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Background Briefing:
The Civil Liberties Issues Of Welfare Reform

For IMMEDIATE RELEASE                         
April 27, 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.

--endit--
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