Marchwinski v. Family Independence Agency

Michigan stands alone in requiring its residents to provide a drug-free urine sample in order to continue receiving the state's assistance in achieving "family independence."

Because abuse of alcohol and other drugs, often in conjunction with mental health problems, can interfere with employment, most states have created substance abuse treatment and counseling -- and every state except Michigan has determined that these treatment programs will work better without coerced drug testing.

As the ACLU's lawsuit asserts, Michigan's welfare recipients have done nothing to lower their expectation of privacy. They are no different than virtually every member of the general population who chooses to make use of some form of governmental benefits or subsidies, including tax credits, medical insurance, and scholarships. 

The drug-testing regime was scheduled to go into effect on October 1, 1999. The three sites chosen for a pilot program were Alpena County and Presque Isle Counties, Barrien County and a designated area of Western Wayne County.

Historical Background

Michigan's drug testing program was authorized under the Personal Responsibility and Work Opportunity Act of 1996 — Congress' much-publicized federal welfare reform law. The law authorized states to impose drug testing on welfare recipients — an invitation no state has taken until now — and imposed strict time limits on the period any individual can receive benefits, prompting states to devise new ways to move recipients from welfare into employment.

Ignoring the less restrictive approaches of other states, Michigan enacted MCLA 400.57l, a law authorizing "substance abuse testing as a condition of eligibility for family independence assistance." The law directs the Family Independence Agency to "implement a pilot program of substance abuse testing as a condition of family independence assistance eligibility in at least three counties, including random substance abuse testing."

Although the legislature called for "substance abuse testing," the most commonly abused and most lethal drugs alcohol and tobacco will not be a part of the testing program. 

Consequences of a Positive Drug Test

Refusal to agree to random drug testing will result in denial or termination of FIA income support. The state may also terminate medical insurance, food stamps, and support for pregnant women or nursing mothers.

Parents terminated from FIA assistance are twice as likely to lose custody of their children. Rates of homeless, malnutrition, and unemployment all increase drastically upon termination of FIA assistance.

FIA participants who submit to drug testing also risk losing this same vital assistance. According to Michigan's law, "failure to comply" with a substance abuse treatment plan "shall be penalized in the same manner as a work-first program violation" a penalty that includes "reduction" or "termination" of assistance under FIA programs. 

State officials and the legislature have not made clear what actions constitute "failure to comply" with a treatment program. If compliance with drug treatment means that a person must become entirely drug-free within a specified period of time and remain drug-free for the duration of FIA assistance, then FIA participants with a diagnosable medical condition addiction will be excluded from FIA programs unless they are successfully cured of this condition on a schedule and by a treatment modality dictated by a government agency. Such an approach makes a mockery of sound medical practice.

Barriers to Employment

There is no rational basis for singling out welfare recipients for drug testing. Michigan's FIA participants do not fit the description of any category of individuals previously subjected to governmental drug testing. They do not perform dangerous tasks like operating a nuclear power plant, driving a train, or carrying a firearm, and they are not entrusted with sensitive governmental operations like drug interdiction or handling classified information.

Numerous studies identify barriers to employment of much greater significance than use of illegal drugs: low skills; lack of child care; lack of housing; depression and other forms of mental illness; and alcoholism. Most states address these issues with training, counseling and appropriate support, and all states address these issues with less restrictive means than now employed by the defendants. Abuse of illegal drugs, however, affects welfare recipients in roughly the same measure as the general population, and rarely stands alone as a barrier to employment. 

States have more effective options for assisting FIA recipients in addressing substance abuse. These include the provision of income assistance and voluntary, comprehensive mental health treatment, not by threatening to deny assistance unless the recipient agree to a drug test. Research demonstrates that supplemental income helps drug and alcohol users decrease or cease their use of harmful substances by bringing stability to their lives. Substance use and abuse is also frequently connected to depression or other mental health problems, thus making mental health services vital in overcoming addiction to alcohol or other drugs. 

Welfare Drug Testing in Other States

After a brief use of drug testing in parts of Oregon, officials specifically rejected drug testing because welfare recipients became so angry and suspicious that drug treatment became more difficult, because the testing did nothing to address the far more significant problem of alcoholism, and because non-invasive screening devices were effective in identifying individuals in need of treatment.

Florida and Louisiana have considered such programs too, but Florida shelved its plans after threat of an ACLU lawsuit, and the Louisiana legislature has not yet appropriated the funds needed to implement a program.

ACLU Fact Sheet #2: What the Experts Say

The rationale for drug testing is based on myth, not fact. According to a federal study, "[t]he percentage of welfare recipients using, abusing, or dependent on alcohol or drugs [is] relatively small and consistent with the general US population and those not receiving welfare benefits." B. Grant and D. Dawson, "Alcohol and Drug Use, Abuse, and Dependence among Welfare Recipients," 86 American Journal of Public Health 1450 (Oct. 1996). 

