News From Terre Haute, Indiana

April 12, 2013

Drug test mandate heads to Pence, but is it constitutional?

Maureen Hayden
CNHI

INDIANAPOLIS — Both chambers of the Indiana General Assembly have passed a bill that ties drug testing to welfare benefits, but if signed into law, the next debate may be on the question: Is it constitutional?

The bill’s sponsors say they’ve carefully crafted the language to avoid the kind of legal challenges that have stalled similar drug-testing programs in other states.

But opponents say there’s no getting around the Fourth Amendment protection against unreasonable searches and predict it’s headed for court.

“I think it’s unconstitutional and going to be challenged,” said Ken Falk, legal director of the American Civil Liberties Union chapter in Indiana. “And we’d certainly be willing to make that challenge.”

In February, a federal appeals court ruled against Florida’s testing of welfare applicants for drug use in a case brought by the ACLU.

The ruling didn’t strike down Florida’s drug-testing requirement directly. But the appeals court held that the state failed to show a direct threat to public safety that would justify drug testing without suspicion of wrongdoing.

Florida’s governor has vowed to take the case to the U.S. Supreme Court.

The Florida drug-testing program has been on a court-ordered hold since 2011, as the legal fight plays out. At least four other states have adopted laws that allow drug testing of welfare applicants suspected of drug use.

In Indiana, the backers of House Bill 1483 hope to avoid a scenario similar to Florida.  

They argue that the Indiana legislation is different than the Florida law. In Florida, anyone who applies for the federal cash-assistance welfare program, Temporary Assistance for Needy Families, is eligible to be drug-tested.

The Indiana legislation would require all TANF applicants in Indiana to take a 65-question written test used nationally to screen people for potential drug abuse. Only test-takers who show a high propensity to abuse drugs would be part of a pool randomly required to take a urine drug test. Those who fail would be steered into a drug treatment program.  

“We’re not making everyone subject to drug testing, only those who show a high propensity for substance abuse disorder,” said Republican Sen. Randy Head, a Logansport lawyer who sponsored the bill in the Senate.  

But Falk said the 65-question written test in the Indiana bill is not enough to overcome the hurdlescourts have imposed on mandatory drug testing.

“Failing a (written) screening test isn’t proof of anything,” Falk said. “It’s an invasive search without probable cause.”

Both Head and the bill’s author, Republican Rep. Jud McMillin, a Brookville lawyer, defended the bill during debates on the legislation, assuring lawmakers that it would stand up to a constitutional challenge.

But the Senate Minority Leader Tim Lanane, an Anderson lawyer, disagreed. “This is a constitutional lawyer’s dream,” Lanane said.

McMillin and Head have argued that the intent of the bill isn’t punitive, because the TANF program is supposed to be only for people who are actively looking for work or going to school to get training to get a job.

“What we’re trying to do is give somebody a hand up instead of a handout,” McMillin said.

TANFs recipient who test positive for drugs would be allowed to keep their benefits but would have to enter a treatment program. The treatment program could be a free program, like Narcotics Anonymous, Head said.

“There are plenty of NA programs in church basements across the state,” Head said.

The Indiana bill also requires those TANF recipients who’ve been steered into a drug treatment program to stay clean or risk losing their benefits.

It requires them to submit to follow-up urine drug tests and cuts off their benefits if they fail repeated drug tests. It also includes a provision that allows them to get their TANF benefits back in the future, once they start to test clean.

In arguing for the bill, Head noted a federal law, the 1996 Welfare Reform Act, that authorized, but didn’t require, states to impose mandatory drug testing as a prerequisite to receiving federal welfare assistance administered by the states.

But few states have acted to do so until recently. Michigan was the first to do so, but the state’s mandatory drug testing program was struck down as unconstitutional in 2003 in a challenge brought by the ACLU. A federal appeals court ruled the mandatory drug tests violated welfare recipients’ Fourth Amendment’s protection against unreasonable searches.

Since Florida adopted its drug-testing program in 2011, seven more states have passed similar laws tying drug screening to eligibility for public assistance.



Maureen Hayden covers the Statehouse for CNHI newspapers, the Triubne-Star’s parent company. She can be reached at maureen.hayden@indianamediagroup.com.