Luis W. LEBRON, Individually and as Class Representative, Plaintiff-Appellee, v. SECRETARY, FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Defendant-Appellant.
No. 11-15258.
United States Court of Appeals, Eleventh Circuit.
Feb. 26, 2013.
710 F.3d 1202
Jesse Panuccio, Florida Dept. of Economic Opportunity, Marion Drew Parker, Florida Dept. of Children & Families, Lisa Marie Raleigh, Jason Vail, Atty. Gen.‘s Office, Tallahassee, FL, for Defendant-Appellant.
Andrew Lynn Brasher, Atty. Gen.‘s Office, Montgomery, AL, Edith E. Sheeks, Advocacy Center for Persons With Disabilities, Inc., Tallahassee, FL, Richard B. Rosenthal, The Law Offices of Richard B. Rosenthal, PA, Miami, FL, Robert Craig Buschel, Buschel Gibbons Daragjati, PL, Fort Lauderdale, FL, David T. Goldberg, Donahue Goldberg, LLP, New York City, for State of Alabama, State of Kansas, State of Michigan, State of Oklahoma, Disability Rights Florida, Center for Law and Social Policy et al., Florida‘s Children First, Inc., American Academy of Addiction Psychiatry, National Advocates for Pregnant Women, Amici Curiae.
Before BARKETT and JORDAN, Circuit Judges, and HALL,* District Judge.
The Secretary of the Florida Department of Children and Families (“State“) appeals from the district court‘s order enjoining the State of Florida from requiring Luis W. Lebron to submit to a suspicionless drug test pursuant to
Lebron is an honorably discharged veteran of the United States Navy, college student, single unmarried father and sole caretaker of his young child. Lebron resides with and also cares for his disabled mother, who subsists on Social Security Disability benefits. In July 2011, Lebron applied for financial assistance benefits for himself and his son through Florida‘s Temporary Assistance for Needy Families program (“TANF“), which, if he were eligible, would have provided him with a maximum of $241 per month to assist in the support of himself and his child.
TANF is a block grant program in which the federal government provides states with funds to assist needy families with short term financial assistance and with finding employment. The State, through the Department of Children and Families (“DCF“), has been administering the TANF program since its creation as part of the Personal Responsibility and Work Opportunity Reconciliation Act in 1996. Lebron met all of the program‘s eligibility requirements, but DCF ultimately denied his application because Lebron refused to submit to Florida‘s newly-enacted, mandatory drug testing, which is a final condition of eligibility for TANF benefits in Florida.
Florida‘s mandatory drug-testing requirement for all TANF applicants was enacted in May 2011. See
In addition to the mandatory drug test, applicants are required to sign a release acknowledging their consent to be tested.
I. Standard of Review
Although we review the district court‘s grant of a preliminary injunction for an abuse of discretion, underlying questions of law are reviewed de novo, and the district court‘s factual determinations cannot be disturbed unless clearly erroneous, see United States v. Alabama, 691 F.3d 1269, 1281 (11th Cir.2012). To grant a preliminary injunction, the district court must determine that the moving party has established: “(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction is issued; (3) the threatened injury to the moving party outweighs whatever damage the proposed injunction might cause the non-moving party; and (4) if issued, the injunction would not be adverse to the public interest.” Keeton v. Anderson-Wiley, 664 F.3d 865, 868 (11th Cir.2011). Here, the State challenges only the district court‘s conclusion that Lebron has shown a “substantial likelihood of success on the merits” of his claim that Florida‘s mandatory suspicionless drug testing of TANF applicants violates his Fourth Amendment right against unreasonable searches. Accordingly, in reviewing the district court‘s grant of the preliminary injunction, we do not resolve the merits of the constitutional claim, but instead address whether the district court abused its discretion in concluding that Lebron is substantially likely to succeed in establishing that Florida‘s drug testing regime for TANF applicants violates his Fourth Amendment rights.
II. Discussion
The Fourth Amendment protects the rights of individuals “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Ordinarily, to be reasonable, a search must be based on individualized suspicion of wrongdoing. See e.g., Chandler, 520 U.S. at 308, 117 S.Ct. 1295 (“[The Fourth Amendment‘s] restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion.“). In most cases, this standard is met only when a search “is accomplished pursuant to a judicial warrant issued upon probable cause.” Skinner, 489 U.S. at 619, 109 S.Ct. 1402.
