King v. Smith

1. King v. Smith A Study in Poverty, Welfare, Families, and Government Efforts to Regulate the Poor Nicole Daniel Liz Shepherd Matt Towey November 29, 2007

2. Introduction In King v. Smith, the US Supreme Court briefly surveyed the treatment of people living in poverty and governmental responses. The Court ruled that welfare programs as they existed in the mid-twentieth century were based upon �considerably more sophisticated and enlightened� attitudes toward the poor than in previous eras. This case study reviews the changing attitudes toward the poor, examines the legal arguments in this landmark welfare case, and specifically considers regulations attached to government assistance programs.

3. Attitudes Toward the Poor(Part 1) Law passed by English Parliament in 1597: �Every vagabond or beggar... shall be stripped naked from the middle upwards and publicly whipped until his or her body be bloody, and forth with sent to the parish where he was born... If any vagabond or beggar return again, he shall suffer death by hanging.�

4. Controlling the Behavior of People Living in Poverty The Statute of Labourers is thought of as the first legislation regarding welfare; enacted in England in 1349 Established maximum wages to address labor shortage after the Black Death Mandated that able-bodied men and women work, and imposed harsh penalties for those who remained idle. Expressly forbade the giving of alms to able-bodied beggars.

5. The Poorhouses By the 1830�s, both in England and the U.S., poorhouses were established in an effort to reform destitute people by instilling the value of labor. The designers of the poorhouses believed that ��the condition of welfare recipients � should be worse than the lowest paid self-supporting laborer. While relief should not be denied to the poor, life should be made so miserable for them that they would rather work than accept public aid.��

6. Direct Financial Assistance As conditions in the poorhouses worsened, advocates introduced the use of direct financial assistance to people living in poverty as an alternative. Reformers still preferred private charity rather than governmental involvement. They believed that assistance should not be considered to be a right, but instead should remain uncertain and therefore not threaten recipients� work ethic and initiative.

7. Attitudes Toward the Poor(Part 2) The Lovers of the Poor������� arrive. The Ladies from the Ladies� Betterment League Arrive in the afternoon� Their guild is giving money to the poor.The worthy poor. The very very worthyAnd beautiful poor. Perhaps just not too swarthy?Perhaps just not too dirty nor too dimNor�passionate. From The Lovers of the Poor by poet Gwendolyn Brooks

8. Efforts to Protect Children The plight of poor children, as distinct from the poor in general, received greater attention in the late nineteenth century. Children were removed from their families living in the poorhouses and instead placed in orphanages. Child advocates equated poverty with neglect, and seized poor children from their homes and sent them to institutions or farms.

9. Aid to Dependent Children By the turn of the century, however, some reformers realized that they could support these children by supporting their mothers, rather than break up their homes. Based upon this premise, Aid to Dependent Children (ADC) programs began in 1911 with the Illinois Fund to Parents Act and spread to nearly every state by 1925.

10. ADC Restrictions The ADC programs had numerous restrictions, most notably the disqualification of all intact families with two parents, based upon the premise that financial assistance to families with fathers would promote irresponsibility and idleness. Additionally, all single mothers had to be �fit and proper.� �In practice, ADC programs remained small. Relatively few families were enrolled; recipients were almost exclusively white widows � Excluded outright were most poor mothers---those who were divorced, deserted, never married, of color, or engaged in questionable behavior � They were the undeserving poor.�

11. Federal Relief through the Social Security Act ADC became a federal grant-in-aid program in 1935 as part of the Social Security Act. While the program was federally funded, the administration powers, including the eligibility rules and regulations, remained with the state and local governments.

12. Fit and Proper Mothers Mothers who did not meet the criteria of �fit and proper� faced suspension of benefits, leaving their children without any obvious means of support. As noted by the Supreme Court in King v. Smith, suspension of benefits often had unintended consequences: �disqualification provisions undermined a mother's confidence and authority, thereby promoting continued dependency; � they forced destitute mothers into increased immorality as a means of earning money; � they were habitually used to disguise systematic racial discrimination; � [and] they senselessly punished impoverished children on the basis of their mothers� behavior, while inconsistently permitting them to remain in the allegedly unsuitable homes.�

