Poverty Law Research Paper

The second and related meaning of ‘poverty law’ refers to the legal rights revolution that blossomed in the 1960s that focused on welfare and other poverty issues. Although Americans have always resorted to the judicial system to try to further political goals, the modern era can probably be dated from the court victories of the National Association for the Advancement of Colored People (NAACP) and its offshoot, the Legal Defense Fund (LDF, also known as the ‘Inc. Fund’). The LDF victory in Brown s. Board of Education (1954), where the US Supreme Court declared school desegregation unconstitutional, ushered in an incredibly active period of law reform litigation brought by a wide variety of legal service, public interest, and private lawyers. In addition to civil rights (for women, other racial and ethnic minorities), consumers, and environmental protection, rights were won for the mentally ill, the disabled, children with learning disabilities, health care patients, criminal defendants, prisoners, gays and lesbians, and so forth. The particular concern of this research paper is with lawyers who worked on behalf of the poor.

The two parts of ‘poverty law’—‘welfare’ and poverty lawyers—will be discussed together, because their developments were intertwined.

1. Aid To Single Mothers Prior To The 1950s And 1960s

Programs to provide income support for poor single mothers were enacted by the states between 1910–20. They were part of the Progressive Era Child Saving Movement. Social reformers, alarmed at the number of immigrant children growing up in the urban slums, expanded the definition of child neglect and removed children from what they considered to be baleful living conditions and sent them to either farms in the mid-West or reformatories. Juvenile courts were established at the turn of the century with jurisdiction over ‘delinquent, dependent, and neglected’ children. The latter two were considered ‘pre-delinquent.’ Then, the Child Savers decided that if the home was just poor, but otherwise ‘fit and proper,’ perhaps the mother could be supported with a grant as an alternative to removing the children. The programs were called ‘Aid to Dependent Children,’ (ADC) although popularly known as ‘Mothers’ Pensions.’ In most jurisdictions, they were administered by the juvenile or county courts, assisted by local charities, to make sure that the homes and the mothers were ‘fit and proper.’

This early history set the pattern for the next 40 years, The programs were locally administered, small, and basically restricted to white widows. Other single mothers—divorced, separated, never married, and of color—were not considered ‘fit and proper.’ The consequences of exclusion were severe. Those who were excluded were lumped together with the rest of the ‘undeserving poor’—childless adults, the long-term unemployed, others who were excluded from other assistance programs. The ‘undeserving poor,’ including most single mothers, were thus required to support themselves as best they could in the paid labor market. The establishment of the American welfare state, in 1935, changed the pattern for single mothers only slightly. ADC became a grant-in-aid. The Federal Government assumed about half of the costs and set a few eligibility and procedural conditions, but substantive and administrative control remained with the states and the counties.

AFDC (Aid to Families with Dependent Children, 1962) changed radically starting the late 1950s and early 1960s. The previous system of exclusion col- lapsed and the rolls and costs exploded. In 1950, two million people were on the rolls; in 1960, three million; then 13 million by the end of the 1980s. Costs rose from about $500 million in 1950 to about $23 billion. Most dramatically, however, was the change in the demographic characteristics of the rolls. In streamed the previously excluded—divorced, single, never married, with increasing proportions of nonwhites. There were various reasons for the changes—the massive migration of African Americans out of the rural south to the northern cities; the entry of women into the paid labor force; the severe unemployment in the inner cities, with the accompanying increase in poverty; rising social unrest, disorder, crime, and riots (during the early 1960s, there were riots in 24 cities); the pressure exerted on local governments by the Federal Government’s War on Poverty; the welfare rights movement, and the legal rights movement; the courting of innercity voters by the Democratic Party; and the rise of single mother families. This was the era of the Great Society. A variety of federally sponsored local initiatives and activist groups attacked local institutions and practices, including welfare. The federal courts, War on Poverty lawyers, and welfare rights organizations, such as the National Welfare Rights Organization (NWRO), forced open the state AFDC gates. Welfare became a ‘right’; social movement groups actively recruited potential eligibles, reaching more than 90 percent in the early 1970s. Welfare was now in ‘crisis.’

