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Jewish World Review Dec. 28, 1999 /19 Teves, 5760

Nat Hentoff

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Drug tests that tear families apart -- THE 1996 FEDERAL "welfare reform" law allowed states to test welfare recipients for drug use. So far, only Michigan has taken advantage of that provision.

Accordingly, in October, welfare applicants have been required to take a urine test in three parts of the state, including Detroit. There need not be even a suspicion that a particular applicant uses drugs.

Anyone who tests positive must enroll in a "substance abuse treatment plan." Refusal to submit to the testing or to enter treatment results in families with children under 18 losing monthly cash payments. This income support is called a "family independence benefit" by the state.

Michigan welfare officials claim this program will help prepare applicants for work and keep families together.

Adults who need income assistance but have no children do not have to be tested because they are not eligible for welfare in Michigan -- as decided by Republican governor John Engler.

On Sept. 30, the American Civil Liberties Union of Michigan filed a lawsuit on behalf of all Michigan welfare applicants, claiming that "mandatory drug testing of a broad swath of the adult population has never in our nation's history been enacted by a state government, much less approved by a court." Actually, Louisiana did pass such a law in 1997, but decided instead to require applicants to answer a questionnaire about drug use.

Courts, including the Supreme Court, have approved mandatory testing of narrow sectors of the population --- such as railroad engineers, who hold dangerous jobs, or student athletes. But not yet all welfare applicants.

Among the named plaintiffs are Tanya Marchwinski and Terri Konieczny, both single mothers eligible for welfare assistance. According to the ACLU, Marchwinski has a kidney disorder and a degenerative disc disease that requires medication.

She does have a job, paying $5.25 an hour, but without welfare assistance, she says, she would not be able to pay for necessary food and shelter for her children.

On Nov. 10, with the Christmas season approaching, U.S. District Court judge Victoria Roberts provisionally ended Michigan's drug testing of welfare applicants by granting a temporary restraining order on the ground that requiring such tests -- without individualized reasonable suspicion -- is "likely unconstitutional. While it is clearly in the public interest," she says, "to have all members of society drug-free and working... these goals cannot be pursued at the expense of the Constitution."

Judge Roberts noted that, in any case, the state had not disclosed any "special need" for this dragnet testing -- especially after the state revealed the results of the five weeks of testing before it was stopped. Of 268 people tested, only 21 -- 8 percent -- tested positive for drugs. All but three had used marijuana. The figure of 8 percent, the ACLU says, is consistent with drug use in the general population.

Judge Roberts has scheduled additional hearings on whether she should issue a permanent injunction, and, if so, whether to grant the ACLU's request that this become a class-action suit, covering all welfare applicants in the state.

In its court papers, the Michigan ACLU emphasized that "each of the plaintiffs are stigmatized and discriminated against" because Michigan "does not require random drug testing as a condition for receiving other state financial benefits, such as those provided to students, corporations and taxpayers." Michigan's drug-testing program, says the ACLU, "brands recipients as innately inferior to other recipients of state financial assistance."

In the 1970 Goldberg vs. Kelly case, Justice William Brennan held, for the first time, that it was unconstitutional to cut off welfare payments without first giving the recipients notice and a hearing. The core of his decision relates to the Michigan case:

"From its founding," Brennan wrote, "the Nation's basic commitment has been to foster the dignity and well being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty."

Quoting the prologue of the Constitution, Brennan continued: "Public assistance, then, is not mere charity, but a means to `promote the General Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.'"

But, as Kary Moss of the ACLU charges, Michigan is nonetheless "saying that if you want money for food and shelter, you have to give up the Fourth Amendment rights that others have."

JWR contributor Nat Hentoff is a First Ammendment authority and author of numerous books. Send your comments to him by clicking here.


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