UCLA National Black Law Journal

Title Invisible Woman - Role-Perception in Welfare Litigation

Permalink https://escholarship.org/uc/item/8d29085d

Journal National Black Law Journal, 2(3)

ISSN 0896-0194

Author Kulzer, Barbara Ann

Publication Date 1972

Peer reviewed

eScholarship.org Powered by the California Digital Library University of California INVISIBLE WOMAN? ROLE-PERCEPTION IN WELFARE LITIGATION

By BARBARA ANN KULZER Associate Dean, Professor of Law, Rutgers University School of Law

... the composition of the poor is changing so that the poor more and more are those who gain least from economic growth: the aged, the disabled, female-headed families, and those whose limited skills seem unlikely to be demanded by an increasingly complex industrial system.

Poverty Amid Plenty, The Report of the President's Commission on Income Maintenance Programs 37 (1969).

held belief that "welfare is a 'gratuity' T HEonly COMPOSITION changing, butof itsthe numberspoor is notare furnished by the state, and thus may be subject to whatever conditions the state increasing, if those appearing on the wel- '7 fare roles are any indication. Over 14 sees fit to impose." million persons are recipients of public assistance money payments this year.' 1. 10 Welfare in Review 77 (May-June 1972). They include the aged, the disabled, the 2. There are two major forms of public assistance: gen- eral assistance, financed entirely by state and local blind, and most of all, families with de- units; and categorical assistance. Categorical assistance 2 programs are defined by the Social Security Act and pendent children. Most receive assist- involved federal financial assistance to the state plans meeting federal standards. There are four major types ance through a combination of Federal, of categorical assistance: Old Age Assistance (OAA); Aid to the Blind (AB); Aid to the Permanently and state and local programs under which Totally Disabled (APTD); and Aid to Families with the Federal government assumes about Dependent Children (AFDC). See 42 U.S.C. §§301-06; 601-09; 1201-06; 1351-55 (1965). The AFDC provisions were extensively amended in 1968. See 42 U.S.C. §§601- 55 percent of the cost.3 The largest single 44 (Supp. V, 1970). category of assisted programs is known AFDC,which isthe particularconcern of this article, is by far the largest of the four programs. In 1969, there as Aid to Families with Dependent Chil- were more recipients of AFDC than of aid under all other categorical programs combined. See Public As- dren, or, in welfare jargon, AFDC. The sistance Statistics, 8 Welfare in Review 30, 31 (Mar.- Apr. 1970). In the first quarter of 1972, almost 11 overwhelming majority of publicly as- million persons were receiving AFDC payments, 10 Wel- fare in Review 77 (May-June 1972). sisted families under this program are 3. N.Y. Times, Aug. 16, 1971, at 36, col. 1. 4 4. In the 1960's, fathers were absent from the home in female headed families. They are the more than 75% of the families in the AFDC caseload. D. Eppley, The AFDC Family in the 1960's, 8 Welfare specific concern of this article. in Review 8, 11 (Sept.-Oct. 1970). 5. Wyman v. James, 400 U.S. 309, 344 (1971) (dissenting Whether receiving AFDC assistance opinion of Mr. Justice Marshall); C. Reich, Midnight Welfare Searches and the Social Security Act, 72 Yale or some other form of aid, people who L.J. 1347, 1349-50 (1963); Note, Rehabilitation, Inves- tigation and the Welfare Home Visit, 79 Yale L.J. 746, receive welfare have asserted in recent 758 (1970). 6. See Graham v. Richardson, 403 U.S. 365 (1971). years the proposition that they ought not 7. See C. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245 (1965). be required to pay for it in the frequently The Supreme Court, however, seems to be conflicted on thisissue. Compare Wyman v. James, 400 U.S. 309, 321- exacted currency of their constitutional 22 (1971) in which the Court observed that "what Mrs. 5 numbers, they have James appears to warn from the agency which PO',idts rights. In increasing her and her infant son with the necessities of life is resorted to the courts for vindication, to the right to receive those necessities upon her own in- formational terms," with Graham v. Richardson, 403 such an extent that the Supreme Court U.S. 365, 374 (1971) where it was observed that "this Court now has rejected the concept that constitutional has commented upon the "widening liti- rights turn upon whether a governmental benefit is '6 characterized as a 'right' or as a 'privilege'," citing, gation in this area." And they have often inter alia, Shapiro