2. The War On Poverty; Poverty Lawyers

The first legal aid society was established in 1876 in New York City to ease the transition of German immigrants. Thereafter, with the prodding of the American Bar Association, organizations spread serving the various needs of the poor. By the early 1960s, there were 249 offices. However, the individual offices were small and underfunded. The caseload was mostly landlord–tenant, consumer, and family matters, but few divorces, adoption, bankruptcy, and juvenile proceedings. Legal aid offices did not want to get involved in morally controversial issues. The work was individual service cases. There was no attempt at law reform, test case litigation. The first public defender system was established in 1910. The public defender system grew much more slowly than legal aid. In contrast to legal aid which was based on private charity, the public defender depended on public funding.

The big change in legal services for poor came with Kennedy Administration (1961–1963). Legal rights for the unrepresented was an integral part of the New Frontier and then President Johnson’s War on Poverty. The overarching strategy was ‘community action,’ whereby the poor would help themselves (with lots of government support). If the poor were to be empowered, they would need legal help. There was a struggle, however, over the model and control of legal services. Local bar associations pressed for an expansion of their established individual service offices. The alternative model came from the more aggressive, test-case, law-reform activities, primarily, but not exclusively the NAACP and particularly, the LDF. It would be hard to overestimate the influence of the LDF class action, law-reform strategy during this period. Aided by an activist federal judiciary, at the stroke of the judicial pen, so it seemed, legal rights and legitimacy were given to disadvantaged groups. This prospect of significant social change via the legal system had an enormous appeal to activist, young, elite lawyers. The US Supreme Court, led by Chief Justice Earl Warren, and the NAACP litigation seemed the perfect example of what law and lawyers could do. This was a period of enormous social activism, particularly with civil rights. Although there were the usual compromises with the bar associations as to the organization and funding of legal services, the aggressive, law-reform approach became the most important influence in the development of the War on Poverty’s Office of Economic Opportunity (OEO) Legal Services program (1965), as well as in foundation support for consumer, environmental, and public interest law. As we shall see, it also became the focus of the conservative attack on Legal Services.

The specific model for Legal Services was the Ford Foundation’s Grey Areas program, where community-based legal services was visualized as an integral component of the tools necessary for the militant self-assertion of the poor and the disenfranchised. Legal services were offered for a range of activities—education, employment, welfare, health and mental health, individual service, and community development. The dominant approach was using test case litigation to establish new rights and the rule of law in dealing with government administrative agencies. The most important legal needs of the poor were thought to be those that concerned their relations with public service programs such as welfare and housing.

While many ideas and organizations contributed to the development of Legal Services, three stand out. One was the influential article by Charles Reich (1964), then a professor at Yale Law School, who argued that relationships with government should receive the same status and protection as traditional property rights. He coined the term, the ‘new property.’ The other was the articles published by Jean and Edgar Cahn (1964, 1970) which presented the case for neighborhood, activist legal services offices. The third was the support for Legal Services by the American Bar Association which became crucial not only in the contests with local bar associations, but also against the rising conservatism specifically directed at Legal Services.

By 1966, OEO was giving US $20 million to 130 local legal services organizations throughout America. The local offices, in turn, were supported by a half dozen backup centers which provided research support for the litigation activities. From the mid-1960s to mid-1970s, Legal Service lawyers and their allies won a significant number of cases in a variety of areas. The US Supreme Court held that welfare could not be denied simply because the mother cohabited with an unrelated male (the ‘man-in-the-house’ rule); that states could not withhold welfare or provide lower benefits to the poor who migrated from other states. The most significant welfare case was Goldberg s. Kelly (1970) which held that welfare was a statutory entitlement and that before welfare could be terminated, the client had a due process right to a trial-type hearing at the administrative level with the right of judicial review. During this period store-front offices would advise welfare clients of their rights, both statutory and administrative. Aided by lawyers, clients were emboldened to confront the line staff, and, in certain parts of the country, organize mass demonstrations and sit-ins at local offices. Significant victories were won in both federal and state courts—for example, persons were entitled to a due process hearing to contest the repossession of property or eviction from public housing; the mentally disabled had the right to be represented by an attorney in commitment hearings and if confined to an institution, a ‘right to treatment.’ In addition, significant legislation was also passed—e.g. the Voting Rights Act, the Americans with Disabilities Act, the Education for All Handicapped Children Act, which, among other things, sought to guarantee parent participation in school special education decisions.