However, the Supreme Court has upheld as reasonable searches without a showing of individualized suspicion in certain very limited and exceptional cir
In the specific context of government-mandated drug testing programs, the Supreme Court has exempted such programs from the Fourth Amendment‘s warrant and probable cause requirement only where such testing “fit[s] within the closely guarded category of constitutionally permissible suspicionless searches.” Chandler, 520 U.S. at 309, 117 S.Ct. 1295. To fall within this “closely guarded category,” the Court has made clear that its “precedents establish that the proffered special need for drug testing must be substantial.” Id. at 318, 117 S.Ct. 1295. The Court has recognized two concerns that present such “exceptional circumstances,” which are sufficiently “substantial” to qualify as special needs meriting an exemption to the Fourth Amendment‘s warrant and probable cause requirement: the specific risk to public safety by employees engaged in inherently dangerous jobs and the protection of children entrusted to the public school system‘s care and tutelage. In contrast, this “closely guarded category” does
With reference to ensuring public safety in well-defined circumstances, the Court, in Skinner and Von Raab, recognized a special need where “[railroad] employees are engaged in safety-sensitive tasks,” Skinner, 489 U.S. at 620, 109 S.Ct. 1402, and where the “sensitive positions” of certain United States Customs employees present “extraordinary safety and national security hazards,” Von Raab, 489 U.S. at 666, 674, 109 S.Ct. 1384.
In Skinner, the Court permitted mandatory drug testing of railroad employees involved in train accidents under a program that had been implemented in response to “evidence indicating that on-the-job intoxication was a significant problem in the railroad industry” and that alcohol or drug use was a factor in several accidents that resulted in numerous fatalities, other injuries and property damage. 489 U.S. at 607, 109 S.Ct. 1402. Given the “safety-sensitive tasks” that the railroad employees engaged in, the Court determined that the government presented a special need of “ensuring the safety of the traveling public and of the employees themselves” which justified a policy prohibiting the use of alcohol or drugs while on duty. Id. at 620-21, 109 S.Ct. 1402. Having found that the government established “special needs,” the Court went on to weigh the government‘s need to “monitor compliance with the[] restrictions” of on-the-job drug and alcohol use against the privacy interests of the railroad employees. Id. at 621, 109 S.Ct. 1402. The Court explained that the government had a compelling interest in drug testing because “[e]mployees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences .... [They] can cause great human loss before any signs of impairment become noticeable to supervisors or others.” Id. at 628, 109 S.Ct. 1402. On the other hand, railroad employees’ “expectations of privacy ... are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees.” Id. at 627, 109 S.Ct. 1402.
In Von Raab, the Court likewise sustained a United States Customs Service policy that made drug tests a condition of working in positions directly involving drug interdiction or requiring the employee to carry a firearm. 489 U.S. at 660-61, 109 S.Ct. 1384. The Court pointed out that the Customs Service, in performing
Having found a substantial special need, the Court, in the subsequent weighing of the competing government and individual interests, determined that affected Customs’ employees, like the railroad workers in Skinner, have a diminished expectation of privacy with respect to the intrusions occasioned by the tests administered. “Unlike most private citizens or government employees in general, employees involved in drug interdiction [and those who carry firearms] reasonably should expect effective inquiry into their fitness and probity .... [T]hese employees cannot reasonably expect to keep from the Service personal information that bears directly on their fitness.” Id. at 672, 109 S.Ct. 1402.
Other than the certain well-defined public safety concerns, the “closely guarded category” includes suspicionless drug testing only in one other context—the public school setting. In Vernonia and Earls, the Court upheld as reasonable under the Fourth Amendment school district policies that provided for random drug testing of public school children who participated in the school systems’ athletics programs and non-athletic extracurricular activities, respectively. The Court noted that “‘special needs’ inhere in the public school context,” Earls, 536 U.S. at 829, 122 S.Ct. 2559, given the need for “swift and informal disciplinary procedures” and “the substantial need of teachers and administrators for freedom to maintain order in the schools.” Vernonia, 515 U.S. at 653, 115 S.Ct. 2386 (quoting T.L.O., 469 U.S. at 340-41, 105 S.Ct. 733). The Court also explained that schools have an important concern with deterring drug use by schoolchildren “for whom it has undertaken a special responsibility of care and direction.” Vernonia, 515 U.S. at 662, 115 S.Ct. 2386; Earls, 536 U.S. at 834, 122 S.Ct. 2559.