v. Thompson, 394 U.S. 618 (1969) and Goldberg v. Kelly, 397 U.S. 254 (1970), both wel- been successful, despite the commonly fare cases. PAGE 258 THE BLACK LAW JOURNAL PAGE 258 THE BLACK LAW JOURNAL The list of victories is impressive, but on most of these issues, but where it has, not unbroken. The Supreme Court has it has acted unfavorably to the mother, held that termination of welfare benefits and the consequence has been a loss of before a fair hearing violates the due pro- benefits for her children.24 This contrasts cess clause of the Fourteenth Amend- 8 8. Goldberg v. Kelly, 397 U.S. 254 (1970); Wheeler v. ment; that residency requirements are in- Montgomery, 397 U.S. 280 (1970). 9. Shapiro v. Thompson, 394 U.S. 618 (1969). valid because they obstruct the constitu- 10. Graham v. Richardson, 403 U.S. 365 (1971). 9 11. Statutes and regulations are generally first examined to tional rights to travel from state to state; see if constitutional questions can be avoided. Ash- wander v. T.V.A., 297 U.S. 288, 346-48 (1936). See and more recently, that refusal of welfare also the dissenting opinion of Mr. Justice Marshall in Wyman v. James, 400 U.S. 309, 338 (1971). Townsend benefits to aliens violates the equal pro- v. Swank, 404 U.S. 282 (1971) held that an Illinois statute and regulation including needy and dependent tection clause of the Fourteenth Amend- 18 to 20 year olds attending high school or vocational 10 school in AFDC benefits, while excluding those attend- ment. ing a college or university, were in conflict with the Social Security Act and for that reason were invalid Other Supreme Court decisions were under the Supremacy Clause. The equal protection issue was therefore not reached, although the Court expressed based on the Social Security Act," al- doubt whether the Illinois classification could withstand the strictures of tileEqual Protection Clause. though constitutional issues were argued 12. In King v. Smith., 392 U.S. 309 (1967), the three-judge 12 district court had expressly held that Alabama's "sub- and passed upon below. Thus, denial of stitute father" regulation violated the Equal Protection Clause of the fourteenth amendment. Smith v. King, payments to the children of a mother who 277 F. Supp. 31 (MD. Ala. 1967). "cohabits" in or outside her home 13. King v. Smith, supra note 12. with 14. Lewis v. Martin, 397 U.S. 552 (1970). The three-judge violates the So- district court in this case had upheld California's in- any "able-bodied man" come contribution regulation on both statutory and con- cial Security Act.13 And states may not, stitutional grounds. Lewis v. Stark, 312 F. Supp. 197 (N.D. Cal. 1968). The question of the obligation under for the same reason, impute to a needy state law of non-adopting stepfathers remains open. Lewis v. Martin, supra, at 560. child income not actually received from 15. C. Reich, supra note 7. 16. AFDC fathers would be subject to the same intrusions a "man assuming the role of spouse" (a as mothers, theoretically. As a practical matter, how- ever, AFDC father are so scarce that the rules and MARS, somewhat inappropriately, in regulations apply almost exclusively to women. See text 4 accompanying fn. 4, supra. welfare usage).' 17. See, e.g., J. Handler & M. Rosenheim, Privacy in Wel- fare: Public Assistance and Juvenile Justice, 31 Law & Still, many recipients are subjected to Contemp. Prob. 377 (1966); M. Rosenheim, Vagrancy Concepts in Welfare Law, 54 Calif. L. Rev. 511, 552-56 procedures and controls not imposed on (1966). 5 18. See Wyman v. James, supra note 5. other citizens.2 One group in particular 19. Id., at 326; C. Reich, Midnight Welfare Searches and the Social Security Act, 72 Yale L.J. 1347 (1963). seems to have fared less well than others, 20. J. Handler & M. Rosenheim, supra note 17, at 388, point out that the "suitable-home" policy runs primarily particularly when pressing rights of a to mothers whose sexual conduct elicits community dis- approval. See also CCH Poverty Law Reports 1230 personal and private nature. It is com- (1968). The Social Security Act requires that a state 16 plan for aid and services to needy families with children prised of AFDC mothers. must provide that "where the state agency has reason to believe that the home in which a relative and child The welfare mother's home has been receiving aid reside is unsuitable for the child because of the neglect, abuse, or exploitation of such child it subject to continuing review by state of- shall bring the condition to the attention of the appro- 17 priate law enforcement agencies." 