Goldberg s. Kelly was the high-water mark. Legal Services lawyers tried to establish that the right to a basic income was a fundamental right that deserved the same protection as other fundamental rights, such as speech, religion, and the right to be free from racial discrimination. But the Supreme Court almost immediately took back what it gave in Goldberg. The Court held that welfare regulation was similar to other economic and social matters and could be regulated according to a less exacting standard of reasonableness. Subsequent cases applied the ‘reasonable regulation’ standard in upholding maximum grants regardless of family size, percentage reductions of AFDC grants as compared to grants for the aged, blind, and disabled, lower amounts of school funding in poorer districts, and unannounced caseworker visits as not violating the Constitutional prohibition of unreasonable searches and seizure.

By this time, the reaction to the activism of the 1960s began to take hold. Not surprisingly, Legal Services’ successes against government agencies aroused the hostility of state and local political leaders. Legal Services earned the undying enmity of Ronald Reagan, as governor of California (1967–69) when one of the offices successfully blocked his attempts to cut back on welfare and health care for the poor. From time to time, governors attempted to prevent Legal Services offices from bringing suits against government agencies or on behalf of particular clients (e.g., migrant workers).

3. Change In Welfare

Reflecting the liberal moment, the first response of the Kennedy Administration to the ‘welfare crisis’ was social services to strengthen families and help them towards self-support. The ‘social service amendments,’ however, never provided much money or services. Rolls continued to grow, and the social service approach was abandoned in 1967. Thereafter, the conservative approach took over. The perception was that AFDC, especially at the local level, was out of control. The program was overly complex, administratively impossible, and hence, subject to rampant ‘waste, fraud, and abuse.’ The first reaction of the conservatives was a major overhaul of administration. Many of the complex rules were abolished (most notably, those providing for special grants to meet special needs).

Caseworkers were downgraded to eligibility technicians (often with little more than a high school education) whose main task was to monitor rules and reduce errors. The Federal Government imposed strict error-rate standards on the states, and the states, in turn, imposed strict standards on local county administration. The various state and local programs became increasingly rationalized and computerized, all designed to check eligibility and financial payments. Grants to families were either reduced or, more commonly, not allowed to keep pace with inflation. Average grants declined by 45 percent between 1970 and 1996.

The second response was to return to first principles. Those previously excluded from AFDC were required to work in the paid labor market; they were part of the ‘undeserving’ poor. The conservatives argued that they did not lose their negative moral ascription merely because misguided liberals allowed them into the AFDC program. Beginning in 1967, the first federally imposed work test for able-bodied AFDC recipients was enacted (WIN, the Work-Incentive Program). Liberals vigorously fought WIN, arguing that if non-welfare mothers were not required to work, then it was unfair and punitive to require welfare mothers to work. The conservatives said that these historically undeserving women were morally different from mothers who were either man-dependent or self-sufficient. Over the next 20 years, there was a standoff. The work programs, both state and federal, never succeeded in the sense of either reducing rolls and costs through employment, or setting the poor to work, or imposing sanctions for failure to comply. It was administratively easier and less costly to simply defer the vast majority of work-eligible welfare recipients.