In Vernonia, in permitting the drug testing of student athletes, the Court emphasized the findings that “athletes were the leaders of the drug culture” in this school district, which was fueling a “rebellion” that led to an increase in disciplinary problems that “had reached epidemic proportions.” 515 U.S. at 649, 663, 115 S.Ct. 2386. The deleterious effects of drug use
In both Vernonia and Earls, the government‘s special need in the unique context of the public school setting was found to outweigh the individual privacy rights of the students—rights which the Court concluded are “limited in a public school environment where the State is responsible for maintaining discipline, health, and safety.” Earls, 536 U.S. at 830, 122 S.Ct. 2559; see also Vernonia, 515 U.S. at 656, 115 S.Ct. 2386 (“Fourth Amendment rights ... are different in public schools than elsewhere[.]“). Although the Court in both Vernonia and Earls had before it evidence of a genuine drug problem among the covered students, the Court cautioned that “[t]he most significant element ... is that the Policy was undertaken in furtherance of the government‘s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.” Vernonia, 515 U.S. at 665, 115 S.Ct. 2386.
Thus in the context of government mandated drug testing, when the Court has permitted the suspension of the Fourth Amendment protections requiring individualized suspicion it has done so only in the “closely guarded categor[ies]” enumerated above where the asserted special need addresses a substantial concern for public safety or where the state is fulfilling its well-recognized role as the guardian and tutor of public school children. That is not to say that there cannot be other governmental needs that are sufficiently substantial to qualify as a special need for Fourth Amendment purposes. Moreover, in subsequently weighing the competing government and individual interests, the Court has noted that the affected individuals have a diminished expectation of privacy given the nature of their employment or status as a public school student.
Conversely, in Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997), the Supreme Court rejected the state of Georgia‘s argument that it had a special need that supported the mandatory drug testing of all candidates for state public office. Georgia argued that unlawful drug use by elected officials “draws into question an official‘s judgment and integrity; jeopardizes the discharge of public functions[;] ... and undermines public confidence and trust in elected officials.” Chandler, 520 U.S. at 318, 117 S.Ct. 1295. After distinguishing Skinner, Von Raab and Vernonia, the Court reiterated that “[o]ur precedents establish that the proffered special need for drug testing must be substantial—important enough to override the individual‘s acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment‘s normal requirement of individualized suspicion.” Id. In concluding that Georgia‘s purported special needs were not substantial, the Court noted that Georgia failed to put forth “any indication of a concrete danger demanding
For reasons similar to those expressed by the Court in Chandler, we cannot say that the district court abused its discretion in determining that the State failed to establish a substantial special need for mandatory drug testing of TANF applicants. Here, the State argues that there is a “special need” to test TANF applicants because TANF funds should not be used for drugs as drug use undermines the program‘s goals of moving applicants into employment and promoting child welfare and family stability. But this argument, which assumes drug use, begs the question. The question is not whether drug use is detrimental to the goals of the TANF program, which it might be. Instead, the only pertinent inquiry is whether there is a substantial special need for mandatory, suspicionless drug testing of TANF recipients when there is no immediate or direct threat to public safety, when those being searched are not directly involved in the frontlines of drug interdiction, when there is no public school setting where the government has a responsibility for the care and tutelage of its young students, or when there are no dire consequences or grave risk of imminent physical harm as a result of waiting to obtain a warrant if a TANF recipient, or anyone else for that matter, is suspected of violating the law. We conclude that, on this record, the answer to that question of whether there is a substantial special need for mandatory suspicionless drug testing is “no.”
