               Case: 11-15258       Date Filed: 02/26/2013       Page: 1 of 38

                                                                                 [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                              ________________________

                                    No. 11-15258
                              ________________________

                      D.C. Docket No. 6:11-cv-01473-MSS-DAB


LUIS W. LEBRON,
Individually and as Class Representative,

                                                                  Plaintiff–Appellee,
                                            versus

SECRETARY, FLORIDA DEPARTMENT OF
CHILDREN AND FAMILIES,

                                                                  Defendant–Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________
                                 (February 26, 2013)

Before BARKETT and JORDAN, Circuit Judges, and HALL, * District Judge.

BARKETT, Circuit Judge:

       * Honorable James Randal Hall, United States District Judge for the Southern District of
Georgia, sitting by designation.
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         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 Section 414.0652

of the Florida Statutes, as a condition for receipt of government-provided monetary

assistance for which he was otherwise qualified.

         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

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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 Fla. Stat. § 414.0652 (2011). Under the statute, when

an individual applies, he is notified that he will be required to submit to and pay for

drug testing as a condition of receiving TANF benefits. Id. § 414.0652(2)(a). If

the applicant submits to the drug testing and tests negative, the cost of the test will

be reimbursed to the applicant through a one-time increase in his TANF benefits.

Id. If the applicant tests positive for controlled substances, he is ineligible to

receive TANF benefits for one year, id. § 414.0652(1)(b), but can reapply in six

months if he completes a substance abuse treatment program and passes another

drug test, both at his own expense, id. § 414.0652(1)(j). Although an adult

applicant who fails the drug test is ineligible for TANF benefits, the applicant’s

dependent child may still receive TANF benefits so long as the adult designates an

appropriate protective payee to receive the child’s benefits. Id. § 414.0652(3).

However, the individual who wishes to serve as the protective payee must also

submit to and pass mandatory drug testing to receive benefits for the child, even

though he is not requesting any TANF benefits for himself. Id. § 414.0652(3)(c).

      In addition to the mandatory drug test, applicants are required to sign a

release acknowledging their consent to be tested. Id. § 414.0652(2)(e). At the

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time Lebron applied for TANF benefits, he was notified of Florida’s mandatory

drug testing requirement and that he was required to sign the release before DCF

would allow him to proceed with the application process. Lebron signed the

release, completed the application process and was found eligible for TANF

benefits. However, he did not submit to the drug test, but instead filed this lawsuit

seeking to enjoin the enforcement of Florida’s mandatory suspicionless drug

testing as a violation of his and all other TANF applicants’ Fourth Amendment

right to be free from unreasonable searches and seizures. The district court granted

a preliminary injunction against the enforcement of the drug testing statute against

Lebron and the State agreed to discontinue its drug testing regime as to all TANF

applicants until this litigation is fully resolved.

                                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

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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.” U.S. Const. amend. IV. It is undisputed and well-established that

government-mandated drug testing is a “search” within the meaning of the Fourth

Amendment. See e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 828 (2002); Chandler

v. Miller, 520 U.S. 305, 313 (1997); Vernonia Sch. Dist. 47J v. Acton, 515 U.S.

646, 652 (1995); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665

(1989); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 614–15 (1989). Thus,

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the question before us is whether Florida’s mandatory, suspicionless drug-testing

of all TANF applicants is a constitutionally reasonable search under the Fourth

Amendment. See Skinner, 489 U.S. at 618–19 (“To hold that the Fourth

Amendment is applicable to . . . drug and alcohol testing . . . is only to begin the

inquiry into the standards governing such intrusions.”).

      Ordinarily, to be reasonable, a search must be based on individualized

suspicion of wrongdoing. See e.g., Chandler, 520 U.S. at 308 (“[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.

