Rick Scott

Gov. Rick Scott struck out again Monday when it comes to testing the state employees for drugs.

The U.S. Supreme Court rejected Scott’s petition to review a federal appeals court’s finding that his blanket plan to test up to 85,000 state government employees for drugs is unconstitutional as written.

Scott asked the high court to review the opinion by the U.S. Court of Appeals for the Eleventh Circuit rejecting his controversial plan, one of the early priorities in his administration.

The Supreme Court had no comment in rejecting the appeal.

The Eleventh Circuit suspended mandatory, suspicionless drug testing of public employees until U.S. District Judge Ursula Ungaro determines which workers must be tested and who can decline under the Fourth Amendment.

The Supreme Court’s refusal to hear the appeal follows a similar decision in late December by a federal judge in Orlando who struck down a state law requiring applicants for welfare benefits to undergo mandatory drug testing.

Scott, a Republican, is also appealing that case.

“State employees should have the right to work in a safe and drug-free environment just like in any other business,” Scott said in a statement Monday. “The merits of this case are still being deliberated in the U.S. Southern District Court, and we will continue to fight to make sure all state employees, who are paid by taxpayer funds, can work in a safe, drug free workplace.”

The American Civil Liberties Union of Florida challenged Scott’s policy change. The civil liberties organization represents the American Federation of State, County and Municipal Employees Council 79, which covers about 34,000 state employees who Scott originally tapped for random drug testing.

Agarwal said negotiations with state officials have whittled the number of union-covered state jobs still at issue for drug testing to 23,500. Drug testing for those workers is before Ungaro. The focus of testing is on first responders and other essential employees, but there has been wide disagreement on where to draw the line.

The Eleventh Circuit didn’t mince words last May in rejecting Scott’s premise when it rejected wholesale drug testing.

“The state has fallen far short of justifying the breathtaking scope of the executive order,” Judge Stanley Marcus wrote for unanimous three-judge panel.

Shalini Agarwal, the ACLU staff attorney handling the challenge for the union, said there is some hope that Scott would abandon his pursuit of the controversial policy.

“We are hopeful this will be some signal to the governor that it’s time to give up this fruitless quest to test his employees’ bodily fluids and move on to more important tasks,” Agarwal said.

Studies have shown about 1 percent of state workers will test positive for drug use, far below the state and national average, she said.

Mind Boggling

“The facts don’t bear out what he is trying to prove. I think he has some stereotype or assumption that folks working for government are using drugs,” Agarwal said. “Honestly, it boggles the mind. There seems to be far better ways to use state funds.”

Critics of Scott’s relentless push for drug testing of state workers and welfare recipients have said one motivation may have been his ties to Solantic Corp., a Jacksonville-based operator of 32 urgent care centers that provide extensive drug testing.

Scott, who co-founded Solantic, sold his stake in the company in April 2011 after critics asserted he had a conflict of interest.

A public records request seeking how much the state has been spending on the drug-testing court cases has been filed by the ACLU.

Agarwal noted the litigation assigned to Ungaro already has scheduled extensive discovery that will take an estimated 10 months and cost the state even more money in outside attorney fees.

Scott is up for re-election in November. He is expected to face either Democrat Charlie Crist, the former governor who has recently switched parties, or former state Sen. Nan Rich.

“It’s been three years of hard-core litigation, and there is no sign of it stopping,” Agarwal said.