Last March, around the same time he was resisting electronic monitoring of painkiller prescriptions as a wasteful invasion of privacy, Florida Gov. Rick Scott signed an order (PDF) mandating random drug testing of all executive branch employees. This week the ACLU of Florida challenged the order in federal court, noting that it is clearly unconstitutional under the relevant precedents. In two 1989 cases, the Supreme Court ruled that government-mandated urinalysis, although a "search" governed by the Fourth Amendment, can be justified without "particularized suspicion" in special circumstances. Specifically, the Court upheld testing of railroad employees who are involved in accidents or violate safety rules and customs agents who apply for positions that require them to carry guns or interdict drugs. In two subsequent cases, the Court upheld random drug testing of high school students who participate in sports or other extracurricular activities, again based on a "special need": preventing drug use by minors. By contrast, in 1997 the Court rejected a Georgia law requiring all candidates for public office to undergo drug testing, ruling that it "does not fit within the closely guarded category of constitutionally permissible suspicionless searches."
Based on these precedents, U.S. District Judge Robert Hinkle in 2004 overturned a Florida drug testing policy that was much narrower than Scott's, applying to employees of the state Department of Juvenile Justice (DJJ). Hinkle began his opinion (PDF) by noting that "DJJ now virtually concedes the policy cannot constitutionally be applied to at least some DJJ employees." He noted that Roderick Wenzel, the DJJ employee who brought the case after he was fired for refusing to surrender his bodily fluids, was "a long-term strategic planner who worked in an office, did not interact with juveniles in DJJ's care, and did not access confidential information on juveniles." Hinkle concluded that the department had failed to show "a concrete risk of real harm" that would justify suspicionless testing of employees like Wenzel.
"I'm not sure if Governor Scott does not know that the policy he ordered has already been declared unconstitutional or if he just doesn't care," says ACLU of Florida Executive Director Howard Simon. "But I do know that the state of Florida cannot force people to surrender their constitutional rights in order to work for the state."
On the same day that the ACLU filed its suit, Scott signed a bill that requires welfare recipients to pass drug tests, the only law of its kind in the country. The ACLU, which noted that a similar law in Michigan was overturned on Fourth Amendment grounds in 2003, plans to challenge that policy as well.
The ACLU complaint is here (PDF).
[via the Drug War Chronicle]