      However, the Supreme Court has upheld as reasonable searches without a

showing of individualized suspicion in certain very limited and exceptional

circumstances. See New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun,

J., concurring in judgment) (explaining that a court may substitute its own

reasonableness balancing for that of the Fourth Amendment’s warrant and

probable cause requirement only in those “exceptional circumstances” where

special needs have been established). But to establish these limited and

exceptional circumstances that justify the suspension of Fourth Amendment

protections, the Supreme Court has required the government to make a threshold

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showing that there are “special needs, beyond the normal need for law

enforcement, [which] make the warrant and probable-cause requirement

impracticable.” Skinner, 489 U.S. at 619 (internal quotation omitted). 1 Not only

must the government identify the special needs that make the warrant and

probable-cause requirement impracticable but it must establish that those special

needs are “substantial.” See Chandler, 520 U.S at 318 (“Our precedents establish

that the proffered special need for drug testing must be substantial.”). Only if the

government is able to make a showing of substantial special needs will the court

thereafter “undertake a context-specific inquiry, examining closely the competing

private and public interests advanced by the parties,” to determine the

reasonableness of the search. Id. at 314; see also T.L.O., 469 U.S. at 351



       1
           The origins of the Court’s “special needs” test has been summed up as follows:

           The term “special needs” first appeared in Justice Blackmun’s opinion
           concurring in the judgment in New Jersey v. T.L.O., 469 U.S. 325, 351
           (1985). In his concurrence, Justice Blackmun agreed with the Court that
           there are limited exceptions to the probable-cause requirement, in which
           reasonableness is determined by “a careful balancing of governmental and
           private interests,” but concluded that such a test should only be applied “in
           those exceptional circumstances in which special needs, beyond the normal
           need for law enforcement, make the warrant and probable-cause
           requirement impracticable. . . .” This Court subsequently adopted the
           “special needs” terminology in O’Connor v. Ortega, 480 U.S. 709, 720
           (1987) (plurality opinion), and Griffin v. Wisconsin, 483 U.S. 868, 873
           (1987), concluding that, in limited circumstances, a search unsupported by
           either warrant or probable cause can be constitutional when “special needs”
           other than the normal need for law enforcement provide sufficient
           justification.

Ferguson v. City of Charleston, 532 U.S. 67, 76 n.7 (2001).
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(Blackmun, J., concurring in judgment) (explaining that the reasonableness

balancing test should be applied only if special needs have been established).

      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. 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. 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 not include a policy requiring candidates for

public office to submit to drug testing because the Court concluded that the state’s

asserted need to “signify that candidates, if elected, will be fit to serve their

constituents free from the influence of illegal drugs” was merely “symbolic” and




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not substantially special to warrant an exemption from the Fourth Amendment. 2 Id.

at 321–22.

       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, 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.

       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. Given the “safety-sensitive tasks” that the railroad

employees engaged in, the Court determined that the government presented a


       2
          We also note that the Supreme Court in Ferguson struck down as unconstitutional a
state hospital policy of drug testing pregnant women who medical staff considered to be potential
cocaine users. 532 U.S. at 86. The Court, however, distinguished the testing regime in Ferguson
from its prior drug testing cases because the program was established in conjunction with law
enforcement officials so that test results could be turned over for criminal prosecution. 532 U.S.
at 84 (“Given the primary purpose of the Charleston program, which was to use the threat of
arrest and prosecution in order to force women into treatment, and given the extensive
involvement of law enforcement officials at every stage of the policy, this case simply does not
fit within the closely guarded category of special needs.”). The Court also noted that the privacy
interests were much greater in Ferguson than its other drug testing cases. Id. at 78.
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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. 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. 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. 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.

      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.

The Court pointed out that the Customs Service, in performing its “almost unique

mission,” id. at 674, was our “first line of defense against . . . the veritable national

crisis in law enforcement caused by smuggling of illicit narcotics,” id. at 668, and

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that “[m]any of the Service’s employees are often exposed to this criminal element

and to the controlled substances it seeks to smuggle into the country,” id. at 669.3

As a result, our “national interest in self-protection could be irreparably damaged”

if Customs’ employees’ performance on the job was impaired by drug use. Id. at

670. The Court also noted that “Customs employees who may use deadly force

plainly ‘discharge duties fraught with such risks of injury to others that even a

momentary lapse of attention can have disastrous consequences.’” Id. at 670

(quoting Skinner, 489 U.S. at 628). Thus, given the substantial danger of physical

harm, threat to national security, and numerous temptations inherent in the affected

positions involved in the interdiction of drugs being smuggled into the country, the

Court agreed that the government demonstrated a special need in ensuring against

the creation of such risks within the Customs Service. Id. at 670–71.