42 U.S.C. § 602 ficials. Her home may be visited with- (Supp. V. 1970). 8 21. The Social Security Act requires that the state shall out her consent; she may be subject to provide: (A) For the development and implementation of a unannounced midnight or predawn raids program under which the state agency will undertake - (i) in the case of a child born out of wedlock who a practice as yet unreviewed by the is receiving aid to families with dependent children, 19 to establish the paternity of such child and secure Supreme Court; she may be required to support for him, and (ii) in the case of any child receiving such aid who maintain a "suitable home" as defined by has been deserted or abandoned by his parent, to 20 she be so careless secure support for such child from such parent (or a state agency; should from any other person legally liable for such sup- port), utilizing any reciprocal arrangements adopted as to bear a child, until recently, she with other States to obtain or enforce court orders may have been forced to bring a paternity for support .... 42 U.S.C. § 602 (a) (16) (Supp. V, 1970). This is known action in order to obtain benefits for her as the NOLEO (Notice to Law Enforcement Officers) 2 provision. Some states had made the mother's coopera- baby. ' Sometimes she is threatened with tion a condition of eligibility. See I CCH Poverty Law Reports 1310 (1968). Such state provisions were chal- "neglect" proceedings leading to the loss lenged in the federal courts where they were found to 22 conflict with the Social Security Act. See e.g., Doe v. of the baby or her other children. Shapiro, 302 F. Supp. 761 (D. Conn. 1969); Meyers v. Juas, 327 F. Supp. 759 (D. Ore., 1971). AIf'd niern. 404 Should she permit her family to become U.S. 803 (1971); Saiz v. Goodwin, 325 F. Supp. 23 (N. Mex. 1971) vacated and remanded, 450 F. 2d 788 (1971) too large, she and her children are "pen- See also Comment, AFDC Eligibility and the Manda- tory Paternity Suit, 10 J. Fam. L. 174 (1970). alized" by the maximum grant regula- 22. C. Reich, supra note 7, at 1247. 2 3 23. Dandridge v. Williams, 397 U.S. 471 (1970). tions in effect in many states. The Su- 24. See Wyman v. James, supra note 5. Refusal to consent to the home visitation resulted in cessation of aid. Id. preme Court has not rendered opinions at 318. THE BLACK LAW JOURNAL PAGE 259 THE BLACK LAW JOURNAL PAGE 259 strikingly with the Court's holdings and pected. And the median family income attitudes in cases where the children as- is predictably low: 51 percent of the sert rights of their own 25 and in cases in median for all husband-wife families, or, which the claimed right is not of a per- for the female-headed family, about private nature. The mother $4,300. Over a third have incomes under sonal or 35 seems almost invisible - a non-person $3,000. with no proper interests of her own, sub- The above profile is of all families ject at almost every turn to the judg- headed by women. The picture of the ment of state officials on even the most AFDC family has also been drawn. 36 The intimate details of her life. The constitu- category designated for AFDC assistance tional "penumbra of privacy" discovered is the "dependent child," who is an age- in Griswold v. Connecticut26 fades at her qualified needy child who "has been de- door. prived of parental support of care by rea- It is the purpose of this article to ex- son of the death, continued absence from amine the plight of the mother of the the home, or physical or mental incapa- AFDC family and to ask how she, as an city of a parent," and who is living with individual, fares in the struggle for wel- any one of several listed relatives (who fare rights. are also entitled to aid). 37 Thus, the ab- sence of a mother may qualify the child The Invisible Woman: Who is She? for such assistance. But at the end of the the father who was absent Families "headed" by women (women 1960's, it was in over three-fourths of the families. are regarded as heading families only in About half the AFDC families38 were, the absence of a man 27) comprised, in at the end of the last decade, Black and 1968, 81 percent of all "single parent" other races; half were white. More AFDC families. 28 Female-headed families in- families came from the South than any- cluded 90 percent of all single parent where else, but fewer than half had lived families with children under 18.29 Al- though only a little more than a quarter of female-headed families receive public 25. Dandridge v. Williams, supra note 23, may be seen as assistance, most of the 1.4 million fam- an exception, since the "surplus" children in a "too- large" family were asserting a right to have their needs ilies receiving public assistance are head- met to the same extent as children in smaller families. 