Welfare Drug Testing Case Re-Heard by Appeals Court

March 26, 2003

The challenge to Michigan’s welfare drug testing law will be reviewed again, this time by all active judges of the U.S. Court of Appeals, when oral argument is heard on Wednesday, March 26. The law has not been enforced since 2000 when a U.S. district judge ruled that random drug testing violated welfare recipients' privacy rights.

“Being poor is not a crime in this country and poor parents should not be required to choose between providing for their children and relinquishing their constitutional rights,” said Kary Moss, executive director of the Michigan ACLU and an attorney in the case.

The ACLU filed a class-action lawsuit in September 1999 on behalf of all Michigan welfare recipients who would be denied income support and other benefits under the state's "Family Independence Assistance" program for families with dependent children if they refused to submit to random drug testing or failed to comply with a mandatory "substance abuse treatment plan."    

The ACLU argued that the State’s pilot program violates the Fourth Amendment's requirement that people not be subjected to "searches and seizures" without probable cause or suspicion that illegal activity has occurred. Federal District Court Judge Victoria Roberts agreed with the ACLU, but the State appealed to the Sixth Circuit and Judge Roberts’ ruling was reversed. The decision to re-hear the case in an en banc (or by all Court of Appeals judges) hearing is unusual and not often done.

In the five weeks that the program was in effect, the drug tests were positive in only 8% of the cases, a percentage that is consistent with drug use in the general population. Of 268 people tested, only 21 tested positive for drugs and all by 3 were for marijuana.

WHAT: Oral Argument in Marchwinski v. Howard, Docket No. 00-2115. 
WHERE: U.S. Court of Appeals, Potter Stewart U.S. Courthouse, 100 E. Fifth Street, Cincinnati, Ohio
WHEN: March 26 at 1:30 p.m. 
WHO: Graham Boyd, director of the National ACLU Drug Policy Litigation Project, arguing the case for the Michigan ACLU.