Both sides remained unhappy. The conservatives continued to attack the ‘entitlement state’ on the grounds that there are responsibilities as well as rights in the social contract. Then, in the late 1980s, the liberals changed. They now agreed that AFDC mothers should be expected to work. They gave two reasons. Since the majority of nonwelfare mothers were in the paid labor force, it is only reasonable to expect welfare mothers to work. Second, families are better off, both materially and socially, when the adults are gainfully employed. The Family Support Act of 1988 attempted to strengthen the work requirements. In the meantime, states began to experiment with welfare-to-work programs under waiver from the Federal Government.

The welfare ‘crisis’ continued to boil. President (then candidate) Clinton promised to ‘end welfare as we know it.’ The 1994 mid-term elections produced a strongly conservative Republican Congress, which enacted the Personal Responsibility and Work Opportunity Act of 1996. AFDC was abolished, replaced with Temporary Assistance to Needy Families (TANF). State authority over welfare, already considerable, was increased by converting the federal entitlement into block grants. The work requirements were strengthened significantly, now enforced by two sets of time limits: recipients can no longer receive aid for more than two consecutive years (states have the option of shorter limits); and there is a cumulative 5-year lifetime limit. States are required to move an increasing percentage of recipients into work or work-related activities; states are required to reduce grants for recipients who refuse to engage in work or work activities. In addition, there are many ‘family values’ conditions—for example, requiring mothers under 18 to live with their parents or in adult-supervised settings; requiring cooperation in the establishment of paternity; states can refuse to pay for children conceived while the mother was on welfare; or deny cash assistance for life to persons convicted of a felony (which, in most states, could be possession of a small amount of marijuana). The Act also modifies several other programs which can impact on the wellbeing of the poor—health care, food stamps, disability, and so forth.

The consensus behind the work provisions (as well as the family values) is that welfare encourages dependency with all its attendant ills for both the adults and the children. Tough work requirements, enforced by time limits, will not only reduce welfare costs, but, more importantly, replace the entitlement status and permissiveness of the current system with values of responsibility and self-sufficiency. TANF explicitly rejects education and training in favor of the ‘work first’ strategy. The argument for this strategy is: (a) there are plenty of jobs for those who want to work; (b) by taking any job, even an entry-level job, and sticking with that job, a person will move up the employment ladder; (c) the problem with welfare recipients is that they do not have the motivation or the incentives to leave welfare and enter the paid labor market; and (d) state programs have shown that recipients can be moved from welfare to work.

Many states began implementing their programs between 1993 and 1995. In the meantime, starting in 1994, AFDC, nationwide, began a sharp decline— from 5 million families to 2.8 million, in 1998. State and Federal politicians, of course, are claiming ‘success’ for the welfare reforms. Aside from the fact that the declines in the rolls started well before the initiation of the welfare-to-work programs, the evidence from the state programs is that comparatively few recipients entered the labor market as a result of the programs and they earned very little more than the controls. For example, in the most ‘successful’ program—the standard-bearer for the ‘work first’ strategy— Riverside, California—at the end of the demonstration, two-thirds of the experimentals were not working and over half never worked during the entire 3-year period.

The reasons for the lack of success of the state programs are that the assumptions behind the ‘work first’ strategy are totally misconceived as to who welfare recipients are, why they are on welfare, and the characteristics of the low-wage labor market. Despite the impressive job growth, there has been a stagnation, if not decline, in the wages and benefits for the less skilled, less educated worker. Jobs are increasingly contingent or short-term. Most Americans may be better off, but the bottom fifth of the population is worse off; the average annual income of this group is US $8800 (1999), down from US $10,000 in 1997. Despite the stereotype, most welfare recipients are adults with small families (1.9 children on average), and are on welfare for relatively short periods— between 2 and 4 years. They have extensive labor market connections and many combine welfare with work. But work is uncertain. Jobs disappear, child care breaks down, there are family and transportation problems. They return to welfare because they are usually ineligible for unemployment benefits (leaving a job for family reasons is a ‘voluntary quit’).

