Democracy gives every man the right to be his own oppressor. ~James Russell Lowell


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ACLU Background Briefing, April, 1994

During his campaign for President, Bill Clinton promised voters that if elected he would "end welfare as we know it." This promise has given impetus to a welfare reform debate in Congress, within the Clinton administration, in the 50 states and among the general public. While there is a consensus that the welfare program is in need of change, there is little agreement about how to change it.

The Clinton Administration's Working Group on Welfare Reform -- an interagency task force created to construct a comprehensive welfare reform package -- is expected to announce its proposal in May. Members of Congress are also weighing in on the issue with new legislation being introduced almost weekly.

Within this rich mix of competing and overlapping approaches, several issues have emerged that raise civil liberties concerns. The American Civil Liberties Union is monitoring the various welfare reform proposals, with particular attention to certain problematic aspects discussed more fully below.

Although the Constitution does not guarantee the right to receive welfare, the ACLU believes that reform of the public assistance system will likely implicate a variety of constitutional rights. In particular, once the government decides to give welfare benefits -- as the United States did during the New Deal -- there are constitutional limits to the conditions that it can attach to those benefits and to the treatment afforded beneficiaries.

Welfare reform holds out many opportunities for strengthening the civil liberties of some of society's most vulnerable individuals. If not properly designed, however, welfare reform poses many threats to due process, privacy and equal protection rights, as well as to First Amendment freedoms.

The ACLU will oppose any welfare reform proposal that:

> Conditions the receipt of welfare upon the recipients' willingness to waive constitutional rights to privacy and free association. > Removes or reduces benefits arbitrarily or without due process. > Targets groups of individuals for unfair treatment in a manner that offends the equal protection principles of the Constitution.

The remainder of this briefing paper will examine some of the myths and realities of welfare and then provide a more detailed review of our civil liberties concerns.

The Myths and Realities of Welfare

Welfare is an umbrella term for a variety of programs that provide income support and create a social safety net for impoverished individuals and families. The program discussed most often in the context of federal welfare reform is Aid to Families with Dependent Children (AFDC), a program that enables states to provide cash subsistence payments to children who are deprived of a parent's care or support. Welfare benefits also include food stamps, housing allowances, Medicaid, Supplemental Security Income (SSI) and, at the state level, General Assistance (GA).

As a result of structural changes in the American economy, the number of individuals receiving welfare benefits has increased in recent years. The majority of these individuals are single mothers and children. At the same time, the public has grown increasingly intolerant of women on welfare, and many have bought into the myths and stereotypes about who these women are. In the same manner that Willie Horton became a lightning rod for our fears and stereotypes in the context of crime, the "welfare queen" who is presumed to continue to have children and drive up to the welfare office in her Cadillac while stubbornly refusing to work, has become the hot button image of American fears and stereotypes of the poor.

The reality of life on welfare is strikingly different from this stereotype. Numerous studies and reports have found that no one gets rich, or even lives comfortably on welfare. The combined benefits available to families from AFDC and food stamps are below the poverty line in all 50 states and the District of Columbia. In 41 of these jurisdictions, the benefits give a family an income that is at least 25 percent below the poverty line, or less than $8,700 a year for a family of three.

Contrary to the myth of large and ever growing welfare families, the Congressional Budget Office reports that most parents receiving AFDC have only one or two children. The average size of a family on welfare is slightly smaller than the average size of American families in general.

A Civil Liberties Concern:
Unconstitutional Conditions On the Receipt of Welfare

The Child Exclusion. One proposal that has received a great deal of attention is the child exclusion or family cap. Currently, a family's benefits level is calculated on a per capita basis, so that payments increase with the birth of an additional child -- just as a middle class family's dependent tax deduction increases with the birth of an additional child. Child exclusion proposals would eliminate the incremental increase in benefits if a child is born or conceived while his or her parent is receiving benefits, thereby depriving that child of the welfare safety net and depriving the entire family of assistance needed to pay rent and other household expenses.

The child exclusion is not about saving money; it is about singling out poor children for punishment. There is no valid basis for the government to distinguish between middle class parents who get income support through tax deductions and poor parents who get income support through AFDC. Neither is there any basis for distinguishing between children born before a parent enters the AFDC program and children born afterwards.