3 It is nevertheless the case that the purpose of the ed by women. 1 maximum grant limitation included control of repro- duction. See infra, notes 98-128 and accompanying text. Families headed by women, tend, espe- 26. 381 U.S. 479, 483 (1965). 27. In this connection, the reflections of Angela Davis on cially if they are Black, to be concen- the Moynihan report are very interesting. See A. Davis Reflections oj the Black Wonman's Role in a Commu- trated in the central cities of the largest nity of Slaves, The Black Scholar (Dec., 1971). 31 28. J. Cowhig, Characteristics of Families Headed by Wom- urban areas. And the Black families en, March 1968 8 Welfare in Review 16 (Jan.-Feb. 1970). tend to be larger and the mothers young- 29. Id. 32 30. Id., and see supra note 4. er. But the vast majority of families of 31. Id. 32. Id., at 16-17. both races included children under 18 33. Id., at 17. 34. Id. Widows historically have been the favored group in when the mother was 44 or younger, and public assistance plans. See M. Rosenheim, supra note 17, at 553-54. substantial numbers had children under 35. J. Cowhig, supra note 28, at 17-19, noting a possible 18 even when the mother was 64 or correlation between low income and family status: 33 The comparatively low income received by families headed by women and comparatively lower educational younger. attainment of these women may be both a cause and an effect of their family status. That is, low income and About a quarter of the family heads low levels of education may contribute to marital in- the husband was not stability; once separation, divorce, or desertion has oc- are married, but curred, the chance of improved socio-economic pos.tion living at home because of separation, are diminished. Id.,at 19. military service, institutionalization, or 36. D. Eppley, supra note 4, from whih the following de- scription has been summarized, employment elsewhere. About a fifth of 37.42 U.S.C. § 601 (Supp. V, 1970). 38. The number of children in the "typical" AFDC Family the women were divorced. A tenth had has by a statistical quirk, been overstated. U.S. Depart- 4 ment of Health, Education and Welfare statistics indi- never married. The rest were widowed. cate a median of 2.8, due to statistical conventions. But. it has been suggested, "The typical welfare family of a According to her age and race, her mother and three children is a statistical artifact - she has but two." L. Platky, Measures of AFDC Fam- educational level varies, as might be ex- ily Size, 10 Welfare in Review 61, 65 (May-June 1972). PAGE 260 THE BLACK LAW JOURNAL PAGE 260 THE BLACK LAW JOURNAL in more than one state. The mother's work incentive and training programs median age was 33; the median number have been created or proposed to aid of years of education was 10.1. Her level needy adults who will in turn set a good of occupational skills tended to be low. example for their children. 45 When the target of such programs is the welfare The Welfare Mother and Employment mother with young children, however, the programs are of dubious efficacy unless • Much of the popular resentment of adequate day-care facilities can be made welfare stems from the suspicion that the available. Assuming that they will be, virtuous and working citizens are sup- can or will the welfare mother participate 4 porting the non-working and probably in the work and training programs? unvirtuous. The welfare mother is almost At the end of the 196I's oveT 13 per- assumed to be morally suspect and hence '39 cent of welfare mothers were gainfully "unworthy. Indeed, this attitude seems employed in regular or part-time jobs. to be reflected even in the Supreme 40 Seven percent were either enrolled in Court. In Wyman v. James, the major- work or training programs, or waiting to on the plaintiff's ity offered reflections be enrolled in the Work Incentive Pro- seem gratui- motives and character which gram (WIN). Over 35 percent did not tous in view of the issue before the Court work because they were needed at home;. (constitutionality of home visits), sug- 36 percent did not work because they gesting that the plaintiff "appears to want from the agency which provides her and her infant son with the necessities for life the right to receive those necessities 39. M. Rosenheim, supra note 17, at 554, One in seven upon her own informational terms... AFDC mothers is employed full or part time. H. Ober- hey. AFDC Mothers: Employed and not Employed, 10 The tone of the language is hardly im- Welfare in Review 58 (May-June 1972). 