13. Unsuitable Homes �Unsuitable homes� often referred to homes led by single mothers. Incentives for marriage (or, conversely, disincentives for single motherhood), like those addressed by the Court in King v. Smith, were created to address this concern. The �man in the house� rules became a common, with variations of the substitute father regulations in at least eighteen states. The regulations were typically justified �on the grounds that a man living with a woman and her children would contribute financial support-- a situation indistinguishable from a married couple who would not qualify for AFDC. More commonly, the assumption was simply that �immoral women� were not entitled to aid.�

14. Attitudes Toward the Poor (Part 3) The Court in King v. Smith claimed that Aid for Families with Dependent Children (�AFDC�) reforms in the 1960s �corroborate that federal public welfare policy now rests on a basis considerably more sophisticated and enlightened than the �worthy-person� concept of earlier times.� After the 1960�s, advocates argued that public welfare benefits should not be considered charity, but instead should be redefined as a property right created by eligibility criteria. According to Donna Price Cofer, the �Social Security Act of 1935 provided that all persons establishing eligibility under its dictates are entitled to its benefits.�

15. Welfare as Property This rights-based argument was famously articulated in the 1964 Yale Law Journal article The New Property by Professor Charles Reich. In the article, Reich describes the vastness of federal government largess, including welfare benefits, government employment, licenses, franchises, contracts, subsidies, services, and the use of public resources. As Reich noted, �hardly any citizen leads his life without at least partial dependence on wealth flowing though the giant government siphon. In many cases, dependency is not voluntary. Valuables that flow from government are often substitutes for, rather than supplements to, other forms of wealth.�

16. Property as a Right In addition to direct financial support from the government, Reich explained that �more and more of our wealth takes the form of rights or status rather than of tangible goods.� According to Reich, however, property �is a legal institution the essence of which is the creation and protection of certain private rights in wealth of any kind.� Entitlement, according to Reich, means �objective eligibility safeguards against revocation or loss of benefits, and it means that the individual�s rights, whatever they may be, should be know to him and enforceable through law.�

17. Welfare as Property Reich concluded that government largess must �begin to do the work of property.� He wrote that �[e]ventually those forms of largess which are closely linked to status must be deemed to be held as of right. Like property, such largess could be governed by a system of regulation plus civil or criminal sanctions, rather than a system based upon denial, suspension and revocation. Reich concluded that the concept of largess as a right is most important for welfare programs that support the unemployed, the elderly, and those living in poverty. Recognizing that these benefits �represent part of the individual�s rightful share in the commonwealth,� Reich insisted that welfare and other benefits must be protected as a property right in order to maintain individual well-being and dignity.

18. But the Courts were not yet convinced � At the time of King v. Smith, however, the courts had not adopted the argument that welfare payments should be considered a property right. In a case filed at the same time as King, a District of Columbia federal court allowed �man in the house� substitute father regulations. The court agreed with the defendant Board of Commissioners that welfare benefits should be considered �grants or gratuities. Their disbursement does not constitute payment of legal obligations that the government owes.� It was in this setting, with an ongoing debate regarding behavior modification, the well-being of children, and the property-rights of welfare benefits that King v. Smith was filed in federal court in late 1967.

19. Welfare and �The Man� �The truth is that [AFDC] is like a supersexist marriage. You trade in a man for the man. But you can�t divorce him if he treats you bad. He can divorce you, of course, cut you off anytime he wants. But in that case he keeps the kids, not you. The Man runs everything. In ordinary marriage, sex is supposed to be for you and your husband. On AFDC you�re not supposed to have any sex al all� You may have to agree to get your tubes tied so you can never have more children just to avoid being cut off welfare. The man, the welfare system, controls your money. He tells you what to buy and what not to buy, where to buy it, and how much things cost. If things-rent, for instance- really cost more than says they do, it�s just too bad for you.� -Johnie Tillmon, first chair of the National Welfare Rights Organization, 1972 [source: Brutal Need by Martha F. Davis, pg. 6]

20. Poverty Law in the 1960�s Public interest lawyers rose from 650 to 2,500 between 1963 and 1971 By 1967, 36 law schools offered courses in poverty law Between 1965 to 1974, 164 cases on poverty issues were appealed to the Supreme Court, accounting for 7% of cases heard by the Supreme Court [source: Brutal Need by Martha F. Davis, Pg. 10]

21. Center on Social Welfare Policy and Law Leader of the welfare rights movement Litigation began in the South because: The situation was worse for recipients in the South than in the North More litigation successes for civil rights in the South Published Welfare Rights Handbooks in Georgia and Mississippi and training for lawyers across the South

