May 7, 1998
Mr. Kevin M. FitzGerald, Director Division of Social Services 325 North Salisbury Street Raleigh, North Carolina 27603
Re: Advisory Opinion: Suspicionless Drug Testing; Work First Applicants/Recipients
Dear Mr. FitzGerald:
You have asked whether mandatory substance abuse screening (i.e., asking questions in order to identify abusers) can be legally conducted for all applicants seeking Work First Program benefits. You have also asked whether it is likely, in light of decisions by the courts, that mandatory drug tests administered as a condition of eligibility absent a reasonable suspicion would be found unconstitutional.
In summary, while it appears likely that mandatory drug screening would withstand court challenge, mandatory drug testing may be vulnerable to judicial invalidation unless the test is based on a reasonable suspicion of illicit use.
First, although mandatory substance abuse screening has been attacked in other states, it is our opinion that the majority of courts will approve the process. Nevertheless, the process of asking a series of "control" questions should not be abusive or weighted for or against certain groups or it may be vulnerable to legal challenge.
Second, mandatory drug testing of welfare recipients without suspicion is untested in the courts; however, in our opinion, drug testing for all applicants, even on a random basis, is unlikely to pass constitutional muster. The U.S. Supreme Court considers suspicionless drug testing to be a search and seizure and an invasion of individual privacy. The Court has made some exceptions based on a showing of "special need" by the government to test a certain class of people, e.g., airline pilots, customs personnel and the military. The question the Court asks in these cases is whether the government’s need to test is "important enough to override the individual’s acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment’s normal requirement of individualized suspicion." Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). We are not optimistic that the State or individual counties can show a vital need to conduct mandatory drug tests of welfare applicants sufficient to satisfy the courts unless there is a reasonable basis for suspicion that the applicants being tested are substance abusers. If a county is intent on having mandatory drug testing on a random basis or for all welfare applicants prior to substance abuse screening and without reasonable suspicion, a serious constitutional challenge could be raised in court.
However, once a recipient is identified as a substance abuser, or once there is a reasonable suspicion an applicant/recipient is a substance abuser, mandatory drug testing may be legally warranted.
We trust this fully answers your questions on this matter. Please do not hesitate to contact us if we can be of any further assistance to you.
signed by:
Ann Reed Senior Deputy Attorney General
Robert J. Blum
Special Deputy Attorney General