As the district court found, the State failed to offer any factual support or to present any empirical evidence of a “concrete danger” of illegal drug use within Florida‘s TANF population. See id. at 319, 117 S.Ct. 1295. The evidence in this record does not suggest that the population of TANF recipients engages in illegal drug use or that they misappropriate government funds for drugs at the expense of their own and their children‘s basic subsistence. The State has presented no evidence that simply because an applicant for TANF benefits is having financial problems, he is also drug addicted or prone to fraudulent and neglectful behavior.6
There is nothing so special or immediate about the government‘s interest in ensuring that TANF recipients are drug free so as to warrant suspension of the Fourth Amendment. The only known and shared characteristic of the individuals who would be subjected to Florida‘s mandatory drug testing program is that they are financially needy families with children. Yet, there is nothing inherent to the condition of being impoverished that supports the conclusion that there is a “concrete danger” that impoverished individuals are prone to drug use or that should drug use occur, that the lives of TANF recipients are “fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” Skinner, 489 U.S. at 628, 109 S.Ct. 1402; see also Von Raab, 489 U.S. at 670, 109 S.Ct. 1384.8 Thus, the State‘s argument that it has a special need to ensure that the goals of the TANF program are not jeopardized by the
Moreover none of the State‘s asserted concerns will be ameliorated by drug testing. While we recognize that Florida has a significant interest in promoting child welfare, the State has presented no evidence that the general welfare of the children in the TANF program is at greater risk absent its drug testing. Nor has the State shown that Florida‘s children will be better protected because of mandatory drug testing of TANF applicants. As the district court noted, even if a parent tests positive for drugs and is precluded from receiving TANF funds, the TANF program has no impact on the familial and custodial relationships of its would-be participants. Again, there is no evidence that there is greater drug use and child abuse within the population of economically disadvantaged families who participate in the TANF program. However, even if child neglect or abuse, for whatever reasons, impacts the lives of families in the TANF program, Florida has a separate, well-established and comprehensive statutory, administrative and judicial scheme codified in
In short, we cannot say that the district court erred in determining that the State failed to meet its burden of showing a substantial special need permitting the suspension of the Fourth Amendment‘s protections. See e.g., Ferguson, 532 U.S. at 81, 121 S.Ct. 1281 (“In Chandler, however, we did not simply accept the State‘s invocation of a ‘special need.’ Instead, we carried out a ‘close review’ of the scheme at issue before concluding that the need in question was not ‘special,’ as that term has been defined in our cases.“). The simple fact of seeking public assistance does not deprive a TANF applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy. Because we agree with the district court that the State failed to meet its burden in establishing a special need for its mandatory, suspicionless drug testing of TANF applicants, that ends our inquiry into the testing regime‘s validity for Fourth Amendment purposes, and thus, we need not weigh any competing individual and governmental interests. See T.L.O., 469 U.S. at 351, 105 S.Ct. 733 (Blackmun, J., concurring in judgment) (explaining that the balancing of government interests against the individual privacy interests takes place only if the government establishes a special need for drug testing).
We turn then to the State‘s alternative argument that even if we find no substantial special need supporting Florida‘s mandatory drug testing of TANF recipients, the drug testing program is still constitutionally valid because it is based on consent. As noted, under Florida‘s program, an applicant is required to sign an acknowledgment that he or she consents
We cannot say that the district court abused its discretion in concluding that the “State‘s exaction of consent” failed to render the otherwise unconstitutional drug testing valid for Fourth Amendment purposes. We disagree with the State that the mandatory “consent,” which Florida‘s drug-testing statute makes a condition to the receipt of benefits, is of any constitutional significance. Although a “search conducted pursuant to a valid consent is constitutionally permissible,” see Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), a valid consent means one which is “in fact, freely and voluntarily given,” see Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The State‘s assertion that the “consent” that is provided by TANF applicants renders the drug testing reasonable for Fourth Amendment purposes is belied by Supreme Court precedent, which has invalidated searches premised on consent where it has been shown that consent “was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.” See Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (holding as invalid a search of defendant‘s home which “was demanded under color of office” even
By informing TANF applicants that the drug test is one of many conditions to receiving this government-issued benefit and that the applicant‘s refusal to give consent means that he is ineligible to receive TANF assistance, the State conveys a message that it has the unfettered lawful authority to require such drug testing period. But it does not and can only do so upon a showing of individualized suspicion or a special need beyond the need for normal law enforcement, both of which are absent in Florida‘s drug testing program. Accordingly, a TANF applicant‘s “consent” to the testing by signing a form waiving his constitutional rights amounts to nothing more than “submission to authority rather than ... an understanding and intentional waiver of a constitutional right.” Johnson, 333 U.S. at 13, 68 S.Ct. 367.
