Pubdate: Mon, 09 Apr 2012
Source: Atlanta Journal-Constitution (GA)
Copyright: 2012 The Atlanta Journal-Constitution
Contact: http://www.ajc.com/opinion/content/opinion/letters/sendletter.html
Website: http://www.ajc.com/
Details: http://www.mapinc.org/media/28
Author: Kristina Torres and Christopher Quinn

DRUG-TEST BILL DRAWS LEGAL HEAT

Drug-test bill draws legal heat Critics say plan is unconstitutional;
backers point to savings, 'tough love'

Georgia's proposal to drug-test parents who seek welfare faces
significant questions about its constitutionality as well as
challenges of how to set up the program, despite support by state
lawmakers and similar efforts in other states.

An Atlanta-based advocacy group has already begun preparing a lawsuit,
as Gov. Nathan Deal faces a decision of whether to sign House Bill 861
or not. The bill received final passage March 29, supported by a solid
Republican majority on the last day of this year's legislative
session. Their approval came despite an ongoing legal challenge in
Florida against a similar measure.

Opponents argue that drug testing of welfare recipients violates the
Fourth Amendment's protection against unreasonable searches.
Supporters believe it will save the state money and promote personal
responsibility. Both sides in Georgia appear willing to fight the
issue out in court.

"Tax dollars should never be spent on and enabling illegal activity,"
said Sen. John Albers, R-Roswell, a sponsor of the bill. Ideally, he
said, it meant "assuring we are giving people a hand up, not just a
handout. Level the playing field for others in the private sector and
civil service jobs who submit to drug tests. Ultimately, help people
with tough love to get clean and become tax-productive members of society."

HB 861 would require parents who apply for the federal Temporary
Assistance for Needy Families program to pay for and pass a drug test
that would cost at least $17. TANF provides temporary financial help
to low-income families with children. Passing the drug test once would
be a condition of eligibility to receive benefits.

Georgia is one of the first states in 2012 to pass a drug-testing law
for those receiving public benefits, though more than 25 are
considering similar legislation in various combinations.

"They range from bills like Georgia's bill calling for wholesale
suspicionless testing to others who are introducing bills to require
testing for a range of services," said Rachel Bloom, a policy
strategist for the American Civil Liberties Union.

Among other mandates in Georgia's bill, the state would have
to:

- - Make at least one parent in a two-parent household
comply.

- - Make a teen parent comply if she does not live with a parent,
legal guardian or other adult caretaker.

- - Assure results are not subject to the state's Open Records law
or part of a criminal investigation (or subject to subpoena) or in
civil action unless consented to.

- - Inform a applicant who tests positive of his or her ability to
retest.

- - Provide a list of substance abuse treatment programs for an
applicant who tests positive.

Another adult who passes a test could accept payments on behalf of a
child of an ineligible parent. The bill does provide for certain
exemptions, including for parents with physical or mental
disabilities. The bill also asks the state to figure out how
applicants can make officials aware they take medically prescribed
drugs that could affect their test.

State officials said it was hard to pinpoint the financial impact of
the bill. During the session, they suggested an impact that could
range from a net cost of about $84,500 to a savings of about $103,000
annually. They also estimated 800 of 19,000 applicants would likely
test positive and be denied TANF.

The bill would become law upon Deal's signature, unless he vetoes the
measure. The $17 testing fee assumes an applicant is on Medicaid. If
not, he or she would have to foot the full bill, which some opposing
lawmakers said could exceed $30.

The National Conference of State Legislatures is tracking proposed
bills including drug testing for unemployment, Medicaid, TANF and food
stamps.

Florida was the first to pass a TANF drug-testing bill in 2011,
prompting the ACLU to sue on behalf of a military veteran and single
father who believed the state was forcing him to pay for and undergo
an unconstitutional search without probable cause to believe he used
drugs.

A federal judge suspended Florida's program until the suit is
resolved. She noted in her opinion that Florida operated a pilot
program before implementing statewide testing that showed 5 percent of
TANF applicants tested positive for drug use. That was lower than the
estimated 8 percent of the general population that used illegal drugs.

The pilot program "undermined the underlying assumption regarding the
prevalence of substance abuse among TANF applicants," wrote U.S.
District Judge Mary S. Scriven.

The case is before the 11th U.S. Circuit Court of Appeals in
Atlanta.

Gerry Weber, an attorney for the Atlanta-based Southern Center for
Human Rights, said the U.S. Supreme Court has allowed suspicionless
testing under rare circumstances - tests for school bus drivers, for
example. Georgia's proposal, however, goes too far, he said. "We
believe this requirement is unconstitutional," Weber said. The center
is preparing a lawsuit, which it would file if Deal signs the bill.

The ACLU also has issues with the bill. "We think Georgia's law is
problematic, as problematic as Florida's," said Jason Williamson, an
ACLU staff attorney.

The steady flow of similar bills across the country shows him that
states are not going to wait until the 11th Circuit weighs in before
trying to pass similar laws, he said.

"These type bills play well politically with the public," Williamson
said, "so even if they are struck down, there is little political risk
for the legislators."

Though Congress authorized drug testing for welfare recipients under
the 1996 Welfare Reform Act, it provided no guidance on how to do so
constitutionally.

Utah tried to jump the constitutional hurdle this year by passing a
law that requires recipients to fill out a questionnaire that may give
indications of the likelihood of drug use before the test. The ACLU's
Bloom said the Utah law also set aside money for treatment, and anyone
who fails the drug test can continue to get benefits while they remain
in treatment.

In committee, Georgia legislators discussed providing drug treatment,
but could not get the votes to approve it.

Brian Robinson, Deal's spokesman, said the bill was under review.
Otherwise, "we cannot comment on legislation that was not an explicit
part of the governor's 2012 agenda," he said.

Georgia has had similar laws struck down by the courts, including a
former mandate to drug-test candidates running for public office.

Albers, however, said lawmakers worked hard to make the bill
constitutional.

"We have the best attorney general in the country," Albers said of the
state's Sam Olens. "He and his staff are qualified and annually
budgeted to respond to any frivolous litigation that may arise. It is
absolutely worth it to change the ideology back to the principles that
made America great."

Drug-testing bill

According to the Georgia proposal that would require parents who apply
for the federal Temporary Assistance for Needy Families program to pay
for and pass a drug test:

- - An applicant who fails one drug test would be ineligible for
benefits for a month.

- - Test positive twice, and an applicant would not qualify for
benefits for three months.

- - For a third or subsequent positive result, the applicant would
be ineligible for one year. Those with three strikes could qualify
earlier than a year if they complete a substance abuse treatment program.

- - In all cases, an applicant would still have to pass a drug
test before being eligible for the program. 
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MAP posted-by: Jo-D