       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]

       3
        As an example of the sort of illicit temptation potentially faced by Customs’ employees,
the Court noted that “Customs officers have been the targets of bribery by drug smugglers on
numerous occasions, and several have been removed from the Service for accepting bribes.”
Von Raab, 489 U.S. at 669.
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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.

      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, 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 (quoting T.L.O., 469 U.S. at 340–41).

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; Earls, 536 U.S. at 834.

      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,

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663. The deleterious effects of drug use were of particular concern in the specific

context of student athletics, which the Court noted “increases the risk of sports-

related injury” and affects “motivation, memory, judgment, reaction, coordination,

and performance.” Id. at 649. Likewise in Earls, the Court reiterated “the

importance of the governmental concern in preventing drug use by schoolchildren”

and determined that the “health and safety risks identified in Vernonia” applied

with “equal force” in the context of school children participating in extracurricular

activities. 536 U.S. at 834.4

       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; see also Vernonia, 515 U.S. at 656

(“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



       4
          We note that in both Vernonia and Earls, the Court acknowledged that the school
districts had presented specific evidence of drug use by the relevant population of students and
that the Court would not “second-guess the finding of the district court that . . . the [School
District] was faced with a ‘drug problem’ when it adopted the policy.” Earls, 536 U.S. at 834.
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government’s responsibilities, under a public school system, as guardian and tutor

of children entrusted to its care.” Vernonia, 515 U.S. at 665.

      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 (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. After distinguishing Skinner, Von Raab and Vernonia, the Court reiterated

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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 departure from the

Fourth Amendment’s main rule.” Id. at 319. (“Nothing . . . hints that the hazards

[the State] broadly describe are real and not simply hypothetical for Georgia’s

polity.”). Not only did Georgia fail to put forth “evidence of a drug problem

among the State’s elected officials,” but the Court also noted that those officials

were not involved in high-risk or safety-sensitive tasks nor were they part of any

drug interdiction effort. Id. 321–22. Thus, all that was left was an image that the

State wished to project that “candidates, if elected, will be fit to serve their

constituents,” at least to the extent of being “free from the influence of illegal

drugs.” Id. at 321. 5 However, the Court refused to credit this interest as a

substantial special need, but instead concluded the need was merely “symbolic”

and would not justify suspicionless drug testing. Id. at 322.




       5
         The Court also pointed out that Georgia failed to show “why ordinary law enforcement
methods would not suffice to apprehend such addicted individuals, should they appear in the
limelight of a public stage.” Id. at 320.
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      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.”




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       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. 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