Empirical evidence strongly suggests that women do not choose to have children because of the small increase in welfare benefits. A 1992 report by Child Trends Inc. found that the five states with the highest birth rates among 18- and 19-year-old women -- Arizona, Arkansas, Mississippi, Nevada and New Mexico -- all have AFDC benefits below the national median; the four states with the lowest birth rates among 18- and 19-year-old women -- Massachusetts, New Hampshire, North Dakota and Vermont -- all have AFDC benefits above the national median. If living far below the poverty line does not, in itself, reduce childbearing, there is no reason to expect that the denial of a very small incremental increase will have that effect.

The goal of child exclusion proposals, as outlined by its proponents, is to coerce "welfare mothers" into not having children. But just as the government cannot outlaw abortion and require women to bear children, the government cannot prevent some women from having children.

This argument is supported by the long line of decisions from the U.S. Supreme Court about the constitutional right to privacy with respect to reproductive freedom decisions. From the 1965 ruling in Griswold v. Connecticut, which held that the government cannot prohibit married couples from practicing birth control, to 1973's Roe v. Wade, when the Court held that women have the right to terminate their pregnancies, to 1992's Planned Parenthood v. Casey, when the Justices reaffirmed the basic right to obtain an abortion, the Supreme Court has recognized that the decision to bear children or not to bear children is solely an individual woman's decision.

Child exclusions are also reminiscent of the era of officially sanctioned social engineering earlier in this century when government authorities tried to limit the reproductive capacities of "non-desirables." In 1942, for example, the U.S. Supreme Court examined -- and struck down as unconstitutional -- the Oklahoma Habitual Criminal Sterilization Act. Justice William Douglas, writing for the majority of the Court in Skinner v. Oklahoma, noted that "This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of the race -- the right to have offspring."

Ultimately, though, the child exclusion punishes the child, and by stretching the family's resources, the other children in the family for the actions of the parent. In 1982, in the landmark case of Plyler v. Doe, the Supreme Court struck down a Texas law that prevented children of undocumented aliens from attending school on the grounds that the law impermissibly punished the children for the conduct of their parents. The child exclusion has the same impermissible effect.

Norplant. Another welfare "reform" that would restrict the privacy rights of poor women would link benefits to the use of birth control. And, once again, just as the government cannot condition the receipt of welfare on whether a family attends church or whether a mother takes a loyalty oath because such conditions would violate the First Amendment, the government cannot condition the receipt of benefits on whether a mother chooses not to procreate.

Norplant is a new contraceptive that became commercially available in the United States in February, 1991, after its approval by the Food and Drug Administration. It consists of six matchstick-size silicone capsules inserted in a woman's upper arm that release small amounts of progestin over a five-year period. Norplant works automatically, is easily monitored, and cannot be removed without medical assistance, making it susceptible to attempts by government authorities to coerce women into using it.

Particularly for low-income women, the offer of money to feed, clothe and house their families -- even if it is in exchange for giving up their constitutional rights -- may be difficult to refuse.

But we must remember that Norplant is an invasive medical procedure which leaves a majority of women experiencing serious side effects. And government coercion or encouragement of medical treatment has been repeatedly examined by the courts and found to be an unconstitutional violation of an individual's right of bodily integrity.

As the Supreme Court observed in United Pacific R. Co. v. Botsford in 1891, "no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of [her] own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." In 1990, in Cruzan v. Director, Missouri Health Department, the Supreme Court made explicit a principle that has long been an implicit legal rule: There is a constitutional right to refuse medical treatment. Poor women, of course, share that constitutional right and their receipt of subsistence benefits cannot be conditioned upon the exercise of their private medical decisions.

Teenage Residency Requirements. The Clinton Administration is likely to propose that mothers under the age of 18 must live with their parents to receive welfare benefits. Many teenage mothers do choose to live with their parents, and are welcomed in their parents' homes. But the ACLU believes that forcing a teen parent to live with people she may not choose to be a part of her family is a violation of core civil liberties.

The idea of requiring teen parents to live with their parents is particularly troubling given the disproportionate number of teen mothers who have been abused by family members. Of women who had become pregnant during adolescence, according to a study by the U.S. Department of Health and Human Services, 66 percent reported that they had been sexually abused, with 54 percent of those who reported being molested saying they had been victimized by a family member.

