Can the CHA really drug test public housing residents?

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There's a lot being said about the Chicago Housing Authority's new proposal to drug test all of its residents. Many residents have come out against it. Others are all for it - saying they think it'll make public housing safer.

But I wanted the facts. Is drug testing legal? Will it keep people safe? Does it make sense?

I sat down with Ed Yohnka, director of communications and public policy for the Illinois American Civil Liberties Union, to get answers to these questions. I'm going to tell you what he told me - my questions, his answers. Read it and decide for yourself.

Megan Cottrell: What is the CHA proposing in regards to drug testing?

Ed Yohnka: As we read the proposal, what they are suggesting is that every person in any CHA household or any family that is applying to CHA, for every person that is at least 18 years old, they would have to undergo a suspicionless drug test to secure the apartment and to renew the lease. It would be an annual test.

Cottrell: Even senior citizens?

Yohnka: That's correct. I think that's one of the things from just a policy perspective that is the greatest concern to us. I think that's what you see people reacting to. The notion that individuals who are senior citizens who have never been involved in any kind of criminal activity are going to be subjected to this humiliating, degrading activity on the basis of this policy change. No one is immune based on their lack of criminal activity. It's an overreaction of  the worst kind in terms of what it is that the CHA says that they're attempting to address.

Cottrell: What is the ACLU's reaction?

Yohnka: We oppose it. We oppose it for any number of reasons. First, drug testing is really an invasive procedure. It invades a person's privacy and their bodily autonomy. It's humiliating and  embarrassing. In the absence of individual suspicion, all you're doing is really creating a stigmatization about people living in CHA or applying for CHA housing. Somehow they are guilty on the basis of being poor. People all across the city of Chicago rent housing everyday. None of them are asked to take a drug test. Every single study that has been done demonstrates that people do not use drugs at any higher rate because they're poor, than at any other socioeconomic group. They're creating the stigmatzation based on a false premise.

Next, the best estimate that we can see is that these tests cost about $50. If you assume that there are 20,000 adult CHA residents and applicants, that's a million dollars a year for testing. If the goal is security, wouldn't that million dollars be better used in directing it toward security, rather than drug testing of residents?

People who live in CHA housing want a safe secure home to live in the same way that everyone does. The notion that the only way they can achieve that is drug testing simply doesn't meet the test of analysis. We really believe that this is a particularly troubling proposal, both by the precedent it sets and the fact that it's really misguided in the way that it sets out to address a problem.

Cottrell: Is drug testing on this scale legal?

Yohnka: We don't think so. First of all, we think that it would violate the privacy guarantee of the 4th Amendment. Drug testing is a search. There's a case,  Chandler v. Miller, from the late 1990s, that talks about it being an actual invasive search. Second, a couple of years ago, in a case, Pottawatomie v. Earls, which was a drug testing case in a high school, they stated that drug tests are not only a search but a really intrusive search. You have to have a really strong reason for engaging in the search. There has to be a purpose to this - things that they can't do any other way.

We also think that the right to privacy is not diminished simply because someone is renting from CHA as opposed to someone else.

The remedy that's being offered is at best tenuous. CHA has talked publicly about reducing illegal drug dealing on CHA property. I believe a spokesperson said last week something like, 'Drug dealers won't come if there are no buyers.' The presence of drug dealers is not just a problem in CHA property, but frankly, in neighborhooods all across the city of Chicago,  but we don't suggest drug testing for everyone else. 

The CHA argues it needs to do this in order to keep residents safe. Is that a valid argument? We think that there are number of things that the CHA can do in order to keep people safe. Enforcing the trespassing rules, using policy techniques like controlled purpose drug stings, enforcing measures on the books, including evicting disruptive residents. All of those things would be alternatives that have nothing to do with intruding on the fundamental privacy rights on the individual residents.

Cottrell: Have other states or municipalities tried strategies like this?

Yohnka: Michigan, many years ago, tried to enforce drug testing for anyone to receive public benefits. That was overturned in federal court. Florida has recently, in their state of drug testing madness, included a broad test of all people who receive public benefits. I don't know of any place it has been used as a condition of housing.

Cottrell: A lot of people's gut reaction is that this is a good idea - that their tax dollars shouldn't go to house drug users. What's your take on that? 

Yohnka: Those comments are a sad reflection of how disconnected many people's lives are from people who are actually poor. The notion somehow that every person who is struggling and on assistance - in this economy of all economies - the notion that folks are simply engaged in unfettered drug use because they're poor really underscores a fundamental misunderstanding about the way that people live today.

The reality is that people who are poor do not tend to use drugs at any higher rate than people in other socioeconomic groups. The notion that we should divert a million dollars, precious tax payer dollars, in order to root out this very small number of people just seems to me to be a worse use and a vast neglect of the use of public funds. The notion that we're all going to be safer if we compel people against their will to take a suspicionless drug test, it isn't a particularly effective tool.

Cottrell: Do you think this measure will pass? 

Yohnka: I think it's hard to predict what will happen. I think that you will see a well-considered, well-organized effort on the part of many community members to oppose it. You're bound to see some real push back on the part of the residents.

In terms of our plans, we obviously have communicated our views to the CHA. We're talking to the groups that are in opposition. We continue to monitor the situation. But we're still in the comment period, so right now, we don't have a plan to file a lawsuit or anything of that nature. We'll just have to see how this all of this plays out.

Photo credit: Lisa Padilla

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