Michigan stands alone in requiring its residents to provide a drug-free
urine sample in order to continue receiving the state's assistance in
achieving "family independence." Because abuse of alcohol and other drugs,
often in conjunction with mental health problems, can interfere with
employment, most states have created substance abuse treatment and
counseling -- and every state except Michigan has determined that these
treatment programs will work better without coerced drug testing.
As the ACLU's lawsuit asserts, Michigan's welfare recipients have done
nothing to lower their expectation of privacy. They are no different than
virtually every member of the general population who chooses to make use
of some form of governmental benefits or subsidies, including tax credits,
medical insurance, and scholarships.
The drug-testing regime is scheduled to go into effect on October 1,
1999. The three sites chosen for a pilot program are Alpena County and
Presque Isle Counties, Barrien County and a designated area of Western
Wayne County.
Historical Background
Michigan's drug testing program was authorized under the Personal
Responsibility and Work Opportunity Act of 1996 -- Congress'
much-publicized federal welfare reform law. The law authorized states to
impose drug testing on welfare recipients -- an invitation no state has
taken until now -- and imposed strict time limits on the period any
individual can receive benefits, prompting states to devise new ways to
move recipients from welfare into employment.
Ignoring the less restrictive approaches of other states, Michigan
enacted MCLA 400.57l, a law authorizing "substance abuse testing as a
condition of eligibility for family independence assistance." The law
directs the Family Independence Agency 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 – will not be
a part of the testing program.
Consequences of a Positive Drug Test
Refusal to agree to random drug testing will result in denial or
termination of FIA income support. The state may also terminate medical
insurance, food stamps, and support for pregnant women or nursing
mothers.
Parents terminated from FIA assistance are twice as likely to lose
custody of their children. Rates of homeless, malnutrition, and
unemployment all increase drastically upon termination of FIA
assistance.
FIA participants who submit to drug testing also risk losing this same
vital assistance. According to Michigan's law, "failure to comply" with a
substance abuse treatment plan "shall be penalized in the same manner as a
work-first program violation" – a penalty that includes "reduction" or
"termination" of assistance under FIA programs.
State officials and the legislature have not made clear what actions
constitute "failure to comply" with a treatment program. If compliance
with drug treatment means that a person must become entirely drug-free
within a specified period of time and remain drug-free for the duration of
FIA assistance, then FIA participants with a diagnosable medical condition
– addiction – will be excluded from FIA programs unless they are
successfully cured of this condition on a schedule and by a treatment
modality dictated by a government agency. Such an approach makes a mockery
of sound medical practice.
Barriers to Employment
There is no rational basis for singling out welfare recipients for drug
testing. Michigan's FIA participants do not fit the description of any
category of individuals previously subjected to governmental drug testing.
They do not perform dangerous tasks like operating a nuclear power plant,
driving a train, or carrying a firearm, and they are not entrusted with
sensitive governmental operations like drug interdiction or handling
classified information.
Numerous studies identify barriers to employment of much greater
significance than use of illegal drugs: low skills; lack of child care;
lack of housing; depression and other forms of mental illness; and
alcoholism. Most states address these issues with training, counseling and
appropriate support, and all states address these issues with less
restrictive means than now employed by the defendants. Abuse of illegal
drugs, however, affects welfare recipients in roughly the same measure as
the general population, and rarely stands alone as a barrier to
employment.
States have more effective options for assisting FIA recipients in
addressing substance abuse. These include the provision of income
assistance and voluntary, comprehensive mental health treatment, not by
threatening to deny assistance unless the recipient agree to a drug test.
Research demonstrates that supplemental income helps drug and alcohol
users decrease or cease their use of harmful substances by bringing
stability to their lives. Substance use and abuse is also frequently
connected to depression or other mental health problems, thus making
mental health services vital in overcoming addiction to alcohol or other
drugs.
Welfare Drug Testing in Other States
After a brief use of drug testing in parts of Oregon, officials
specifically rejected drug testing because welfare recipients became so
angry and suspicious that drug treatment became more difficult, because
the testing did nothing to address the far more significant problem of
alcoholism, and because non-invasive screening devices were effective in
identifying individuals in need of treatment.
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.
ACLU Fact Sheet #2: What the Experts
Say
The rationale for drug testing is based on myth, not fact.
According to a federal study, "[t]he percentage of welfare recipients
using, abusing, or dependent on alcohol or drugs [is] relatively small and
consistent with the general US population and those not receiving welfare
benefits." B. Grant and D. Dawson, "Alcohol and Drug Use, Abuse, and
Dependence among Welfare Recipients," 86 American Journal of Public Health
1450 (Oct. 1996).
Other studies indicate a somewhat greater rate of overall
drug consumption among welfare recipients -- mainly use of marijuana – but
indistinguishable rates of drug abuse, especially for drugs other than
marijuana.