22. Influential Cases Georgia � Anderson v. Schaefer, 1968 Garbus drafted the King complaint based upon this case in Georgia framed on racial discrimination arguments and strict scrutiny �employable mothers� regulation � a mother must accept suitable employment and show that suitable employment is not available to her Part-time or irregular employment wages my be supplemented Holding: discriminates between persons on the basis of their source of income without any relation to their actual financial needs in that persons with income from employment receive less in AFDC benefits than persons with the same amount of income from other sources. Washington D.C. � Smith v. Brd. Of Commissioners use harsh, oppressive, illegal, and humiliating methods in making their investigations as to the question whether a particular recipient of assistance is worthy of that aid. holding no jurisdiction over the internal administration of this agency or any other government department administration of relief involves discretion on the part of the agency entrusted with that duty Motion to Dismiss entered

23. The Parties Plaintiff: Mrs. Sylvester Smith Waitress, earning $20/week, Mother of four Brought on behalf of all mothers of needy children Willie E. Williams � �man-in-the-house� Defendants: Reuben K. King, Commissioner of the State Dept. of Pensions and Security and State of Alabama adopted the regulations designed to affect the policy and to exercise the executive and administrative duties of the Alabama State Department of Pensions and Security formulated a plan in order to receive federal funds under the program. The plan to receive aid for dependent children was required to be consistent with the provisions of the Social Security Act and the Constitution of the United States

24. How the Case Came to Be In 1966, Smith sent a letter to President Johnson complaining about the inadequacy of her welfare grant and the letter was forwarded to welfare officials in Alabama Mrs. Smith received a notice of termination of AFDC payments due to a violation of the substitute father regulation (�Child Ineligible if There Is a Father of Mother Substitute� ) Mrs. Smith refused to provide evidence showing that she was not �in relations� with Willie Williams, a married father of nine Center for Social Welfare and Policy under co-director Martin Garbus

26. Smith v. King � District Court Prepared a �Brandeis Brief� Of the 184 cases where a violation of the substitute father regulation occurred, 182 involved black families Two arguments: �substitute father" regulation violated the Social Security Act and the Equal Protection Clause of the Fourteenth Amendment because the Act�s definition of �parent� was inconsistent with the Social Security Act. Alabama�s substitute father regulation was actually designed to discriminate against African Americans. Ruling for Smith, the State appeals Martin Garbus began working for the Roger Baldwin Foundation under the ACLU Substitute Father Regulation violated the Equal Protection Clause of the 14th because it was an arbitrary and discriminatory classification Alabama was ordered to reinstate ADC payments

27. Code of Alabama Language Alabama requires defendants to provide Aid to Dependent Children financial assistance �on behalf of any needy child who is a dependent child as defined in the Federal Social Security Act or amendments thereto who shall comply with the applicable requirements of this chapter, and who: (a) Has not sufficient income and resources from all sources to provide a reasonable subsistence compatible with decency and health; (b) who meets any one of the following residence requirements - (1) has resided within the state for one year immediately preceding the application for aid, or (2) was born within the state within one year immediately preceding the application for aid, or whose parent or other near relative (as defined in the Federal Social Security Act) with whom the child is living has resided in the state for one year immediately preceding the birth of said child; (c) has not directly or indirectly disposed of or deprived himself of any property for the purpose of qualifying for the benefits of this chapter; and (d) is not receiving any other type of public assistance for which federal matching is available.

28. Main Question: Was the man having sex with the child�s mother?  The Social Security Act defined a �dependent child� as an age-qualified needy child who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with his [family member], in a place of residence maintained by one or more of such relatives as his or their own home Alabama�s definition of a �substitute father�: A man �who is able-bodied man, married or single, is considered a substitute father of all� the children of the applicant mother in three different� situations: (1) if he lives in the home with the child's natural or adoptive mother for the purpose of cohabitation; or (2) if he visits [the home] frequently for the purpose of cohabiting with the child's natural or adoptive mother; or (3) if he does not frequent the home but cohabits with the child's natural or adoptive mother elsewhere Whether the substitute father was actually the father of the child was irrelevant or if he contributed to the child�s support

