Michigan ACLU Seeks Halt to Nation's First Mandatory Welfare Drug Testing Program

FOR IMMEDIATE RELEASE
Thursday, September 30, 1999

DETROIT -- Saying that Michigan's poorest families should not be treated like criminals, the American Civil Liberties Union of Michigan today filed a federal class-action lawsuit to halt the nation's first statewide drug testing requirement for welfare recipients.

"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," the ACLU said in its complaint. A constitutional ban on Michigan's program, due to go into effect on October 1, could send a strong warning to other states, the ACLU said.

The ACLU filed its class-action lawsuit on behalf of all Michigan welfare recipients, including named plaintiffs Tanya L. Marchwinski and Terri J. Konieczny, both single mothers on welfare, and Westside Mothers, a 500+ member advocacy organization created for and by families in need. The national ACLU's Drug Policy Litigation Project and local attorneys are assisting in the lawsuit.

"Forcing parents to choose between providing for their children and giving up their privacy rights is a giant step backward for public policy in Michigan," said Kary Moss, Executive Director of the ACLU of Michigan and an attorney in the case.

"The Fourth Amendment guarantees that no individual in this country can be subjected to a search by the government unless there is reasonable suspicion that they have committed some crime," she added. "Welfare recipients may be poor, but that's not a crime -- not yet, anyway."

Refusal to submit to random drug testing or failure to comply with a mandatory "substance abuse treatment plan" means denial of income support and other benefits under the state's "Family Independence Assistance" program for families with dependent children. (Adults without children are not eligible for welfare in Michigan.)

The mandatory urine testing program, authorized under (but not required by) Congress' punitive "welfare reform" law of 1996, ignores the less restrictive approaches of other states, including testing only when there is suspicion of drug use and voluntary programs for substance abuse and mental health problems.

"This program only hurts families," said Selma Goode, the founder of Westside Mothers. "Whether or not substance abuse drug treatment is mandatory, the fact is that Michigan has no adequate drug therapy programs for needy parents with children -- and that is exactly who this law is going to affect."

"The state is willing to spend money on drug testing, but not on drug treatment," she added. "I think they've got their priorities mixed up."

Despite Congress' open invitation to conduct the intrusive searches, Michigan is the only state now actively seeking to implement urine testing. In Oregon, officials quickly ended a drug testing program after finding that anger over the tests impeded treatment and because the testing did nothing to address the far more significant problem of alcoholism.

Florida and Louisiana have considered such programs too, but Florida shelved its plans after threat of an ACLU lawsuit, and the Louisiana legislature has not yet appropriated the funds needed to implement a program.

Michigan officials have claimed that the tests are necessary in order to prepare people on welfare for the realities of the working world. But according to a July 1999 University of Michigan study, Michigan's welfare population has "unusually high levels of some barriers to work, such as physical and mental health problems, domestic violence, and lack of transportation, but relatively low levels of other barriers, such as drug or alcohol dependence."

"The emotionally charged myth of the drug-addicted welfare mother is not supported by empirical data," said Graham Boyd, director of the national ACLU's Drug Policy Litigation Project. "In fact, a recent federal study shows that the percentage of welfare recipients using, abusing, or dependent on alcohol or drugs is relatively small and is in fact consistent with the general population."

The nation's highest court has also looked askance at suspicionless testing. In two recent constitutional challenges to government drug testing of public employees, the Supreme Court ruled that only under very narrow circumstances may government employers impose a drug test without suspicion of drug use, Boyd noted.

The ACLU seeks an immediate halt to Michigan's program and asks the court to declare it unconstitutional under the Fourth Amendment's protection against unreasonable searches and seizures.

The case is Marchwinski et al., v. Family Independence Agency, et al. Attorneys in the case are Kary Moss and Graham Boyd of the ACLU; Prof. Robert A. Sedler of Wayne State University Law School in Detroit and David R. Getto and Cameron R. Getto of Southfield, as cooperating attorneys.

The ACLU of Michigan's brief is available online at:
www.aclumich.org\briefs\welf930.htm.