An oft-quoted saying holds that the definition of insanity is doing the same thing over and over and expecting different results.   Drug testing of public benefits applicants has been repeatedly found illegal, ineffective and even unconstitutional–yet lawmakers keep coming back with such proposals.

Illegal

Georgia and Wisconsin have both proposed drug testing applicants for nutritional assistance under the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps).  However, as the U.S. Department of Agriculture has made clear, this is not permitted under federal law.

Ineffective

Under the federal Temporary Assistance for Needy Families (TANF) block grant, states have the authority to establish eligibility rules and have long included screening for substance abuse in the assessments they conduct as part of engaging participants in employment services.  But in recent years an increasing number of states have begun to incorporate drug screening and testing into the program’s application process. Applicants are first screened for any suspicious behaviors that may indicate substance abuse, and may be referred to take a drug test based on the results. These state laws have identified very few applicants using drugs; however, the laws have added burden and complexity to the application process and increased administrative costs.

• From July 1 to August 1, 2014, 84 Mississippians who applied for TANF were required as part of the state’s application process to respond to a screening questionnaire  with subtle questions designed to identify people with a high likelihood of being substance abusers.   Of these, 38 were referred for drug testing based on the findings from the screening, and only 2 tested positive for drugs.
• Tennessee’s drug testing law went into effect on July 1, 2014 and requires each TANF applicant to respond to three questions about any recent drug usage. If an applicant answers “yes” to any of the questions, he or she is referred to drug testing. Of the 812 applicants subjected to the law’s screening provision after one month of implementation, 802 ”passed” the screening and were not subject to being tested for drugs; 4 refused to participate in the questionnaire and were immediately disqualified; 5 who were subject to the drug test passed; and only 1 tested positive for drugs.
• Kansas also implemented its drug testing requirement on July 1, 2014. Four months of results show that 5 applicants refused to be tested, 20 applicants followed through with testing and only 4 tested positive.

Unconstitutional

After two years of legal battles, earlier this month the 11th Circuit Court of Appeals in Atlanta ruled that Florida’s law mandating drug testing of all TANF applicants was unconstitutional.  The law, which allowed suspicion-less drug testing of all applicants for the state’s TANF program, was held as a violation of the Fourth Amendment for its unreasonable search of applicants without evidence of “a more prevalent, unique or different drug problem among TANF applicants than in the general population.” All lower courts had found the same position.  Courts had previously found a Michigan program implementing suspicion-less testing of welfare applicants unconstitutional on the same grounds. No court has yet taken up the question of the constitutionality of incorporating screening for drug use, followed by testing, into the application process for public benefits.

In spite of this history, states continue to pursue these policies.  In 2014, eighteen states proposed legislation requiring some form of drug screening of public assistance applicants. Most recently, on the same day that the Florida court ruling on testing was announced, the Michigan state legislature passed a pair of bills—HR 4118 in the House and SB 275 in the Senate—which will enact suspicion-based drug testing of applicants for temporary cash assistance under its Family Independence program.

However, the evidence from this year’s round of testing and legal cases describe a poorly fit policy based in stereotypical notions of rampant substance abuse among the poor. Such policy only serves as a barrier to low-income children and families who may be disqualified from receiving provisional assistance. The costs incurred by states to test applicants for drugs could be invested in stronger support systems for those who may battle with substance abuse but are willing to engage in work-related activities and trainings.  States should adopt a new year’s resolution of learning from the evidence and no longer pursuing these ineffective and often illegal policies.