30. Smith�s Arguments Center files an amicus brief alleging a violation of the Social Security Act, fearing that Garbus� brief would not be sufficient Garbus argues that the Alabama regulation is directed at a dependent child or children whose mother has non-marital sexual relationships with a man, or in general, engages in what the State defines as immoral conduct, and thus will receive no public assistance, therefore, it is a violation of the Social Security Act and the Equal Protection Clause of the Fourteenth Amendment. Congress defined the term �parent� as an individual who owed to the child a state-imposed legal duty of support. Because AFDC assistance was denied, the state breached its federal obligation to furnish aid to families with dependent children. The intent of Congress was not for the children to be denied AFDC assistance solely because their mother was cohabitating with a man. Intent: the federal and state laws were to provide financial assistance to needy children who were deprived of the support and care of one of their parents and was required to conform with the equal protection clause

31. Alabama�s Arguments The substitute father regulation only defines who a non-absent parent is under the Social Security Act and that this regulation gives them the ability to allocate its recourse available through AFDC. The regulation discourages illicit sexual relationships and illegitimate births and it puts families in which there is an informal marital relationship on par with those in which there is an ordinary marital relationship

32. Supreme Court Ruling The Supreme Court refrained from determining if the regulation violated the Equal Protection Clause. In regard to finding a violation the Social Security Act, the Court stated �our conclusion makes unnecessary consideration of appellees' equal-protection claim, upon which we intimate no views.� Intent of Congress Children should receive the assistance regardless of their mother�s actions. Congress intended AFDC to provide economic security for children whom it could not reasonably expect would be provided for simply by securing employment for family breadwinners State�s interest of discouraging sexual relationships was not a legitimate justification for AFDC qualifications immorality and illegitimacy should be dealt with through rehabilitative measures, rather than measure which punish dependent children sexual conduct of the mother was wholly unrelated to any purpose of the assistance statutes Sexual partner of the mother has no obligation to the mother�s children

33. Case repertoire: Goldberg v. Kelly Copyright infringement against Eminem Class action employment discrimination case against President Bush Flight attendants labor dispute against AA Don Imus, Al Pacino, Lauren Bacall, Martin Lawrence, Sean Connery, Michael Caine, Richard Gere, Robert Redford, Penny Marshall, Spike Lee, Michael Moore

34. Biography Partner at David & Gilbert LLP Trial practice at Yale Law School Constitutional Law at Columbia The Association of the Bar of the City of New York. Director, Roger Baldwin Foundation Legal Director, American Civil Liberties Union Associate Director, American Civil Liberties Union

35. Quotes An admirable gesture: 20 percent of his cases are, he says, labors of conscience rather than $400- to $1,000-per-hour cash machines that pad the lifestyle and furnish the apartments in Midtown and Beijing he shares with his wife, Sarina Tang, an art dealer with a gallery in China. The New York Times, A Defender of Controversial, and now of Imus, May 25, 2007 �Marty is a man of incredible integrity and a dynamic champion of freedom of speech. In my mind, he is an American Hero.� � Harvey Weinstein, Founder of Miramax Films in New York Super Lawyers 2006

36. Life after King v. Smith Shapiro v. Thompson One year residency requirement found unconstitutional Equal protection denied by invidious discrimination �Implicit in any such distinction is the notion that indigents who enter a State with the hope of securing higher welfare benefits are somehow less deserving than indigents who do not take this consideration into effect.� Justice Brennan

37. Life after King v. Smith Goldberg v. Kelly Court determined that a pre-termination hearing was required prior to suspending welfare payments Due Process argument Welfare is a property right rather than a privilege

38. Welfare � Property or Privilege? Following the preceding cases, the public�s perception of welfare began to change: Temporary assistance gave way to entrenched dependence The recipients themselves changed from widows to never married, single mothers Society itself saw changes: The Civil Rights Era � 1960s and 1970s The �Me� Era � 1980s and 1990s

39. Attitudes Toward the Poor(Part 4) The Political Inception of the �Welfare Queen� Political candidates began using welfare reform as a tool in their campaigns Welfare reform relied on the characterization of welfare as a handout or charity Programs instituted during this period focused on poverty as an individual choice or consequence of actions, rather than a national systemic problem.

