Florida Gov. Rick Scott (R) has suspended his March executive order mandating random drug testing of state employees. He quietly sent a memo to agency heads on June 10 announcing the decision, but the move wasn’t publicly exposed until the ACLU of Florida posted the memo on its web site last week.
Scott issued the executive order March 22, and the ACLU of Florida responded by filing a lawsuit alleging the order violated the Fourth Amendment’s search and seizure provisions. The ACLU acted on behalf of the American Federation of State, County, and Municipal Employees (AFSCME), which represents some 50,000 state workers and 200,000 city and county workers in the Sunshine State.
Scott’s memo bravely says he is “confident that the drug testing called for in the order is consistent with the Constitution,” but acknowledges that “while the case is pending, it not does not make sense to move forward with the logistical issues involved in instituting the new policy.”
Now, Scott wants to implement random drug testing only within the Department of Corrections. That would allow for the case to continue to move forward and be resolved, the memo said.
The ACLU of Florida has clearly and consistently said suspicionless drug testing of state employees is unconstitutional. It reacted to the governor’s memo with vigor and pleasure.
“This is nothing less than a massive and embarrassing retreat on the part of Governor Scott,” said Florida ACLU director Howard Simon. “Despite his continuing rhetoric, he must now realize that Floridians won’t simply roll over but will stand up and defend our constitutional rights.”
“We are pleased that this new order has delayed subjecting thousands of state employees to demeaning, invasive and illegal tests of their bodily fluids. But it does not change our constitutional challenge,” said ACLU of Florida legal director Randall Marshall. “Any government search without suspicion of drug use or not directly related to public safety is a violation of privacy protections and we will vigorously move ahead with our challenge.”
“Our suit was very clear about the reasons why the governor’s order was unconstitutional,” said ACLU of Florida cooperating counsel Peter Walsh. “And in direct response to our suit, the governor has retreated. The state already lost a previous case of random drug testing for Florida workers and the state simply cannot legally do what the governor ordered. His reconsideration and retraction of the heart of his proposal proves what we said all along — his order is deeply, fatally flawed.”
But Scott still seems not to understand that the Fourth Amendment provides protection against state intrusions of privacy that are unavailable to employees of private companies. “The private sector does this all the time,” Scott told the Palm Beach Post as he tried to explain why he thought he would prevail. “I mean, our taxpayers expect our state employees to be productive. This is the right thing, and we’re going forward.”
Scott has also campaigned for and signed off on drug testing Florida welfare recipients and applicants. The ACLU of Florida has not filed suit to block that yet, but a second lawsuit aimed at the governor’s fondness for making Floridians produce urine samples for the state is in the works. And the taxpayers of the state of Florida are going to end up paying to defend the indefensible.