Jacquelyn Bolen


On March 8, 2014, at the conclusion of the 2014 Virginia General Assembly regular session, Virginia joined at least 17 other states that, in this year alone, have introduced proposals to screen or test applicants for illegal substances prior to obtaining public assistance. Following the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which permitted states to conduct drug testing as part of the Temporary Assistance for Needy Families (TANF) program, states began proposing drug screenings for applicants of public welfare benefits. Despite a 2003 Sixth Circuit decision holding that suspicionless drug testing is unconstitutional, in the last three years, eleven states have passed legislation that permit drug testing for welfare benefits in certain situations. The Virginia House of Delegates considered a similar measure this session with House Bill 234, which, if passed, would have required local social services departments to "screen" all recipients of public assistance in Virginia to determine whether probable cause existed to warrant drug testing of the recipient. While H.B. 234 was not as brazen as similar attempts in other states to indiscriminately drug test all applicants, the bill's failure to outline what constitutes "screening" still presents the constitutional question of whether this assessment represents an unreasonable search, thus violating the Fourth Amendment.