Rick Scott's Suspicion-Less Drug Testing: It's Back! (Sorta)

Well the 11th Circuit has muddied the waters somewhat by sending back to Judge Ungaro the colossally stupid drug-testing of state employees' scheme that Rick Scott came up with a few years ago.

The reasons have mostly to do with the convoluted boundaries between a facial attack on a statute vs. an "as applied" analysis, and whether the judge used the right analytical framework (to me she did):
To date, the parties’ litigation strategies in this case seem to have focused on avoiding the kind of job-category-by-category balancing that Skinner and its progeny teach us is the proper modality for evaluating the constitutionality of a suspicionless drug testing policy. The Union originally sought, and ultimately received, facial relief that cannot be sustained in light of the Executive Order’s constitutional applications. Meanwhile, the State has resisted providing the district court with any specific special-needs showings that apply to individual job categories and instead has insisted that a few broad, abstract reasons can justify the EO across the board. Admittedly, providing job-category-specific reasons and evidence -- which the district court must have in order to conduct the proper analysis -- is a substantial, even onerous, task. Nonetheless, convenience cannot override the commands of the Constitution.
This is Florida -- are you sure about that last sentence?


  1. Happy Friday, SFL!

  2. Lucky for me they can't test for acid!

  3. Good week SFL!

  4. The opinion exposes something that has infected the judiciary: bad writing. A college professor once told me that you should always use words that a 6th grader would understand. What is a "modality?" Sounds like something I would see in an autopsy report or blueprint for a new suspension bridge. Instead, use "way." Means the same thing. Every judge should read a Hemingway novel at least three times a year.


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