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Rick Scott and Unions Both Declare Victory in Drug Test Ruling

May 28, 2013 - 6:00pm

Both Rick Scott and state employee union members are declaring victory after a federal appeals court ruled Wednesday on the Florida governor's controversial efforts to subject some 85,000 state employees, and countless more job applicants, to suspicionless drug testing.

In a unanimous decision, the U.S. Court of Appeals for the 11th Circuit overturned a federal trial court's ruling last year that declared Scott's entire policy to be an unconstitutional violation of Fourth Amendment protections against unlawful searches and seizures.

In 2011, Scott issued an executive order mandating random drug testing of every worker employed by a state agency under his control, and drug testing of all future job applicants to those agencies. Some 85,000 Floridians are employed by an agency under Scott's administration.

The three-judge panel agreed with the lower court that it was unconstitutional for Scott to insist on randomly testingallof those employees, but said there could be good reason to testmostof them, in particular those occupants of, and applicants for, "safety- sensitive positions -- e.g., law enforcement personnel who carry firearms as well as employees tasked with operating heavy machinery or large vehicles.

About 60 percent of those working for an agency directly under Scott's supervision are in safety-sensitive positions.

As to those safety-sensitive employees, [Scott's policy] would most likely be constitutional, and, therefore, the district courts order cannot stand as written, Judge Marcus Stanley wrote for the court.

But the court also found that Scott's policy was too broad for it to completely pass constitutional muster.

[T]he [U.S.] Supreme Court has approved of suspicionless drug testing only when the government has demonstrated heightened interests, such as a serious threat to public safety, that apply narrowly to specific job categories of employees, Stanley continued. [T]he state must meet its burden of demonstrating important special needs on a job-category-by-category basis.

The suit had been brought by the American Federation of State, County and Municipal Employees (AFSCME) and the American Civil Liberties Union (ACLU), and both organizations hailed Wednesday's ruling.

With todays decision, the 11th Circuit becomes the latest court to reject what it calls a testing policy of unprecedented scope by Governor Scott, ACLU attorney Shalini Goel Agarwal, who was lead counsel in the case, said in a statement. It would be foolish of the governor to continue pushing to implement his across-the-board drug testing regime when the court clearly states that, under the Fourth Amendment, many of the individuals covered by the executive order cannot be subjected to invasive and humiliating searches just because they are government employees.

Attorney Alma Gonzalez, special counsel for AFSCME Council 79, didn't mince her words.

Governor Scotts relentless quest for urine testing has once again been rejected by a federal court, she said in a statement. No matter how much Governor Scott wants people to believe otherwise, the fact remains that people dont have to give up their privacy, dignity, and constitutional protections in order to serve our communities. Public employees should not be subject to arbitrary testing without probable cause or consent.

Scott, for his part, declared himself the primary victor in the case.

Many Floridians are required to take drug tests in their workplace and it is only right for state workers paid with taxpayer funds to be required to do the same, he said in a statement released by his office. The court did the right thing today by reversing the injunction on our executive order for drug testing state employees. We will go forward in arguing this case in both the appellate and trial courts in order to ensure that taxpayer funds are safeguarded from misuse by ensuring our state workforce is drug free.

Today's ruling returns the case to the U.S. District Court for the Southern District of Florida, for that court to decide which state employees may be forced to undergo suspicionless testing and which may not.

Reach Eric Giunta at or at (954) 235-9116.

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