       6
          In concluding that the State failed to present evidence in support of its alleged special
needs, the district court also noted that the State failed to address the only competent evidence in
the record about drug use among TANF recipients. That evidence derived from a study, known
as the Demonstration Project, which had been developed and implemented by DCF in 1998.
DCF conducted the study after the State passed legislation requiring the Demonstration Project
to test empirically whether individuals who applied for TANF benefits were likely to abuse drugs
and whether such abuse affected employment opportunities. The legislation permitted drug
testing only of those individuals for whom DCF had reasonable cause to believe were engaged in
illegal drug use. Over an eighteen-month period, the researchers on the Demonstration Project
used a written test to screen over 8,700 TANF applicants for reasonable cause to believe they
were substance abusers. Of those screened, 1447 applicants were identified as potential
substance abusers and required to undergo urinalysis. Only 5.1% (353 individuals) of the total
screened population tested positive. The researchers noted that this rate of drug use was lower
than had been reported in other national studies of welfare recipients.
         The Demonstration Project found no discernible difference in the employment rate and
level of government assistance provided to recipients who were drug users and those who were
non-users. The researchers concluded that: (1) because it is difficult to determine the extent of
drug use among welfare beneficiaries, such estimates should not be used for sanctioning
purposes and (2) drug testing may be of little benefit given the finding of inconsequential
differences between drug users and non-users on employability and reliance on government
benefits.
         The district court found that the results of the Demonstration Project undercut the State’s
rationale for its asserted need for drug testing. Specifically, the district court noted that the rate
of drug use reported in the Demonstration Project of 5.1% is lower than Florida’s general
population, currently estimated to be around 8.13%, thereby suggesting that TANF applicants are
no more likely than any other recipient of government benefits to misuse funds for drug use or
expose their children to drugs. The district court also noted that study’s conclusion regarding
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       While “[a] demonstrated problem of drug abuse, [is] not in all cases

necessary to the validity of a testing regime,” such evidence could “clarify” and

“substantiate” the dangers presented by such drug use and whether those dangers

were pertinent to the government’s asserted special need for drug testing,

Chandler, 520 U.S. at 319. Thus, unlike Skinner, Vernonia, and Earls, in which

the government presented evidence of drug use within the affected populations,

here, the State presented no empirical evidence to bolster its special needs

argument that suspicionless drug testing of TANF applicants is in any way

warranted. See id. (noting that evidence of drug use in Skinner and Vernonia

“bolstered the Government’s and school officials’ arguments that drug-testing

programs were warranted and appropriate”). 7 As the Court noted in Chandler,




employability also contradicts the State’s rationale that drug users are less likely to find and to
keep employment.
        Although we find no error in the district court’s finding that the results of the
Demonstration Project hinders rather than supports the validity of the State’s asserted special
needs, we do not mean to suggest that there is any affirmative burden on the part of the affected
population to bring forth evidence refuting the legitimacy of the State’s purported special needs
for drug testing. To the contrary, the Supreme Court has unequivocally stated that it is the state
which must show a substantial special need to justify its drug testing. See e.g., Chandler, 520
U.S. at 318 (“Georgia has failed to show, in justification of [its drug testing statute], a special
need of that kind.”).
        Moreover, the district court did not abuse its discretion in finding that the other evidence
submitted by the State failed to support the finding of a special need for drug testing. The three
affidavits from DCF employees only provided a factual description of the TANF program and
how the drug testing would be implemented. None of the affidavits spoke to the State’s need for
suspicionless drug testing. Likewise, the district court did not err in rejecting, as irrelevant or
non-persuasive, the reports concerning drug use in the welfare populations.
        7
          In pointing out that there is no evidence of a demonstrated problem of drug use within
Florida’s TANF population to support the State’s special needs argument, we in no way are
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“[n]othing . . . hints that the hazards [the State] broadly describe are real and not

simply hypothetical.” Id. at 319.

       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; see also Von Raab, 489 U.S.

at 670. 8 Thus, the State’s argument that it has a special need to ensure that the



suggesting that evidence of drug use within the TANF population would, in and of itself, suffice
to establish a substantial special need for mandatory drug testing. Nor do we read any of the
Supreme Court’s drug testing cases to say that empirical evidence of drug use is sufficient to
establish a special need. Instead, all that the Court has said of actual evidence of drug use is that
it is neither necessary nor sufficient to establish the type of substantial special needs that permit a
drug testing regime to fall within the closely guarded category of permissible suspicionless
searches.
         8
           We also note that TANF recipients, much like the elected officials in Chandler who
often “appear in the limelight of a public stage,” 520 U.S. at 320, are subject to regular oversight
and monitoring by Florida’s welfare officials as part of verifying their ongoing eligibility for the
TANF program. They are certainly far more visible to Florida’s welfare officials than non-
TANF recipient parents struggling with drug addiction. Accordingly, just as the Court in
Chandler concluded that there was no reason why ordinary law enforcement would not suffice to
deal with drug addicted elected officials, id., we see no reason why here, Florida welfare officials
                                                  19
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goals of the TANF program are not jeopardized by the effects of drug use seems to

rest on the presumption of unlawful drug use. But the Supreme Court has required

that a state must present adequate factual support that there exists a “concrete

danger,” Chandler, 520 U.S. at 319, not simply conjecture that there is a substantial

“special need” that cannot be met by ordinary law enforcement methods

warranting the drastic action of abrogating an individual’s constitutional right to be

free from unreasonable government searches.