Citing a new federal study that found that 70 percent of
drug users are employed full time, the nation's Drug Czar, Barry McCaffrey
pointed out: "The typical drug abuser is not poor and unemployed. He or
she can be a co-worker, a husband or wife, a parent." "Worker Drug Use and
Workplace Policies and Programs: Results from the National Household
Survey on Drug Abuse" (Sept. 8, 1999).
In any event, drug use is not a primary barrier to
employment for Michigan's welfare recipients. A recent University of
Michigan study reveals that FIA participants "have 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." S. Danzinger, et
al., "Barriers to the Employment of Welfare Recipients," 3-4 (July 1999).
Michigan has failed to ensure that comprehensive drug
treatment programs, including residential care programs with child care
facilities, exist to ensure that those identified with substance abuse
difficulties can obtain adequate drug treatment. Without adequate
treatment, recipients with substance abuse problems cannot be moved from
assistance to employment. Mandated drug testing has nowhere to go. For
example, although it is recognized that treatment programs must be
equipped to provide access to quality childcare services, none of the
available drug treatment programs in the three pilot areas, to the best of
our knowledge, are equipped with childcare services.
As one expert has recognized: "The lack of childcare
services is repeatedly cited in drug abuse surveys as an inhibiting factor
that affects not only a woman's decision to enter treatment but also her
retention in a program (National Institute on Drug Abuse, 1979)." M.
Blasinsky, "Childcare Support Services for Female Clients in Treatment,"
in Treatment Services for Drug Dependent Women (U.S. Department of Health
and Human Services, Vol. 1, 1981), p. 408.
ACLU Fact Sheet #3: Urine Testing Cannot
Reliably Identify Drug Abuse/Addiction
Urine testing is performed by immunoassay, a methodology
subject to several sources of error. The most common disadvantage
associated with the test is the production of "false positives"
(incorrectly detecting the presence of chemical metabolites, or residues,
where none are present).
This can occur due to the nature of the technology, which
relies on the detection of color changes in the urine after reaction to
drug metabolites. When non-illegal chemicals create color changes similar
to the change created by metabolites of prohibited substances, some
individuals tested may be incorrectly identified as drug users. Examples
of such chemicals are ibuprofen, which can react as a false positive for
marijuana, and the metabolites of poppy seeds, which can react as a false
positive for narcotics.
In addition, drug testing is notoriously over and
under-inclusive. For example, testing positive for the presence of
marijuana does not provide proof or even strong evidence of drug
addiction. And conversely, an abusive pattern of cocaine binges will not
register on a drug test unless drug use occurred within 24-48 hours before
collection of a urine sample.
ACLU Fact Sheet #4: Cases Relating to
Suspicionless Drug Testing Of Welfare Recipients
Skinner v. Railway Labor Executives' Ass'n,
489 U.S. 602 (1989): The Supreme Court held that a suspicionless
drug-testing program designed to test railroad employees after they were
involved in accidents was constitutional under the Fourth Amendment, given
such factors as the government's compelling interest in regulating the
conduct of railroad employees who were engaged in safety-sensitive tasks
and capable of causing "great human loss before any signs of impairment
become noticeable to supervisors or others."
National Treasury Employees Union v. Von Raab,
489 U.S. 656 (1989): The Supreme Court held that suspicionless
drug-testing of U.S. Customs Service employees applying for promotion to
positions involving interdiction of illegal drugs or requiring them to
carry firearms was reasonable under the Fourth Amendment, given the
extraordinary safety and national security hazards that would attend the
sensitive positions in question.
Vernonia School District v. Acton, 515 U.S.
646 (1995): Applying Skinner and Von Raab, a divided Supreme Court upheld
as constitutional a school district policy requiring students to consent
to random drug testing as a condition for participation in interscholastic
athletics. Balancing the students' expectations of privacy and the
intrusive nature of the test against the government's interest in
drug-free schools, the Court held that the drug policy did not violate the
Fourth Amendment given such factors as: the athletes' relatively low
expectation of privacy (e.g. due to the requirements of communal undress
and preseason physical exams); the fact that the athletes were leaders in
the school's drug culture; and that the tests were "directed more narrowly
to drug use by athletes, where the risk of immediate physical harm to the
drug user or those with whom he is playing his sport is particularly
high."
Chandler v. Miller, 520 U.S. 305 (1997): The
Supreme Court found unconstitutional a Georgia Statute requiring
candidates for state offices to certify that they had tested negative in a
drug urinalysis. The Court said that the law, introduced to demonstrate
the state's commitment to challenging drug abuse, "diminishes personal
privacy for a symbol's sake," and that Georgia failed to show a special
need substantial enough to override the candidates' privacy interests.
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