By Andy Hoover, Legislative Director, ACLU of Pennsylvania
One of our ongoing challenges at the ACLU is explaining the subtle, and sometimes not-so-subtle, nuances of constitutional law to the public. Take government-run drug testing.
In the run up to passing the state budget, a state House committee passed legislation that would require applicants for public assistance to submit to a questionnaire for the purpose of flagging them for drug testing. Those who are flagged would then be required to take a drug test. One positive test would lead the person to a referral for drug treatment while maintaining their assistance. A second positive test would ban the person from assistance for a year.
We dealt with a similar bill with similar arguments last session that required school teachers to be drug tested. That bill passed the House but was not considered in the state Senate. This issue really is the worst combination of legislative sausage: Legislators can score cheap political points due to the ignorance of the public and the public’s hostility to poor people on assistance while making terrible law.
Here’s the most common argument for a bill like this: “Private employers drug test their employees. Why not for welfare?” Another argument we’ve heard is that there are government workers who are drug tested–police officers, highway workers, the military–so people who get public assistance should, too. I don’t expect the general public to understand the twists and turns of the Fourth Amendment. But legislators who write the law have an obligation to know better.
Let’s review the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Essentially, if you have an expectation of privacy, the government cannot search you without suspicion, i.e. probable cause, that you’ve committed a crime and without an order (a warrant) from a court of law.
To drug test someone, the government would have to secure a biological sample- like urine or blood- from the person. We feel quite strongly that a person has an expectation of privacy in her biological samples. That is not a wild-eyed, radical notion.
The arguments of supporters are not comparable to drug testing for assistance. First, a private employer is not required to follow the Fourth Amendment. (Drug testing by private employers gets into another argument about privacy in the workplace and the foolishness of the failed War on Drugs. But that’s a discussion for another time.)
Second, the government can drug test police officers and highway workers as a condition of employment only because they fall into the narrow public safety exception to the Fourth Amendment. The police and highway workers drive vehicles as part of their work, and the police are armed. Applicants for assistance and public school teachers don’t fall into that exception.
The purpose of the questionnaire in House Bill 1380 is to establish suspicion to justify the drug test, thus avoiding the Fourth Amendment problem. But states that have tried the applicant screening approach have found that so few of the people who are flagged actually test positive that it really cannot be argued that the screening even creates suspicion.
Meanwhile, the creators of one of the screening questionnaires that states are using has said that their questionnaire was intended as a therapeutic device, not to create suspicion to deny people employment or public assistance.
The legislation before the state House does a real disservice to people in poverty and to constitutional law. Our hope is that leaders in the General Assembly will resist the urge to score political points and let this one die quietly on the vine.
Andy Hoover is the legislative director of the American Civil Liberties Union of Pennsylvania. His mobile phone is decorated with an ACLU sticker that says, “Get a warrant.”