40.400 U.S. 309 (1971). partial. 41. Id. at 321-322. 42. C. Reich, supra note 7, at 1245-46. 43. Note, Rehabilitation, Investigation and the Welfare The poor, it has been observed, pro- Home Visit, supra note 5, at 757. an irresistible opportunity for mor- 44. Id., at 746. The AFIC program with its adult popula- vide tion drawn from an age group presumptively employ- 42 Particularly this is true when able is especially vulnerable to criticism. See J. Handler alizing. & M. Rosenheim, supra note 17, at 387. Since most of their poverty is alleviated somewhat by the family heads are women, however, a severe con- flict arises between the goals of the program and pub- public assistance - which is always to lic perceptions and criticism. The state purpose of AFDC is to encourage "the care of dependent children be carefully distinguished from social in- in their own homes . ., to help maintain and strengthen family life ...." 42 U.S.C. § 601 (Supp. V, 1970). Tra- surance: ditionally, the mother's role is seen as in the home with her childien. However, AFDC is also to encourage "maximum sell-support and personal independence con- While social insurance is geared to the sistent with the maintenance of continuing parental care ad protection." Id. to further this goal, the WIN (work average needs of large numbers of people, incentive) program was itstituted. Under the WIN pro- gram, welfare recipients are referred for work or train- public assistance is directed to the peculiar ing. Each member of an AFDC family aged 16 or over needs of individuals whose financial de- who. is not in school full time is eligible except (1) re- cipients who are ill, incapacitated, or of advanced age; pendence is supposedly caused by personal (2) recipients whose remoteness from a project pre- inadequacies rather than by general social cludes effective participation; and (c) recipients whose 43 presence in the home is required because of the illness or economic flaws. or incapacity of another family member. Recipients may request referrals, and if they do, they must be re- ferred "unless the State agency determines that partici- Social insurance programs, because they pation . . . would be inimical to the welfare of such person or family." 4:2 U.S.C. § 602 (a) (19) (A) (iv- vii) (Supp. V, 1970). See Comment, Public Welfare involve fixed contributions to an insur- WIN Program: Arm-Twisting Incentives, 117 U. Pa. L. Rev. 1062 (1969). ance scheme, shield their beneficiaries HEW regulations add to the list of those who cannot because these persons can be referred persons "whose presence in the home is re- from criticism 4 quired because adequate child care services cannot be be said to have "earned" the benefits. lurnise6." 34 Fed. Reg. A,353 V,'3). 45. Note 44, supra. See also J. Handler & M. Rosenheim, Public assistance, by contrast, is thought supra note 17 at 381; J. Handler & E. Hollingsworth, Work, Welfare, antd the Nixon Reform Proposals, 22 of as a handout to people who ought to Stan. L. Rev. 907 (1970). 46. See J. Handler & E. Hollingsworth, supra note 45; 1. be working. Cox, The Employment of Mothers as a Means of Fam- ily Support, 8 Welfare in Review 9 (Nov.-Dec. 1970); Because work is thought to engender P. Levinson, How Employable Are AFDC Women? 8 Welfare in Review 12 (July-Aug. 1970); E. Prescott, self-esteem and is known to stpply at W. Tash & W. Usdane, Training and Employability: The Effects of MDTA on AFDC Recipients, 8 Welfare least a measure of independence, various in Review I (Jan-Feb., 1971). THE BLACK LAW JOURNAL PAGE 261 THE BLACK LAW JOURNAL PAGE 261 lacked skills, were incapacitated, or could all fully employed women earned, in not find jobs.47 1967, enough to support a family of four Studies reveal what common sense at slightly above that year's poverty level would indicate: the lack of child care is of $3,500.59 Expectably, if the mother the first obstacle to the employment of is Black her situation is even worse. More women. 48 Some 60 percent of AFDC non-white mothers of young children 6 mothers have children under six years of work, but they earn even less. 0 age in their care,49 and their median edu- Still, more than a third of AFDC fam- cational level and occupational skills are ilies leave the rolls each year. And the lower than for the general population. 