not implement them for various reasons, including financial considerations.

• New York and Maryland originally intended to require random drug testing for those receiving welfare.  They discarded their drug testing plans after finding that a program of questionnaires is more cost-effective.[xv]      
• Louisiana passed a law in 1997 requiring drug testing for welfare recipients.  However, a task force set up to implement the law decided that more limited drug testing of individuals identified by a questionnaire is more cost-effective than mandatory drug testing.[xvi]        
• Certain counties in Oregon experimented with drug testing on some welfare recipients.  The process was halted when it was found that drug testing was less effective in identifying drug abuse than through less invasive methods.[xvii]      
• Alabama decided against drug testing because it found that focusing on job training programs was a more effective method of moving individuals off of welfare.[xviii]      
• Iowa decided against drug testing welfare recipients since it could not include a test for alcohol abuse, which is more prevalent than illicit drug abuse.  The state found other methods to be more cost-effective. [xix] 

Myth 3 - Drug use among those on welfare often leads to continuing unemployment and child neglect and abuse.  Testing for drugs is the best way to find and fix these problems. 

Fact 3 - A focus on drug testing distracts from other problems that contribute to unemployment and child neglect more than drug use.  For example, far more welfare recipients have psychological disorders than drug problems.  Additionally, drug testing does not differentiate between drug use and drug abuse.  A positive result in a drug test does not necessarily identify a drug problem. 

• A study published in January 2001 by the University of Michigan found that drug testing is not an efficient or cost-effective way of testing for psychological disorders.  Data analysis concluded that 4% of those on welfare were seen as drug dependent.  Yet, 7-9% tested positive for drug use, despite not showing any drug dependence problem.  Even more overwhelmingly, 21-22% did not test positive for drug use, but exhibited signs of alcohol dependence or psychological disorders.[xx]        
• 26 states have chosen to use alternative methods to drug testing, including questionnaires and observational methods.  These methods are not only less intrusive, but more effective.  An Oklahoma study found that a questionnaire was able to accurately detect 94 out of 100 drug abusers.  The questionnaire was also useful in detecting alcohol abusers, something drug tests fail to accomplish.[xxi]

Myth 4 - Welfare drug testing is a limited use of drug testing laws.  Drug testing of welfare recipients could not be applied to other groups.

Fact 4 - If random drug testing for welfare recipients was permitted, it could eventually lead to a vast expansion of drug testing.  

• In halting the implementation of Michigan's drug testing law, U.S. District Court Judge Victoria Roberts ruled that the state's rationale for testing welfare recipients ""could be used for testing the parents of all children who received Medicaid, State Emergency Relief, educational grants or loans, public education or any other benefit from that State.""[xxii]

Important Court Cases - Marchwinski v. Bowler

• In September 2000, U.S. District Court Judge Victoria Roberts halted the Michigan law calling for the random drug testing of welfare recipients.  She found that the law violated the Fourth Amendment and that ""upholding suspicionless drug testing would set a dangerous precedent? Drug testing under these circumstances must satisfy a special need, and that need must concern public safety.""[xxiii]        
• In April 2003, the full U.S. Sixth Circuit Court of Appeals affirmed the decision of the District Court declaring Michigan's welfare drug testing law unconstitutional.[xxiv] 

Expert Opinions

• The Center for Addiction and Mental Health (CAMH) recommended against implementing random drug testing of welfare recipients.  CAMH believes that there was little benefit to testing and that the stigma associated with testing impacted those on welfare negatively.  They recommended that resources be allocated towards better training for government workers to detect signs of substance abuse and mental disorders, as well as to greater assistance and treatment to those who need help.[xxv]

ACLU Position/Summary

The ACLU believes that suspicionless mandatory drug testing is discriminatory, an invasion of privacy and a waste of state funds. Welfare recipients' constitutional rights are no less sacred than the rights of any recipients of state assistance including those of corporate subsidies. And the Michigan welfare policy denies benefits to the neediest children. This policy sends the message to welfare recipients that they are criminals solely because of their socioeconomic level. As a defender of civil liberties, the ACLU believes that all people, rich and poor, are entitled to the same privacy rights. As Kary Moss, the Executive Director of the ACLU of Michigan, explains, ""No one should have to choose between their constitutional rights and providing for their families."" The ACLU applauds the Sixth Circuit Court of Appeals for recognizing the unconstitutional discrimination inherent in the Michigan policy. Emphasizing the important precedent this recent decision sets, Graham Boyd, Director of the ACLU Drug Policy Litigation Project, said, ""This ruling should send a message to the rest of the nation that drug testing programs like these are neither an appropriate or effective use of a state's limited resources.""