The welfare reforms do little, if anything, to meet these problems. Despite the job growth, there is a shortage of jobs for the low-skilled in many inner cities. Welfare recipients are in tough competition. Most lack a high school degree; they have young children; and they often have transportation problems. They have to rely on informal child care, which is often uncertain and still costs between a fifth and a third of monthly income. They do not have health insurance. And many have additional barriers—lack of skills, and networks, poor health, depression, abuse and violence. Although ex-recipients much prefer work to welfare, they are rarely better off financially and still remain in poverty. As the rolls decline, more of the hard-to-employ are left. In the meantime, sanctions are increasing and the two-year time limits on welfare are due. While there is very little data on those who have been turned away from welfare but are not in regular employment, in general, poverty and hardship is increasing for families, with potentially very serious impacts on the children. In 2000, nationwide more than a third of the homeless are families, an increase of more than ten percent since 1985. In the past, AFDC provided at least some financial stability.

4. A Crippled Legal Services

When President Reagan took office in 1981, he proposed no funding for Legal Services for seven successive budgets. The program survived, but funds were sharply cut, forcing significant reductions in staff Consequently, groups of cases (e.g., bankruptcies, disability-benefits) had to be dropped by many offices. The Nixon Administration (1969–74) had also tried to abolish the program and distribute the funds to the states. When that plan failed, the compromise was to create an independent corporation, the Legal Services Corporation (LSC) (1974) and, for the first time, restrictions were imposed on the kinds of cases that Legal Services could handle—school desegregation, the draft (the Vietnam War), abortion, post-conviction civil challenges. The back-up centers were eliminated. On the other hand, the Corporation’s budget was increased dramatically, from US $71 million in 1975 to US $321.3 million in 1981. In that year, the LSC made annual grants to 323 programs which employed 6218 lawyers in 1425 offices providing legal assistance in over 1.2 million matters. That was the last increase. The 1994 Republican Congress made deep funding cuts (from US $400 million to US $278) as part of a three-year plan to abolish Legal Services altogether, and added the most severe restrictions to date. Congress prohibited all class actions; eliminated the collection of attorneys’ fees; prohibited participation in administrative rulemaking, lobbying, litigation on behalf of prisoners, representing drug-related public housing evictions, representing certain categories of immigrants, and challenging state , welfare-reform laws under any circumstances—even if such laws violate the US Constitution or federal laws.

The restrictions went into effect in August 1996, and Legal Services had to withdraw from more than 600 class-action lawsuits across the country. In 1997, Legal Service programs employed about 3500 attorneys. They were assisted by about 59,000 private attorneys, mostly on a pro bono basis. The program closed 1.2 million cases and provided services for 1.9 million clients. In 1998, the budget for Legal Services was actually US $21 million less than in 1980. The American Bar Association has estimated that only about 20 percent of the legal needs of the poor are being met. Thus, at a time when there is growing inequality and poverty, when more than 40 million Americans lack health care, and when the poor are facing one of the harshest welfare reforms in recent history, they are also being denied effective legal assistance.

In 2001 the US Supreme Court (Legal Services Corporation vs. Velazquez (2001)), held that the restriction on legal services lawyers from challenging welfare reform statues or regulations in the course of representing individual clients seeking welfare benefits was unconstituional; perhaps a new chapter on representing the poor will open.

5. The Welfare State In Western Europe

In the US, the current welfare reform can be looked at as a continuation of American welfare policy. From the earliest days of the colonies, the central mission was to separate out the ‘deserving’ poor from the ‘undeserving.’ The latter were defined primarily in terms of the labor market—are they able-bodied, could they work? If so, then no welfare. The mission of welfare policy was to exclude, rather than include. Excluded were the deviants—the moral deviants—and this was carried out at the local level. In the USA there is no concept of ‘social citizenship.’

Europe could not have been more different. In the decades following World War II, until the oil shocks of the 1970s, despite the differences between countries, the basic approach was universalism, inclusion. There were significant protections and supports for workers, and generous benefits for those who were not in the labor market. The basis for the European welfare state was full-employment prosperity, that is, the system was successful as long as most people were not drawing significant benefits, but rather, were working and contributing to the welfare state. It was this prosperity that allowed the nationalist, peak, corporatism bargaining—concertation—between labor and government. Labor would agree to wage restraints in return for jobs and benefits.