5 average length of time of welfare is just However, the personal characteristics of a little more than two years. Somehow the AFDC family heads differ little from or other, these families must have become those of other poor people51 and under- self-supporting. The reason may be the standably the welfare mother may be re- return of the father, a re-marriage, the luctant to leave her small children.5 2 If growth of the children, or the attainment 61 she does and finds a job, she would prob- of employment. ably like to feel she has thereby improved That the welfare mother manages to her family's situation. But there is often a remove her family from the AFDC rolls "tax" on working, which makes it virtu- in two years, by whatever means, is a ally impossible to rise above the welfare level of existence.5 If these two impedi- ments were removed-the lack of child 47. D. Eppley, supra note 4, at 14. H. Oberheu, supra care facilities and the tax imposed upon note 36, indicates that employed AFDC mothers are 'more likely to be Negro than White or any other race, her earnings in the form of welfare deduc- even though the unemployment rate is higher for Negro women in the general population." Id. at 61. tions - many more welfare mothers 48. E. Prescott, W. Tash & W. Usdane, supra note 45, at 1. 49. 1. Cox, supra note 46, at 9, 15. would probably wish to work and be 50. Id., at 9. 51. E. Prescott, W. Tash & W. Usdane, supra note 46, at 1. trained for work.- 52. But see J. Handler & E. Hollingsworth, supra note 45, at 919. Their Wisconsin study indicates that mothers Occupational training expectably in- with pre-school children seemed to want to have a job 55 even more than mothers whose children were in school. creases employability and income. Once 53. See I. Cox, supra note 46, at 15: In most states in 1967, the amount of the AFDC pay- in the work force, however, welfare ment to the family was reduced by the recipients' net earnings, with some allowance for work expenses. mothers are subject to the same adverse Therefore, a woman did not improve the economic situation of the family unless she could earn more conditions confronting the general popu- than the amount of the assistance payment. However, 20 States limited the amount of the AFDC payment lation of working women: low wages and by setting a maximum on the amount that could be 6 paid but allowed other family income to supplement low level occupations.- Those same con- the AFDC payment up to the total amount of the family's need as determined by the state's standards. ditions are probably responsible for so These states, therefore, offered money incentives for employment, and higher proportions of AFDC moth- many women being "on welfare" to begin ers were employed in them. The median proportion employed in states in which earnings increased fam- with. Even full-time, year-round women ily income was 28.3 percent, as compared with a median of 10.5 percent of mothers employed in states employees achieved a median annual sal- with a 100 percent tax rate of earnings. See also J. Handler & E. Hollingsworth, supra note 45, ary of only $4,500 in 1967, while the at 927-28. Their Wisconsin study showed that to make working worthwhile, the full time wage would have to median salary of fully employed men be more than the welfare grant plus expenses, since 5 . everything over expenses in that state was to be taxed was $7,182 Add to this gross disparity at 100 percent. Only 5 percent of those interviewed in earnings between full-time working were capable of earning wages even at the breakeven level. the 54. Over half the respondents in the Wisconsin study were men and full-time working women positive about working if good child care service was presence of children, and the problem of available. J. Handler & E. Hollingsworth, supra note 45, at 918. See also I Cox, supra note 46, at 15. financial independence for women is in- 55. E. Prescott, W. Tash & W. Usdane, supra note 46, at 5. 56. I. Cox, supra note 46, at 10. tensified. Only seven percent of employed 57. Id., at 11. After MDTA training, men averaged more than $.90 an hour more than women. E. Prescott, W. mothers with children under the age of Tash, & W. Usdane, supra note 46, at 4. Despite these gross disparities in earnings, the high percentage of fe- six worked full-time the year round in male enrollment in federal work and training programs 8 has been questioned as indicative of a failing to recog- 1967.- Even if they worked full-time nize the importance of the male as "primary breadwin- ner." M. Rosenheim, supra note 17, at 537-39 & n. 95. year round, many mothers with small 58. I. Cox, supra note 46, at 11. 