We note that even though each of the drug testing regimes in Skinner, Von Raab, Vernonia, Chandler, and Earls required the affected employees, students or political office candidates to “consent” to the drug testing in order to maintain employment, participate in school activities or gain access to the ballot, the Supreme Court has never held that such drug testing regimes were constitutionally reasonable because of consent. Instead, every time that the Supreme Court has been asked to address the validity of a government mandated drug testing policy, it has applied the same special needs analysis and reasonableness balancing, whether upholding or rejecting those policies. Simply put, we have no reason to conclude that the constitutional validity of a mandated drug testing regime is satisfied by the fact that a state requires the affected population to “consent” to the testing in order to gain access or retain a desired benefit.
Moreover, the mandated “consent” the State relies on here, which is not freely and voluntarily given, runs afoul of the Supreme Court‘s long-standing admonition that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The Court reiterated in a subsequent case that “[u]nder the well-settled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right ... in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to [the right].” Dolan v. City of Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994).
The Supreme Court recognized this principle, as long as a century ago in Bailey v. Alabama, 219 U.S. 219, 245, 31 S.Ct. 145, 55 L.Ed. 191 (1911), where it explained that if a State‘s procedures, in their natural operation, transgress a substantive constitutional right, those procedures are unconstitutional. Although the Court in Bailey recognized that states generally possess the power to prescribe procedures affecting their own laws, the
Here, because the state of Florida cannot drug test TANF applicants absent individualized suspicion or a showing of a governmental substantial special need that outweighs the applicant‘s privacy rights, it cannot do so indirectly by conditioning the receipt of this government benefit on the applicant‘s forced waiver of his Fourth Amendment right. Indeed, in Speiser, the Court did not say that the taxpayer could avoid an unconstitutional infringement on his First Amendment rights simply by choosing not to seek the tax exemption. Nor did the Court say in Speiser that those taxpayers who acquiesced and signed the attestation in order to receive the tax exemption had properly waived their First Amendment right against compelled speech thereby rendering the government‘s procedures constitutionally acceptable. Instead in Bailey, Speiser and Perry, the Court was clear that where an individual‘s federal constitutional rights are at stake, the state cannot accomplish indirectly that which it has been constitutionally prohibited from doing directly. Those same principles are equally applicable here. The State cannot mandate “consent” to drug testing, which essentially requires a TANF applicant to choose between exercising his Fourth Amendment right against unreasonable searches at the expense of life-sustaining financial assistance for his family or, on the other hand, abandoning his right against unreasonable government searches in order to access desperately needed financial assistance, without unconstitutionally burdening a TANF applicant‘s Fourth Amendment right to be free from unreasonable searches. Accordingly, we cannot say that the district court abused its discretion in rejecting the State‘s “consent” argument as a violation of the unconstitutional conditions doctrine. See e.g., Thomas v. Review Bd. of Ind. Emp‘t Sec. Div., 450 U.S. 707, 716, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (explaining in an unemployment benefits case that “a person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program“); Bourgeois v. Peters, 387 F.3d 1303, 1324, 1325 (11th Cir.2004) (“Our circuit has roundly condemned the use of unconstitutional conditions .... [T]he very purpose of the unconstitutional conditions doctrine is to prevent the government from subtly pressuring citizens, whether purposely or inadvertently, into surrendering their rights.“).
III. Conclusion
Because we conclude that the State has failed to establish a substantial special need to support its mandatory suspicionless drug testing of TANF recipients, the district court did not abuse its discretion in granting the preliminary injunction enjoining the State from enforcing
AFFIRMED.
JORDAN, Circuit Judge, concurring:
I concur in Judge Barkett‘s opinion for the court, and write to emphasize certain points about this case.