Further, requiring teen parents to live with an adult may be a back door method of excluding teen parents from receiving benefits altogether. To qualify for benefits, an applicant must have resources and an income below a specified amount. But if the state counts the teenager's parent's income in assessing eligibility -- even if the money is not actually available to the child -- that teenager may not qualify for much-needed benefits. This process of assuming that income is available to the welfare applicant even when it is not is known as "income deeming" or "income assumption." These practices raise due process concerns because they arbitrarily deny benefits to impoverished individuals in need of assistance. The next section of this paper deals more fully with due process concerns.

A Civil Liberties Concern: Due Process Protections

Procedural Protections. Welfare recipients, just like other beneficiaries of government programs, have due process rights. This principle was spelled out in a landmark case involving a New York State man, John Kelly, who started receiving state disability payments after being injured in a hit-and-run accident. Kelly's troubles began after his caseworker asked him to move out of his home in the Broadway Central Hotel to the Barbara Hotel, a move Kelly resisted because the Barbara Hotel was filled with drug addicts and alcoholics. When Kelly's caseworker discovered he had not moved, she terminated his benefits without any advance notice and his benefit checks simply stopped coming. After a futile attempt to discuss the problem with his caseworker, who refused to see him, Kelly eventually filed a lawsuit challenging the arbitrary termination of his benefits.

Since the Supreme Court's decision in Goldberg v. Kelly more than 20 years ago, the courts have recognized that welfare recipients have a property interest in the continuation of benefits that cannot be terminated without due process of law. To comply with the due process protections of the Constitution, government agencies must provide for a hearing that includes: advance notice, an opportunity to be heard, the right to cross-examine adverse witnesses, the right to be represented by counsel and the right to have a statement of reasons for the decisionmaker's determination. The courts have also required that there be an opportunity for judicial review of a decision to end benefits so the initial hearing does not become the forum of last resort.

As a result of the Goldberg decision, there is a due process system currently in effect in every state to review the termination of AFDC benefits. The ACLU believes that any rule that would categorically exclude a class of individuals from receipt of benefits -- such as teen parents who do not live with their parents -- would not only be bad public policy, but would also violate the Constitution unless the recipient had due process rights to challenge her categorization. Without these protections, an indigent person has no opportunity to respond to a decision that affects his or her liberty, property or even life. The recipient must have an opportunity to contest the government's factual contention that she or he is a member of the excluded class.

It is critical that categorical exemptions from the AFDC program comply with the same due process protections as any termination or denial decision. Thus, if there is a requirement that teen parents live with their parents, but there is an exemption for teens who are the objects of abuse, any ruling on the exemption must be made with all the procedural protections required by Goldberg so a caseworker's decision is subject to review.

Data Collection. Anytime the government makes large-scale decisions about people's lives there is the danger that such policies will be tainted by discrimination. This is particularly true when the decisions are insulated from public scrutiny. For that reason, it is important that the government collect data about the number and characteristics of individuals who become exempt or have their benefits terminated as well as the individuals who receive benefits. It is important that the data include information on the race, ethnicity and gender of recipients and that the data is specific and not summary.

Once the data is collected, it should be publicized periodically so that the public can see the results. Of course, the confidentiality of individual recipients must be protected. If the information reveals any pattern of discrimination, the data is important as a tool to challenge the discrimination in court.

A Civil Liberties Concern: Arbitrary and Unfair Targeting of Groups

Two-Year Limit. One proposal that is common to many of the welfare reform packages is to terminate welfare benefits after two years for recipients who are "able to work." The ACLU is scrutinizing these proposals to ensure that they do not arbitrarily target those who have been receiving benefits for more than two years for punishment, particularly when the reasons for not working are beyond their control.

If the government is going to deny benefits to a group of individuals while allowing benefits for others who are similarly situated, the Equal Protection Clause of the Constitution requires the government to have a very strong reason for distinguishing between the two groups. Yet the two-year time limit is a random one picked for political expediency and not tied to any realistic public policy goal.

Furthermore, the social costs of a two-year limit are potentially devastating. According to a study by the Center on Social Welfare, Policy and the Law, within seven months of instituting a two-year cut-off for General Assistance, the state of Michigan saw homelessness among former GA beneficiaries increase to 25 percent, from 2 percent before termination. Another study found that an estimated 27,000 former Michigan GA recipients went without food for 24 hours or more after termination. The New York Times reported that an elderly woman died because she did not have money to buy her heart medicine.