40. Examples of rhetoric used to support welfare reform: "Welfare Promotes Intergenerational Dependence� "Welfare Recipients Do Not Want To Work� "Welfare Programs Are Very Costly� "Welfare Parents Should Play by the Same Rules as Taxpayers� "Welfare Families Are Larger than Non-Welfare Families� "Welfare Mothers Intentionally Get Pregnant in Order To Get an Increased Benefit"

41. The First Reported Welfare Queen "She has 80 names, 30 addresses, 12 Social Security cards and is collecting veteran's benefits on four non-existing deceased husbands. And she is collecting Social Security on her cards. She's got Medicaid, getting food stamps, and she is collecting welfare under each of her names." This quote refers to a Chicago woman, later convicted of welfare fraud. It was said by Ronald Reagan in 1976.

42. Programs Aimed at Ending Welfare Learnfare Family Cap Personal Responsibility and Work Opportunity Reconciliation Act of 1996 Healthy Marriage Initiative

43. Learnfare Wisconsin � 1987 � now repealed Monitored truancy in teens; benefits could be reduced by their full amount Over $3 million in benefits withheld

44. Family Caps Denies additional benefits to children born to mothers already receiving benefits Similar to programs found unacceptable in the 1960s: Punishes the child for the actions of the parent Goes directly against the holding in King, finding that otherwise eligible children could not be denied assistance based on the actions of their parents

45. Personal Responsibility and Work Opportunity Reconciliation Act of 1996 PRWORA lists as it�s purposes: (1) provide assistance to needy families so that the children may be cared for in their own homes or in the homes of relatives; (2) end the dependence of needy parents on government benefits by promoting job preparation, work and marriage; (3) prevent and reduce the incidence of out-of-wedlock pregnancies and establish annual numerical goals for preventing and reducing the incidence of these pregnancies; and (4) encourage the formation and maintenance of two-parent families. PRWORA also created TANF, which replaced AFDC.

46. Temporary Aid to Needy Families Block grants to states to distribute at their discretion Five year maximum eligibility Welfare-to-Work programs Marriage promotion programs

47. The Marriage Solution Although marriage promotion programs were included in the original PRWORA passed in 1996 and subsequent legislation, the �Healthy Marriage Initiative� introduced by George W. Bush is far more encompassing: Authorized a direct funding stream to marriage promotion programs Required that a portion of TANF funds be directed to marriage promotion programs Allowed for preferential funding to married couples

48. Have we come Full Circle? Interview with Evelyn Brodkin from the University of Chicago �Nothing new under the sun,� as she described. Welfare as property protected by due process vs. Welfare as a tool to ensure democratic participation http://dissentmagazine.org/article/?article=532 http://www.uq.edu.au/swahs/welfaretowork/Final/conferencepaperBrodkinfinal.pdf

49. Attitudes Toward the Poor(Part 6): The Survey The ten question on-line survey that the class participated in the last few days was based upon a 2001survey by National Public Radio, the Kaiser Family Foundation, and Harvard University�s Kennedy School of Government. The telephone survey was given to 1,952 people, representing different political parties, races, sex and income levels. The first nine of the questions (and the answer choices) were taken directly from the survey; the full 2001 survey included an additional 60 questions. The full survey and the results can be found at: http://www.npr.org/programs/specials/poll/poverty/summary.html

50. 1. In your opinion, which is the bigger cause of poverty today - that people are not doing enough to help themselves out of poverty, or that circumstances beyond their control cause them to be poor?

51. 3. From this list of possible causes of poverty, which one would you say is the MOST important cause?

52. 4. In general, do you think poor people have higher, lower, or about the same moral values as other Americans?

53. 5. Do you think that poor people find it hard to get work, or do you think there are jobs available for anyone who is willing to work?

54. 6. Which of the following statements comes closer to your own views? Poor people today have it easy because they can get government benefits without doing anything in return, or poor people have hard lives because government benefits don�t go far enough to help them live decently.

55. 7. Do you think government programs that try to improve the condition of poor people in this country are generally making things better, are making things worse, or aren't having much impact one way or another?

56. 8. Here is a list of things the government could do to directly help the poor in America. Please tell me if you support or oppose each. *Percentage supporting each reported below.

57. 9. Here is a list of things the government could do that some people say would reduce poverty in America. Do you support or oppose the government doing each?*Percentage supporting each reported below.

58. 10. Please note: this final question is not from a pre-existing survey, and therefore cannot be compared to the general public. Do you believe that welfare recipients should be required to do the following as a condition of their payments?