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In a ruling that could have repercussions around the country, a three-judge panel of the 6th U.S. Circuit Court of Appeals has upheld the right of Michigan to require drug testing for welfare recipients and to deny benefits to those who test positive. The appeals panel reversed a federal district judge who halted a pilot drug-testing program in 1999 after welfare recipients and the American Civil Liberties Union (ACLU) of Michigan maintained that the testing was unconstitutional. “Michigan is the only state in the country that does suspicionless drug testing,” asserted Robert Sedler, a law professor at Wayne State University in Detroit who argued the case for the ACLU. Sedler said he planned to petition quickly for a rehearing before the full appeals court in Cincinnati because “we believe the decision is contrary to U.S. Supreme Court rulings. There is no reason to test people just because they are poor and on welfare.” A ‘LEGITIMATE NEED’? But the appeals court panel found that the testing program was based on a legitimate need to ensure that public money does not go for illegal uses and to protect children of drug abusers on welfare. The panel found that the mandatory testing was neither an invasion of privacy nor an infringement of civil rights. Marchwinski v. Howard, No. 00-2115 (Oct. 18, 2002). Martin Klau, an assistant Michigan attorney general who argued the case for the Family Independence Agency, which handles welfare cases, said that drug testing “is probably the best way to deal with problems like substance abuse.” He added that “welfare is now geared to get people to work, while in the past the program was aimed at providing sustenance … . The state needs to break down barriers to self-sufficiency like drug abuse.” Sedler said he expects the ruling will have a national impact. “Certainly there are politicians in other states who rail against welfare. This [decision] will encourage those in other states to take similar action,” he said. Michigan is believed to be the first state to require drug testing under federal guidelines in 1996 aimed at cutting the welfare rolls. The state claims it has cut the number of people receiving welfare by 90 percent. The Michigan pilot program was being tested on welfare recipients in Detroit and four other communities around the state when it was halted in November 1999 after just five weeks by U.S. District Court Judge Victoria Roberts of the Eastern District of Michigan. Under the program, 20 percent of welfare recipients were to be tested randomly every six months. The recipients took the urine tests privately and results were not reported to the police. Those who tested positive had to undergo drug treatment or risk losing benefits. Sedler said he would appeal on two points. First, he maintained that welfare recipients were being singled out even though the district court had found that drug use among welfare recipients was about the same as among average citizens. He also said that the appeals court relied too heavily on a U.S. Supreme Court decision that allowed drug testing of all high school students and athletes involved in extracurricular activities. But Klau, arguing for the state, said tests of welfare recipients showed more than 10 percent had traces of illegal drugs in their systems. At the same time, he said, drug tests given to prospective state employees found positives for drug use in slightly more than 1 percent.

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