On The Front Lines
Rutherford Institute Challenges Constitutionality of Proposed Bill to Require Welfare Recipients in Virginia to Submit to Drug Testing
RICHMOND, Va. — Citing concerns about the constitutionality of a bill which would require low-income individuals in need of public assistance to submit to a “screening” for substance abuse conducted by government officials, John W. Whitehead, president of The Rutherford Institute, is cautioning members of the Virginia Senate Finance Committee that Senate Bill 6 must either be amended to ensure that screening does not entail physical invasions of privacy or rejected altogether. As Whitehead notes, “The Rutherford Institute finds no legitimate justification for the erosion of Fourth Amendment rights for the poor that would be occasioned by physically invasive screening methods.”
The Rutherford Institute’s letter to the Virginia Senate Finance Committee is available here.
“I know of no precedent that establishes an individual’s socio-economic status or income level as a justification for the significant, physical invasion of privacy involved in a drug test of bodily fluids,” said Whitehead. “The very idea that a person’s financial need diminishes his or her basic civil rights should be repugnant to a society in which all persons, rich and poor, are seen as equals before the law.”
If adopted, Senate Bill 6 (S.B. 6) would require that public assistance applicants and recipients be subjected to a substance abuse screening and assessment. Specifically, the legislation requires local departments of social services to screen each VIEW (Virginia Initiative for Employment not Welfare) program participant to determine whether probable cause exists to believe the participant is engaged in the use of illegal substances. The bill provides that when a screening indicates reasonable cause to believe a participant is using illegal substances, the local department of social services shall require a formal substance abuse assessment of the participant, which may include drug testing. Any person who fails or refuses to participate in a screening or assessment without good cause or who tests positive for the use of illegal substances shall be ineligible to receive financial assistance through the government’s TANF (Temporary Assistance for Needy Families) program for a period of one year, unless he enters into and complies with the requirements of a drug treatment program. An individual has one opportunity during the subsequent 12-month period to comply with the screening, assessment, or treatment requirements and be reinstated to eligibility for TANF benefits.
However, as The Rutherford Institute’s letter makes clear, S.B. 6 may constitute an infringement of the Fourth Amendment’s guarantee against unreasonable searches and seizures if the screening is done without any basis for individualized suspicion and involves procedures that intrude upon an individual’s physical privacy, such as urine testing. Moreover, as Whitehead notes, “because Senate Bill 6 does not specify the type of initial screening that is mandated, we are concerned that it might be interpreted to allow methods that would transgress the boundaries established under Fourth Amendment jurisprudence.” Institute attorneys are particularly leery of the need for the legislation in light of the fact that government officials already have the power to drug test individuals receiving public assistance based on behavior, credible reports, and other such criteria that establish individual suspicion rather than a blanket testing requirement.