       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




would not be able to address drug addiction through normal law enforcement methods when, and
if, it manifests itself in a given TANF household.
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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 Chapter 39 of the Florida Statutes, which governs Florida’s

obligation to protect children from child abuse, abandonment and neglect. 9 See

Fla. Stat. §§ 39.001–39.908.

       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 (“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

       9
          The State argues that Earls and Vernonia support its position that the government has a
substantial concern over child welfare that justifies drug testing of TANF recipients. Although
Earls and Vernonia found the existence of a special need that justified mandatory drug testing of
school children, it did so in the unique environment of the public school setting, where the State
itself has a parens patriae obligation toward the children under its direct supervision and control.
Earls, 536 U.S. at 834; Vernonia, 515 U.S. at 662. State officials are not in the same position vis
a vis either the adult or child participants in the TANF program and thus, the child welfare-
related special need identified in Earls and Vernonia is inapplicable here.

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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 (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 to drug testing. Accordingly, the State

argues that because the drug test is administered only to those persons who have

consented to the test and because a consented-to search is deemed reasonable,

Florida’s mandatory drug testing program does not run afoul of the Fourth

Amendment.

      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,”

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see Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), a valid consent means

one which is “in fact, freely and voluntarily given,” see Bumper v. North Carolina,

391 U.S. 543, 548 (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 (1948)

(holding as invalid a search of defendant’s home which “was demanded under

color of office” even though the government officials did not possess a search

warrant); see also Bumper, 391 U.S. at 548–49 (“[The government’s] burden

cannot be discharged by showing no more than acquiescence to a claim of lawful

authority.”); Amos v. United States, 255 U.S. 313, 317 (1921) (“The contention

that the constitutional rights of defendant were waived when his wife admitted to

his home the government officers, who came, without warrant, demanding

admission to make search of it under government authority, cannot be entertained. .

. . [I]t is perfectly clear that under the implied coercion here presented, no such

waiver was intended or effected.”).

      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

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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.

         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




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fact that a state requires the affected population to “consent” to the testing in order

to gain access or retain a desired benefit.

      The State’s reliance on Wyman v. James, 400 U.S. 309 (1971) to support its

contention that the mandatory consent here renders the drug testing reasonable for

Fourth Amendment purposes is misplaced. Fundamentally, Wyman is inapplicable

to whether Florida’s drug testing of TANF applicants is a constitutionally

reasonable search. In Wyman, the Court addressed whether the State of New York

could make home visits by state welfare workers a mandatory condition to the

initial or ongoing receipt of Aid to Families with Dependent Children (“AFDC”)

benefits, or whether the recipient could refuse entry to her home without risking

eligibility for benefits. 400 U.S. at 310. The recipient argued, among other

grounds, that the state welfare worker’s home visit was a search subject to the

requirements of the Fourth Amendment. Id. at 313. Although the Court

acknowledged the principle that “a search of private property without proper

consent is unreasonable unless it has been authorized by a valid warrant,” it

concluded that “[t]his natural and quite proper protective attitude, however, is not a

factor in this case.” Id. at 317 (emphasis added). Instead, the Court went on to

hold that the state welfare worker’s home visit was not a search, and thus the

Fourth Amendment or any of its requirements or protections did not matter. “[W]e




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are not concerned here with any search by the New York social service agency in

the Fourth Amendment meaning of that term.” Id.

