Welfare and Rights before the Movement: Rights as a Language of the State

By Tani, Karen M. | The Yale Law Journal, November 2012 | Go to article overview

Welfare and Rights before the Movement: Rights as a Language of the State


Tani, Karen M., The Yale Law Journal


ARTICLE CONTENTS

INTRODUCTION

  I. THE SOCIAL SECURITY ACT OF 1935: A NEW DEAL FOR POOR RELIEF

 II. SECURITY THROUGH RIGHTS
     A. An "Earned Right": Social Insurance
     B. From Need to Right: Rights Language in Public Assistance
        Administration

III. THE ENDURING PROBLEM OF THE LOCAL

 IV. TO ADMINISTER PUBLIC ASSISTANCE AS A MATTER OF RIGHT
     A. Administration by Indirection
     B. Rights Language in Context
     C. Rights Language in Administration

  V. RIGHTS AS A LANGUAGE OF THE STATE
     A. Rights as Quid Pro Quo?
     B. Rights as the Language of an Ambitious National State

CONCLUSION

INTRODUCTION

In the fall of 1960, the leadership of the federal Social Security Administration (1) was in the unenviable position of having to review, and potentially to revoke, a state's multimillion-dollar federal public assistance grant. Louisiana had amended its Aid to Dependent Children (2) plan (3) to, in effect, exclude most illegitimate children. (4) Nearly 23,000 children-the vast majority black--lost their benefits. (5) National outrage ensued. Newspapers chastised Louisiana for its "mean, uncivilized approach." Public welfare and civil rights organizations demanded that the federal agency recognize Louisiana's noncompliance with federal law and hold a formal hearing. (6) News of the scandal reached as far as Northeast England, where concerned councilwomen arranged to airlift baby food into New Orleans. (7)

Louisiana temporarily retreated from its position, cowed by media condemnation and the eventual threat of federal defunding, but the episode was an indictment of the federal agency, which had responded with too little, too late. When the Social Security Administration finally held a hearing, months after learning about the problem, it did not revoke the state's grant. Afterward, states continued to devise ways to reduce and to reconfigure their welfare populations, confident that they could elude federal sanction. The episode was also a lesson for the burgeoning welfare rights movement, which developed alongside these restrictive state laws and drew inspiration from the black freedom movement. (8) It proved, as a bright intern named Bob Cover explained to a welfare rights think tank in 1967, that the federal agency lacked either the will or the tools to protect claimants' rights. (9) Despite knowledge of many potentially illegal state and local welfare practices, the federal agency had entertained only sixteen conformity hearings in the history of the federal-state public assistance arrangement, and had no process for providing individual redress. (10) For purposes of both vindicating existing rights and establishing new ones, the federal agency was a dead end. Cover urged instead a turn toward federal courts, fueling a fire that was already blazing through law schools, community organizations, and neighborhood law offices. (11) Before the decade was out, "poverty lawyers" would be advancing their clients' claims before the highest court in the land. (12)

Had Cover observed the scene just twenty years earlier--before "welfare" became synonymous with black single mothers, before states competed to enact the most restrictive policies, and before public welfare workers commenced treating poverty as a disability to be professionally expunged (13)--his impression of federal welfare administrators would have been different. At that moment, the federal agency's Assistant General Counsel, A. Delafield Smith, was broadcasting to every audience he could find that a right to public assistance, and ancillary rights of fair and equal treatment, were inscribed in positive law. As soon as "Government" took action to assure a means of livelihood for broad classes of needy individuals, "rights and privileges ... accrue[d]," he explained to a conference of fellow federal government attorneys in 1938. (14) One might even conclude, he told the 1939 Annual Meeting of the American Schools of Social Work, that "participation in the public bounty" in time of need had become "a right or privilege" of "citizenship. …

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