59. Id. children would be unable to lift them- 60. Id., H. Obeshev, supra note 47, indicates that more Black than other AFDC mothers work. selves out of poverty. Not even half of 61. Id., at 14-16. PAGE 262 THE BLACK LAW JOURNAL PAGE 262 THE BLACK LAW JOURNAL rather remarkable achievement. Jiow re- Nevertheless, it is generally assumed markable can be illustrated by measur- that the single parent family, and partic- ing the profile of her as sketched above ularly the AFDC family, suffers prob- against that of a woman who is in the lems regarded as special, rather than best position adequately to support her general, whether or not due to personal 67 family. She should be: inadequacies. The personal characteris- tics of the AFDC families are not mark- middle-aged; have no children under 6; edly different from those of the poor at have a high school or, preferably, a col- 68 lege education; work full time in a pro- large, however. It is the receipt of pub- fessional, technical, or upper level clerical that sets them apart, and is 62 lic assistance occupation; and be white. thought to justify the benevolent intru- If public assistance is directed to the sions made by the state into their lives. peculiar needs of individuals whose fi- These intrusions are variously explained. nancial dependence is supposedly caused Professor Reich cites the theory that "since all forms of welfare by personal inadequacies, and such in- represent the adequacies provide the justification for expenditure of public funds, the public social overseeing on the part of the state may properly interest itself in these funds then it may even after they have reached the hands through its welfare system, '69 be questioned whether the welfare mother of the beneficiaries. Another is that the is the appropriate target for such over- intrusions are necessary to provide the seeing. As the writer of the "prescription various services built into the AFDC for success in family support" observed program, services aimed at "fostering ... subject self-care, self-support and strengthening of the ingredients, "[f]ew are '70 to choice and none guarantees 100 per of family life." cent success, including the last."63 The services which necessitate the ben- The reason why so many "female- evolent intrusions and indeed the entire headed" families receive AFDC assist- AFDC program have been created and ance must be, to a large extent, built into are implemented with the well-being of the structure of society. Scarcely half of the children particularly in mind. The all fully employed women, whatever their children are the primary beneficiaries of personal qualifications, can earn enough the system. Such a priority is self-evident, to support four people. And that does and where the issue is the Social Security not take into account the problems of Act, the position of the Supreme Court child care faced by so many welfare has been generally favorable to the chil- mothers with pre-school children. Tht dren when their rights under that Act sex-bias of the job market need hardly were asserted. 71 Children are helpless be documented here. The results of that through most of their formative years. bias are clear. How those years are passed, and the In addition to being the "wrong" sex, treatment children receive then, are of however, the welfare mother tends to inestimable importance to their futures. have low skills, or no skills that are sale- able.64 Again, this is as much a structural fault as it is a personal fault of the

mother. Women have historically been 62. Id.. at 13. "ac- 63. Id., at 13-14. discouraged from all but a very few 64. See generally P. Levirlson, supra note 46. occupa- 65. See, e.g., Hearings on S.J. Res. 61 before the Subcomm. ceptable" or "feminine" kinds of on Constitutional Aniendments of the Senate Comm. and en- on the Judiciary, 91st Cong., 2nd Sess., at 674-75 tional or intellectual training, (1970). couraged instead to marry and have chil- 66. M. Rosenheim, Vagrancy Concepts in Welfare Law, 54 Calif. L. Rev. 511, 555-56 (1966). dren. 65 Welfare mothers have done these 67. J. Colwig, supra note 28, at 16. 68. E. Prescott, W. Tash & W. Usdane, supra note 46, at 1. things, only to find themselves, when 69. C. Reich, Individual Rights and Social Welfare: The Emerging Legal Issuey, 74 Yale L.J. 1245 (1965). they have lost their husbands, the ob- 70. Note, Rehabilitation, Investigation and the Welfare 66 Home Visit, 79 Yale L.J. 746, 748-49 (1970). jects of social disapproval. 