      In this case, however, the fact that government-mandated drug testing is a

search has been well-settled and beyond any debate since the Court’s decision in

Skinner. See Skinner, 489 U.S. at 617 (“Because it is clear that the collection and

testing of urine intrudes upon expectations of privacy that society has long

recognized as reasonable, . . . these intrusions must be deemed searches under the

Fourth Amendment.”). This fundamental difference between the state welfare

worker’s home visit (which is not a search) and the drug testing at issue here

(which is a search) renders Wyman inapplicable to the constitutionally significant

question of whether the mandated consent that is part of Florida’s drug testing

regime makes the search reasonable. Thus, we cannot agree with the State’s

argument that Wyman held that “consent” to an “administrative-search

requirement” renders the “search constitutional,” as this contention simply ignores

that the Court in Wyman concluded that there was no search. Therefore, because

there was no search, the Court had no reason to decide whether the AFDC

recipient’s “consent” would have rendered the home visit constitutionally

reasonable for purposes of the Fourth Amendment.

      Thus, when the Court in Wyman noted that the home visit was not forced or

compelled, that the denial of permission to enter the home was not a criminal act,

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and that the withholding of consent resulted in no home visit and the cessation of

welfare benefits, it made these statements to explain why it reached its holding that

the welfare home visit is not a Fourth Amendment search. Wyman, 400 U.S. at

317–18. It simply never reached the question of whether, and under what

conditions, a mandatory “consent” could render an actual Fourth Amendment

search reasonable.10

       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.

       10
           Although the Court held in Wyman that a welfare home visit is not a Fourth
Amendment search, the Court went on to discuss why such a visit would nonetheless be
reasonable, if the Court assumed that it was similar to a traditional search. See Wyman, 400 U.S.
at 318–24. The State does not rely on this part of Wyman to support its position regarding
“consent” and we find nothing in the Court’s reasonableness analysis that would support the
conclusion that Florida’s requirement that TANF recipients “consent” to mandatory drug testing
renders the subsequent search reasonable for the Fourth Amendment. Wyman is further
distinguishable as it was decided outside the context of drug testing and the Supreme Court has
well-established precedent that governs the reasonableness of drug testing in the event a court is
called upon to balance the competing government and individual privacy interests. Moreover,
because we have already concluded that the State failed to establish a “substantial special need”
for mandatory suspicionless drug testing, we need not balance any government interest against
individual privacy interests, and thus Wyman’s reasonableness analysis is irrelevant here.
        The Court’s statement that the welfare recipient’s failure to grant consent to a home visit
was entirely her choice and involved “nothing of constitutional magnitude,” does not support the
State’s position here, that TANF recipients, like Lebron, who refuse to submit to drug testing
have had no constitutional rights violated. Wyman, 400 U.S. at 324. That the welfare recipient’s
choice to deny a home visit involved “nothing of constitutional magnitude” is because the Court
held that the welfare home visit is not a search for purposes of the Fourth Amendment and thus
the decision to permit or to deny such a home visit simply does not infringe upon any
constitutional rights. Here, however, because a government mandated drug test is a search, the
decision regarding submission to that search directly implicates an individual’s Fourth
Amendment rights.
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593, 597 (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 (1994).

      The Supreme Court recognized this principle, as long as a century ago in

Bailey v. Alabama 219 U.S. 219, 245 (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 Court went on to hold that this state power is limited when federal

constitutional rights are at stake. See 219 U.S. at 239 (“The power to create [state

procedural rules] is not a means of escape from constitutional restrictions.”).

Succinctly put, “[w]hat the state may not do directly it may not do indirectly.” Id.

at 244. Later in Speiser v. Randall, 357 U.S. 513, 526, 528–29 (1958), the Court

applied the principles of Bailey in holding that the state of California could not

place the burden on taxpayers to attest that they did not advocate the overthrow of

the government in order to receive the government benefit of a tax exemption

without violating the taxpayers’ First Amendment and Fourteenth Amendment due

process rights. See also Sherbert v. Verner, 374 U.S. 398, 404 (1963) (holding that

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a state could not force an individual to choose between “following the precepts of

her religion and forfeiting [unemployment compensation] benefits, on the one

hand, and abandoning one of the precepts of her religion in order to accept work,

on the other hand” without unconstitutionally burdening the First Amendment right

to free exercise of religion).