By 2000, much had changed. The demographics of the welfare state have changed to an aging population, greatly increasing pension and health care costs. In addition, for most of the Continent, the economies have been sluggish with persistent long-term employment. Increasing proportions of the long-term unemployed are the vulnerable—youth, immigrants, lone mothers. The current dilemma is that with the high rates of persistent, long-term employment, demands are being made on the welfare state. But under the European Union monetary restrictions, neither tax increases nor budget deficits can be used to finance the increased demands.

Thus far, efforts to develop social protections at the European level have not been successful. There is now pretty much of a consensus that negative integration—the removal of trade barriers, the free flow of labor—is far different than positive integration which requires fundamental changes in government structures, decision making processes, claims to legitimacy—and, most important, solidarities across borders. In fact, the present differences among European welfare states are so significant, that most commentators believe that national institutions are too embedded to converge on a common approach.

When the conservatives were in office, the argument was made that the reason for the sluggish economies is that the generous welfare state has made labor too costly, thus preventing job growth. In the global economy, the foundations of the welfare state—a society of steady, well-paying jobs—are being replaced by major changes in both economic structures (low paying, part time work) and demographics (declining proportion of workers as compared to retirees), the disabled, an increasing proportion of women in the paid labor force, the rise in lone parent families, and immigrants. The foundations of the present welfare state—the intact family, male breadwinner—are no longer valid. The ‘passive’ solutions of unemployment—early retirement and long-term unemployment and disability—are no longer feasible. Pointing to the US and UK experience, conservative politicians and EU officials argue that labor has to become more ‘flexible’ and labor market protections have to become more ‘active’—that is, encourage people to re-enter the labor market by shortening the period of unemployment benefits, requiring training, education, and employment, raising the retirement age, and tightening disability.

The voters rejected these arguments and the Social Democrats have replaced most conservative governments. While promising to protect the welfare state, they are acutely aware of the constraints on budget deficits or raising taxes. Some countries—Sweden, Denmark, and the Netherlands—have been able to emerge from the recession in the early 1990s, maintain or re-establish concertation between major employers and labor, and protect their systems of social protection. In other countries, the Social Democrats are struggling. There have been some changes—the proportion of unemployed who qualify for benefits has been declining, there is more use of means-tested benefits, the reduction of benefits in some jobs, the abandonment of centralized wage bargaining in some countries. Most countries are trying to replace ‘passive’ benefits with an ‘active’ labor market policy. But so far, these changes have been incremental, and the basic welfare states are still intact. It has proven easier to change markets than social welfare states.

While there is still strong social support for basic welfare state programs, the effective, political resistance, it is argued, basically applies to the existing workforce, not the excluded workers and the vulnerable groups. In the meantime, even though transfers may not have been significantly reduced, we see the quiet undermining of the welfare state—the breakup of national collective bargaining, the growing disparity in wages, the spread of low-wage work, and hostility towards immigrants. The deterioration of the labor market will undermine the social welfare provisions. As pointed out, it was the combination of earnings and benefits that accounted for the comparative equality in Europe. In the final analysis, the foundation of families rests on the economic viability of the adults. Two things are happening in the labor market. As noted, large numbers of the vulnerable population are increasingly facing more-or-less permanent exclusion from the labor market. Others will be increasingly forced back into the labor market, but good, permanent jobs will not be there. An effective active labor policy requires both a large public investment and an integrated infrastructure of labor market institutions, a commitment to some basic income equality, together with a strong safety net. As a growing number of people become dependent, the political pressure increases to restrict income support for the able-bodied. Although there is an increase in need-based and conditional benefits, and there seems to be still strong support for retirees and for children, the crucial question is how solid is the support for the able-bodied? At the present time, welfare policy in Western Europe is at an impasse.

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