1. We are not making any definitive legal pronouncements about the ultimate constitutionality of
2. Because of the limited nature of our review, our look at the “substantial likelihood of success” prong is for abuse of discretion, and is not de novo. There is language in some of our cases indicating that we take a plenary look at legal issues in reviewing the grant or denial of preliminary injunctive relief, but the better view (and the one consistent with Supreme Court precedent) is that a deferential standard of review applies when we are dealing with the district court‘s assessment of probability of success on a limited record. See, e.g., Ashcroft v. A.C.L.U., 542 U.S. 656, 666, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (concluding that district court‘s determination as to likelihood of success “was not an abuse of discretion“); LSSi Data Corp. v. Comcast Phone LLC, 696 F.3d 1114, 1120 (11th Cir.2012) (“The first question before us is whether the district court abused its discretion in concluding that LSSI has shown a ‘substantial likelihood of success’ on the merits of its claim.“); BellSouth Telecommunications,
3. Insofar as burdens are concerned, this is not the typical preliminary injunction case. It is undisputed that a drug test is a search under the Fourth Amendment, and that the government generally has the burden of justifying a warrantless search. See, e.g., United States v. Bachner, 706 F.2d 1121, 1126 (11th Cir.1983) (“If the movant establishes an expectation of privacy and that the search and seizure took place without a search warrant, then the burden shifts to the state to establish that an exception to the search warrant requirement was applicable in the subject case and that the search and seizure was, in fact, a reasonable one.“) (citing Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Thus, as the Supreme Court has explained, the government has the burden of establishing a “special need” for a warrantless and suspicionless drug testing requirement. See Chandler v. Miller, 520 U.S. 305, 318, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). See also United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951) (“the burden is on those seeking the exemption [to the warrant requirement] to show the need for it“). This means that the state, and not Mr. Lebron, had the burden below with respect to the constitutionality of
4. I am not persuaded by the only other appellate decision addressing the constitutionality of a warrantless and suspicionless drug testing program for recipients of government aid—the Sixth Circuit‘s now-vacated panel decision in Marchwinski v. Howard, 309 F.3d 330, 333-37 (6th Cir. 2002) (reversing preliminary injunction entered by district court and indicating that Michigan pilot program requiring warrantless and suspicionless drug testing of welfare applicants was likely constitutional), vacated on grant of rehearing en banc, 319 F.3d 258 (6th Cir.2003), decision of district court affirmed by equally divided vote, 60 Fed.Appx. 601 (6th Cir.2003) (en banc). First, the Sixth Circuit panel—contrary to the teaching of cases like Ashcroft and Gonzales—apparently placed the burden on the plaintiffs to demonstrate the unconstitutionality of the state‘s warrantless and suspicionless drug testing program. See 309 F.3d at 336-37. Second, the Sixth Circuit panel relied too heavily on “special needs” cases arising in the school setting. See id. at 334-35. Those cases, it seems to me, are distinguishable because they involved two critical aspects not present here—the lessened expectation of privacy held by minor students, and the state‘s custodial and tutelary role in education. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (“Central, in our view, to the present case is the fact that the
5. In my view the doctrine of unconstitutional conditions is somewhat incoherent, and some of the cases decided under it are difficult to reconcile. See generally Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1416 (1989) (“As applied ... the doctrine of unconstitutional conditions is riven with inconsistencies“). Compare, e.g., Lyng v. Automobile Workers, 485 U.S. 360, 368, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988) (denying food stamps to workers on strike does not infringe on First Amendment rights) with, e.g., Sherbert v. Verner, 374 U.S. 398, 404-05, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (denying unemployment benefits to a Seventh Day Adventist who rejected suitable employment opportunities because she would not work on Saturdays violates the First Amendment). Nevertheless, the district court did not abuse its discretion in following, at least preliminarily, those decisions which teach that the government cannot condition the receipt of, or entitlement to, a benefit on the surrender of a constitutional right. See, e.g., Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests ....“); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir.2004) (“The doctrine of unconstitutional conditions prohibits terminating benefits, though not classified as entitlements, if the termination is based on motivations that other constitutional provisions proscribe.“) (citation omitted). Although the state argues that any tension in the law has been clarified by Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), that argument is unconvincing because Rust explicitly distinguished the “unconstitutional conditions” cases and did not purport to overrule Perry and its progeny. See id. at 196, 111 S.Ct. 1759 (“Petitioners’ reliance on [Perry] is unavailing, however, because here the Government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized.“). This case, unlike Rust, deals directly with a denial of government benefits.
6. Finally, I am am skeptical about the state‘s insistence at oral argument that the Fourth Amendment permits the warrantless and suspicionless drug testing of all TANF applicants even if the evidence shows, conclusively and beyond any doubt, that there is 0% drug use in the TANF population. The state‘s rationale—that such drug testing is permissible because the TANF program seeks to “move people from welfare to work“—proves too much. Every expenditure of state dollars, taxpayers hope, is for the purpose of achieving a desirable social goal. But that does not mean that a state is entitled to require warrantless and suspicionless drug testing of all recipients of state funds (e.g., college students receiving Bright Futures scholar