Despite occasional anecdotal evidence to the contrary, it is a pernicious -- and dangerous -- myth that people on welfare are willfully avoiding work. There are numerous reasons why someone would be unable to become employed within two years. The United States has a high unemployment rate, particularly for unskilled workers and even more so for minority unskilled workers. Thus for many welfare recipients, the jobs are simply not there. In addition, many individuals have physical limitations that may not rise to the legal definition of disabilities, but which hinder their ability to obtain employment. Finally, many recipients of welfare have very young or disabled children who need parental care, particularly in the absence of an adequate public system of child care. An Illinois study found that 42 percent of respondents indicated that child care problems were a barrier to working full time; 20 percent indicated they had returned to AFDC within the last two years in part because of child care problems.

A two-year cut-off that allows for exceptions in these situations -- in combination with due process protections for how the exceptions are determined -- would clearly be more acceptable than a simple termination deadline. The question that the ACLU is focusing on in the various proposals is: What happens after two years?

Workfare. Under a workfare program, welfare recipients are required to work for their benefits, generally in make-work jobs with below minimum wage payments or in return for AFDC payments, which are significantly below the poverty line. In addition, workfare workers do not enjoy the usual conditions of employment, such as guaranteed hours, medical benefits, insurance, social security and the right to strike and organize.

The ACLU opposes any proposal that creates a caste of drones: a sub-labor force working under sub-labor conditions. Any proposal that mandates work without the usual benefits and conditions of work raises concerns about violating the principles contained in the Equal Protection and Due Process Clauses of the Constitution. Such a proposal threatens not only people in the workfare program, but all workers who would see a decline in their working conditions because of the example and competition of workfare.

One frightening aspect of workfare is that it shuts down worker mobility. A recipient must stay in his or her job or jeopardize life-sustaining benefits. The result is that workfare workers who are subjected to abuse or harassment on their jobs have very little recourse. If they leave the job, they risk losing their benefits.

The Clinton Administration appears committed to offering a scheme of "work for wages." While the ACLU would applaud and encourage any proposal that includes plans for a well-funded, voluntary job training and employment program, we will scrutinize the details of any proposal to ensure that "work for wages" is not an empty slogan to disguise an unfair -- or unconstitutional -- workfare program.

Learnfare. Learnfare is a program that denies benefits to children if they miss school. This approach punishes the child by depriving the entire household -- including innocent children -- of essential subsistence.

As a practical matter, learnfare has failed in its stated goal of reducing truancy. An evaluation of Wisconsin's Learnfare program, commissioned by that state and completed by the University of Wisconsin-Milwaukee, found no evidence of improved school attendance. The study found that after one year of learnfare, sanctioned students showed the highest dropout rates with about half dropping out; after two years there was an increase in the percentage of students with poor attendance.

Immigrants. Like poor people, immigrants are particularly vulnerable to civil liberties abuses. Under current law, undocumented immigrants are already prohibited from receiving welfare benefits. And lawful permanent residents are effectively precluded from receiving benefits their first five years in the United States because the law deems their sponsor's income to be available to them. Several welfare reform proposals would either extend this deeming requirement into a permanent mandate or eliminate any benefits even for legal immigrants.

Once again, targeting immigrants as a class for exclusion serves no positive public policy goal. Since these immigrants come to the United States in full compliance with, and often with strong encouragement of, the law, excluding them will not curb illegal immigration. According to the Congressional testimony of the Urban Institute, the only immigrant group that receives benefits at a higher rate than citizens is refugees who are usually fleeing war and oppression, often in haste. There are strong public policy reasons to allow a welfare safety net for these individuals and no rational reason for excluding them. Neither is there a rational reason for targeting non- refugee lawful immigrants since they receive welfare coverage at a lower rate than citizens, according to the Urban Institute.

Although the ACLU believes the practice of excluding lawful immigrants from receiving welfare benefits during their first five years in the United States violates their consitutional right to equal protection, the Supreme Court in 1976 ruled in Mathews v. Diaz that the federal government could do so because of Congress' authority to control the nation's borders. Congress, we believe, has an independent obligation to interpret the Constitution and the authority to change this discriminatory practice. At the very least, it should not extend the five-year period of discrimination any further.

Lawful immigrants pay taxes. They also receive welfare benefits for the same reasons that everyone else receives benefits: loss of jobs, illness, disability, divorce or other changes in life circumstances. The only reason to target immigrants for exclusion is that they are vulnerable, as they have been throughout our history. The ACLU finds this an unacceptable basis for exclusion.

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