Other studies indicate a somewhat greater rate of overall drug consumption among welfare recipients -- mainly use of marijuana but indistinguishable rates of drug abuse, especially for drugs other than marijuana. 

Citing a new federal study that found that 70 percent of drug users are employed full time, the nation's Drug Czar, Barry McCaffrey pointed out: "The typical drug abuser is not poor and unemployed. He or she can be a co-worker, a husband or wife, a parent." "Worker Drug Use and Workplace Policies and Programs: Results from the National Household Survey on Drug Abuse" (Sept. 8, 1999). 

In any event, drug use is not a primary barrier to employment for Michigan's welfare recipients. A recent University of Michigan study reveals that FIA participants "have unusually high levels of some barriers to work, such as physical and mental health problems, domestic violence, and lack of transportation, but relatively low levels of other barriers, such as drug or alcohol dependence." S. Danzinger, et al., "Barriers to the Employment of Welfare Recipients," 3-4 (July 1999). 

Michigan has failed to ensure that comprehensive drug treatment programs, including residential care programs with child care facilities, exist to ensure that those identified with substance abuse difficulties can obtain adequate drug treatment. Without adequate treatment, recipients with substance abuse problems cannot be moved from assistance to employment. Mandated drug testing has nowhere to go. For example, although it is recognized that treatment programs must be equipped to provide access to quality childcare services, none of the available drug treatment programs in the three pilot areas, to the best of our knowledge, are equipped with childcare services. 

As one expert has recognized: "The lack of childcare services is repeatedly cited in drug abuse surveys as an inhibiting factor that affects not only a woman's decision to enter treatment but also her retention in a program (National Institute on Drug Abuse, 1979)." M. Blasinsky, "Childcare Support Services for Female Clients in Treatment," in Treatment Services for Drug Dependent Women (U.S. Department of Health and Human Services, Vol. 1, 1981), p. 408.

ACLU Fact Sheet #3: Urine Testing Cannot Reliably Identify Drug Abuse/Addiction

Urine testing is performed by immunoassay, a methodology subject to several sources of error. The most common disadvantage associated with the test is the production of "false positives" (incorrectly detecting the presence of chemical metabolites, or residues, where none are present). 

This can occur due to the nature of the technology, which relies on the detection of color changes in the urine after reaction to drug metabolites. When non-illegal chemicals create color changes similar to the change created by metabolites of prohibited substances, some individuals tested may be incorrectly identified as drug users. Examples of such chemicals are ibuprofen, which can react as a false positive for marijuana, and the metabolites of poppy seeds, which can react as a false positive for narcotics. 

In addition, drug testing is notoriously over and under-inclusive. For example, testing positive for the presence of marijuana does not provide proof or even strong evidence of drug addiction. And conversely, an abusive pattern of cocaine binges will not register on a drug test unless drug use occurred within 24-48 hours before collection of a urine sample. 

ACLU Fact Sheet #4: Cases Relating to Suspicionless Drug Testing Of Welfare Recipients

Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989)
The Supreme Court held that a suspicionless drug-testing program designed to test railroad employees after they were involved in accidents was constitutional under the Fourth Amendment, given such factors as the government's compelling interest in regulating the conduct of railroad employees who were engaged in safety-sensitive tasks and capable of causing "great human loss before any signs of impairment become noticeable to supervisors or others."

National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)
The Supreme Court held that suspicionless drug-testing of U.S. Customs Service employees applying for promotion to positions involving interdiction of illegal drugs or requiring them to carry firearms was reasonable under the Fourth Amendment, given the extraordinary safety and national security hazards that would attend the sensitive positions in question.

Vernonia School District v. Acton, 515 U.S. 646 (1995)
Applying Skinner and Von Raab, a divided Supreme Court upheld as constitutional a school district policy requiring students to consent to random drug testing as a condition for participation in interscholastic athletics. Balancing the students' expectations of privacy and the intrusive nature of the test against the government's interest in drug-free schools, the Court held that the drug policy did not violate the Fourth Amendment given such factors as: the athletes' relatively low expectation of privacy (e.g. due to the requirements of communal undress and preseason physical exams); the fact that the athletes were leaders in the school's drug culture; and that the tests were "directed more narrowly to drug use by athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high."

Chandler v. Miller, 520 U.S. 305 (1997)
The Supreme Court found unconstitutional a Georgia Statute requiring candidates for state offices to certify that they had tested negative in a drug urinalysis. The Court said that the law, introduced to demonstrate the state's commitment to challenging drug abuse, "diminishes personal privacy for a symbol's sake," and that Georgia failed to show a special need substantial enough to override the candidates' privacy interests.