      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

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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 (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

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injunction enjoining the State from enforcing § 414.0652, Fla. Stat.

      AFFIRMED.




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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 Fla. Stat. § 414.0652. We are reviewing the grant of a

preliminary injunction on an undeveloped record, and therefore are considering

only the district court’s determination that Mr. Lebron is likely to succeed on the

merits of his Fourth Amendment claim. See, e.g., Doran v. Salem Inn, Inc., 422

U.S. 922, 932 (1975) (“In these circumstances, and in the light of existing case

law, we cannot conclude that the district court erred by granting preliminary

injunctive relief. This is the extent of our appellate inquiry, and we ‘intimate no

view as to the ultimate merit of [respondent’s] contentions.’”) (citation omitted);

Di Giorgio v. Causey, 488 F.2d 527, 528-29 (5th Cir. 1973) (“[O]n appeal from a

preliminary injunction this Court does not concern itself with the merits of the

controversy. . . . No attention is paid to the merits of the controversy beyond that

necessary to determine the presence or absence of an abuse of discretion.”).

      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

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(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 (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, Inc. v. MCIMetro Access Transmission Services,

LLC, 425 F.3d 964, 970 (11th Cir. 2005) (“The district court did not abuse its

discretion in determining that Bellsouth had established a substantial likelihood of

success.”); Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (reviewing district

court’s “substantial likelihood of success” determination for abuse of discretion);

Café 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir. 1993) (“Whether

the district court’s determination of this point [substantial likelihood of success] is

right or wrong, the record here indicates no abuse of discretion.”).

      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

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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 (1961)). 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 (1997). See also United States v. Jeffers,

342 U.S. 48, 51 (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 §

414.0652, for “the burdens at the preliminary injunction stage track the burdens at

trial.” Gonzalez v. O Centro Beneficiente Uniao do Vegetal, 546 U.S. 418, 429

(2006). See also Ashcroft, 542 U.S. at 666 (preliminary injunction case: “As the

government bears the burden of proof on the ultimate question of COPA’s

constitutionality, [the plaintiffs challenging COPA] must be deemed likely to

prevail unless the government has shown that [the plaintiffs’] proposed less

restrictive alternatives are less effective than COPA.”).

      4. I am not persuaded by the only other appellate decision addressing the

constitutionality of a warrantless and suspicionless drug testing program for

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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 F. App’x

601 (6th Cir. 2003) (en banc).      First, the Sixth Circuit panel—contrary to the

teaching of cases like Ashcroft and Gonzalez—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 (1995)

(“Central, in our view, to the present case is the fact that the subjects of the Policy

are (1) children, who (2) have been committed to the temporary custody of the

State as schoolmaster.”); Bd. of Education v. Earls, 536 U.S. 822, 828 (2002) (“As

in Vernonia, the context of the public school environment serves as the backdrop

for the analysis of the privacy interest at stake and the reasonableness of the drug

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testing policy in general.”).   Third, the Sixth Circuit panel did not give enough

weight to the Supreme Court’s decision in Chandler. See 309 F.3d at 334-35. As

a result, the district court here did not abuse its discretion in refusing to follow the

vacated panel decision in Marchwinski.

      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 (1988) (denying food stamps to workers on strike does not infringe

on First Amendment rights) with, e.g., Sherbert v. Varner, 374 U.S. 398, 404-05

(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. Sinderman, 408 U.S. 593,

597 (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

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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 (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 (“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 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,

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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 scholarships, see Fla. Stat. § 1009.53) to ensure that those funds are not

being misused and that policy goals (e.g., the graduation of such students) are

being achieved. Constitutionally speaking, the state’s position is simply a bridge

too far.




                                        38
