Drug Testing All Welfare Applicants: One Part “Suspicion-less Search”, Two Parts Wasteful Government Spending, and Three Parts Stereotype Based Policy

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“I wonder how much this cost the taxpayers in Tennessee. Didn't work too well in Florida either. Too bad the politicians didn't check the data in other states before implementing this costly policy”.  The previous statement is that of a colleague of mine posted online in a social media site.   My colleague was commenting

on a news item regarding Tennessee’s move to subject welfare applicants to a drug test.  Like Florida, which implemented a similar policy, Tennessee found that an extremely low percentage of welfare applicants/recipients tested positive for drugs.  According to the report, out of 800 applicants in Tennessee, only one person tested positive for drugs.  You may have heard a few years ago that Florida had similar results.  In 2011, only 2% of the applicants for TANF (Temporary Assistance for Needy Families), aka “welfare”, tested positive for drug use.  This is a percentage that is lower than the percentage of Florida’s general population that uses drugs.  Soon after the posting, an acquaintance of my colleague responded with:

The purpose of the program is completely lost on you. Florida's program was only for the "Cash Assistance" portion of SNAP. That means the state will not just hand you cash without knowing you are not on drugs. The requirement being on the books simply deters these inappropriate applications. How much money did the state save not having to even process the thousands or millions of applications simply because those who knew they were going to fail the drug test opted not to apply?

Before continuing, here is some background on the issue and the role of the states from the nonpartisan National Conference of State Legislatures:

States have proposed drug testing of applicants and recipients of public welfare benefits since federal welfare reform in 1996. The federal rules permit drug testing as part of the Temporary Assistance for Needy Families block grant. In recent years, many states have proposed some form of drug testing or screening for applicants.  In 2009, over 20 states proposed legislation that would require drug testing as a condition of eligibility for public assistance programs. In 2010 at least 12 states had similar proposals. None of these proposals became law because most of the legislation was focused on “suspicionless” or “random” drug testing, which is at odds with a 2003 Michigan Court of Appeals case. Marchwinski v. Howard ruled that subjecting every welfare applicant in Michigan to a drug test without reason to believe that drugs were being used, was unconstitutional.

The proposals gained momentum beginning in in the 2011 session. Three states passed legislation in 2011, four states enacted laws in 2012, two states passed legislation in 2013, and two states has passed legislation in 2014, bringing the total number of states to eleven. In 2013, Kansas enacted legislation to require drug testing for applicants and recipients suspected of using controlled substances. In 2012, Utah passed legislation requiring applicants to complete a written questionnaire screening for drug use and Georgia passed legislation requiring drug tests for all applicants for Temporary Assistance for Needy Families. Tennessee approved a bill to require the department to develop a plan for substance abuse testing for all applicants and Oklahoma passed a measure requiring all applicants for TANF to be screened for illegal drug use (Source link).

In Georgia, a bill was passed by the state legislature and signed into law by Governor Deal in 2012 that required all recipients of TANF to not only agree to submit to the drug screening, but also to pay for the test themselves.  This despite the fact that there was no obligation of the state to demonstrate that the applicant had any prior history of drug use.  Thankfully in 2014, the Georgia state legislature revised the law.  Georgia’s law now requires that there be reasonable suspicion of drug use before requiring the test. 

I was a little put off by the reply of my colleague’s acquaintance.  Not because of the counter argument, which is a reasonable opinion on the matter; but by the arrogant and condescending tone of the first line, “the purpose of the program is completely lost on you.”  Therefore, I felt compelled to come to my colleague’s defense, though as a smart and thoughtful man highly educated in Economics, he is perfectly capable of defending himself.   Here is my reply:

It's policy making based on a stereotype. Leads to inefficiency. I don't believe there was any data to support the costly testing to begin with. So if I move to Florida or Tennessee and get a refund on my state taxes in April, should I expect a drug test? No probably not because I need to be on welfare or food stamps as a govt benefit, rather than a tax subsidy so it can be assumed that I'm lazy and on drugs. By the way it's a suspicion less search that is not given to others who get cash benefits from the state like unemployment or subsidies. Which is why, I believe, there is a lawsuit out there challenging one of these state drug test programs. So it's not all that illogical that the purpose of the program is not lost on the many who see this as a stereotype based policy.

My concern with the policy of these states did not originate with my colleague’s posting and the reply of his acquaintance.  Moreover, my concern was not aroused simply by the cost of the program.  What bothers me the most is policy making based on stereotypes and perceptions that often are formed with a lack of evidence, or the necessary amount of data to support the perception.  Unfortunately for many, perception is indeed reality.  And the evidence sighted, is often just anecdotal evidence.  Anecdotal evidence simply notes something that was witnessed or heard about, and does not imply that there are relatively large numbers of that occurrence.  For example, we hear on the news from time to time that a pit bull has mauled a small child.  There is however, no mention of the total pit bull population and the possibly low percentage of cases in which a pit but harms another.   

First, however, let me appeal to those that support the policy because they accept the stereotype in the first place; and, simultaneously appeal to those that do not believe this is a stereotype based policy but support the policy for perhaps a variety of beliefs and concerns.  Requiring all participants of anything to submit to a drug test, whether it be for employment, admission to a school or participation in an activity is an example of a “suspicionless search”.  A “suspicionless search” is a search without “reasonable suspicion” that the individual has committed a crime in the first place.  It is generally accepted that private employers can require random drug tests if that is how they see fit to run their business.  It is a whole other matter when it is the government, which is bound by the Constitution.  Very broadly speaking, the 4^th Amendment of the U.S. Constitution is interpreted as protecting us against searches without reasonable suspicion:  “The right of the people to be secure in their persons, houses, papers, and effects,^[a] against unreasonable searches and seizures, shall not be violated,…”.   Recently, in Board of Education of Pottawatomie County v. Earls, the U.S. Supreme Court ruled that the school system could indeed require drug testing of all students seeking to participate in voluntary extracurricular activities.  Therefore, the courts have not deemed all “suspicionless searches” as unconstitutional.  Note that our rights are not absolute, but that the government may prove a compelling interest or reason in denying a right, and in such cases, the government action would not be in violation of the Constitution.