The ACLU is blowing smoke in its opposition to drug-testing of state employees, legal observers say.
Gov. Rick Scott's order to randomly drug-test workers in agencies that report to his office drew immediate fire from the Florida ACLU, which asserted that such screenings have been ruled "unconstitutional."
"They're wrong," Heritage Foundation legal scholar Cully Stimson said of the ACLU. "They're simply dressing up their policy preference in the form of a legal opinion."
While some judges around the country have drawn a distinction between public-safety workers and government employees at large, court decisions have not been unanimous on the subject.
Florida state agencies already have the legal authority to order pre-hiring drug screenings under the Florida Drug-Free Workplaces Act, and private companies doing contract work for the state must certify that their employees are drug-free.
Scott's directive extending drug-testing is fully within his rights as the state's chief executive, says Robert Knight, executive director of the American Civil Rights Union, a conservative legal advocacy group based in Washington, D.C.
"We see nothing unconstitutional about requiring state employees to undergo drug tests, any more than we would have about a private company doing the same thing.
"The idea that it is unconstitutional to set requirements for employment to include assurances that people aren't on drugs is laughable," Knight added. "Shouldn't workers on the public payroll, entrusted with taxpayer money, undergo standards at least as stringent as those in the private sector?"
The ACLU has argued that drug screenings -- random or otherwise -- constitute an illegal "search" by government, which would violate Fourth Amendment rights.
Knight countered: "It's a sad commentary on our culture that people have bought into the idea of individual autonomy to stay on the payroll while abusing drugs.
"This is not an unreasonable 'search and seizure.'"
Stimson said states and local governments across the country conduct a variety of drug tests on an ongoing basis.
"Florida is not placing an undue or unconstituional burden on employees by requiring them to have a clean urine sample," he said. "From UPS drivers to municipal utility workers, drug-testing is very common and lawful."
Stimson cautioned that there are limits, however.
"There is a possible concern if an agency implemented this in a discriminatory or unequal way. It would certainly be discriminatory if they singled out, for example, people who are a certain age or lived in a certain area."
Florida ACLU Executive Director Howard Simon, quoted in a Sunshine State News story, said, The state of Florida cannot force people to surrender their constitutional rights in order to work for the state. Absent any evidence of illegal drug use, or assigned a safety-sensitive job, people have a right to be left alone.
But Stimson responded, "The fact is, you don't have a legal right to work for the government. This is not denying a legal right."
Scott spokesman Brian Hughes defended the expanded drug-screening policy, saying, "Floridians deserve to know that those in public service, whose salaries are paid with taxpayer dollars, are part of a drug-free workplace.
"Just as it is appropriate to screen private-sector employees, it is also appropriate to screen government employees. Governor Scotts legal advisers have assured him he has solid legal standing to implement this policy, and he believes it is in the interest of Florida taxpayers to have a healthy and productive work force."
Besides agencies under Scott's purview, the state Department of Agriculture and Consumer Services currently conducts drug tests on law-enforcement employees prior to their start with the agency, says department spokesman Sterling Ivey.
"We have policy and procedures in place that allow random drug-testing, especially when a manager or supervisor have reason to believe -- based on employee performance -- a drug test may be necessary," Ivey said.
The attorney general's office, another Cabinet-level department, said it was maintaining its current policy of drug-testing applicants whose professional responsibilities affect public safety. Spokeswoman Jennifer Meale cited an example of law-enforcement officers in the office's Medicaid Fraud Control Unit.
Alexis Lambert, spokeswoman for Chief Financial Officer Jeff Atwater, said that Cabinet-level office was "reviewing the governors order anddetermining how to move forward for the Department of Financial Services."
Separately, the Florida House and Senate are considering bills to require drug-testing of welfare recipients. Scott also supports those measures and has pledged to sign them.
Robin Stublen, a tea party activist from Charlotte County, applauded Scott's call for quarterly, random drug-testing, and detected contradictions in the ACLU position.
"I haven't heard [the ACLU] criticizing the proposed drug database that would track law-abiding citizens who go to doctors. Why isn't the ACLU standing up for their 'rights'?"
As for workers, he suggests that if state-mandated drug tests are truly a constitutional "infringement" on government workers, then civil libertarians should vociferously oppose increasingly widespread narcotics screenings in the private sector.
Stublen likes Scott's drug-test initiative so much that he would extend it to elected officials, as well.
"I'd like to see all legislators tested, because nobody in their right mind could come up with some of the laws we have today," he said, only partly in jest.
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Contact Kenric Ward at kward@sunshinestatenews.com or at (772) 801-5341.