71. See text accompanying notes 13 and 14, supra. THE BLACK LAW JOURNAL PAGE 263 THE BLACK LAW JOURNAL PAGE 26B '78 The state has every reason to be con- is the paramount goal of AFDC. To cerned with their welfare, whether or not Alabama's second argument, the Court their parents are receiving public assist- answered that Alabama failed to take ac- ance and whether or not both parents are count of the fact that the situations of at home. 72 Whether this right and proper married and informal families were not concern is being used or abused when the in fact similar, because the substitute father was under no legal obligation to welfare mother seeks to assert constitu- 79 tional rights of her own is the subject of support the children. the rest of this article. Mr. Justice Douglas, in concurring would have reached the constitutional is- sue, as had the three-judge district court.8° Welfare Children in the Supreme Court: The district court, per curiam, had held: Statutory Victories conduct of the welfare This Court is clear to the conclusion Often the that Alabama's "substitute father" regula- mother is controlled through withholding tion creates precisely the type of classifica- benefits from her children. So, for that tion prohibited by the Equal Protection matter, is the conduct of the father. If a Clause. The Alabama regulation directs state has not enacted the unemployed that Aid to Dependent Children financial 73 vir- assistance not be given to a class of chil- parent provision, a father may be dren who meet the eligibility requirements tually forced to leave home so that his and that this financial assistance be denied 74 family may receive aid. This is so be- for an arbitrary reason - the alleged cause the child would not otherwise meet sexual behavior of the mother; such a rea- the AFDC requirements which include son is wholly unrelated to any purpose of to Dependent Children Statutes.8 1 the absence of a parent from the home.75 the Aid If the father does leave, for whatever rea- Mr. Justice Douglas seemed to find son, and another moves in, he was, until this the decisive point, analogizing the a few years ago regarded as a "substitute King v. Smith situation to that of Levy v. father" by many states, resulting in the Louisiana82 in which the Court held ineligibility of the children. The avowed that Louisiana violated the Fourteenth purpose of such treatment was to discour- Amendment by denying recovery to an age the immorality of the adults and pos- illegitimate child for the death of his sibly consequent illegitimacy of children. mother under the state's wrongful death Further justification was asserted to be act. 83 the state's interest in "not undertaking the However, the concurring justice also payment of... funds to families who be- Alabama regulation is cause of their living arrangements would observed that "the aimed at punishing mothers who have be in the same position as if the parents were married, except for the marriage. 76 The practice was challenged under the Social Security Act and under the equal protection clause of the Fourteenth 72. On equalization of systems of family law for the poor in King v. Smith. 77 and for the rest of society, see J. tenBroek, California's Amendment Dual System of Family Law: Its Origin, Development and Present Status (pts. 1, 2), 16 Stan. L. Rev. 257, The constitutional issue was not reach- 900 (1964); (pt. 3), 17 Stan. L. Rev. 614 (1965); T. Lewis & R. Levy, Family Law and Welfare Policies: ed in the Supreme Court because the Ala- The Case for "Dual Systems." 54 Calif. L. Rev. 748 (1966). bama regulation involved was declared 73.42 U.S.C. § 607 (Supp. V, 1970). invalid as inconsistent with the Social 74. See I CCH Poverty Law Reports 1320 (1969). 75.42 U.S.C. § 606 (Supp. V, 1970). Security Act. The Court held that Con- 76. Kitng v. Smith, 392 U.S. 309, 327 (1968). 77. 392 U.S. 309 (1968). gress had determined that "immorality 78. Id., at 325. 79. Id., at 329. and illegitimacy should be dealt with 80. Smith v. King, 277 F. Supp. 31 (M.D. Ala 1967). 81. Id., at 39-40. through rehabilitative measures rather 82. Levy v. Louisiana, 391 U.S. 68 (1968). 83. For an analysis of the case and its progeny, see H. than measures that punish dependent chil- Krause, Legitimate and Illegitimate Offspring of Levy v. Louisiana - First Decisions on equal Protection dren, and that protection of such children and Paternity, 36 U. Chi. L. Rev. 338 (1970). PACE 264 THE BLACK LAW JOURNAL PAGE 264 THE BLACK LAW JOURNAL non-marital sexual relations." 84 The dis- was held invalid as conflicting with the trict court had intimated that this might Social Security Act, 88 its policy, and the be proper: ''cooperative federalism" upon which the AFDC program rests. The states have The expressed interest of the State of sole power to Alabama in not desiring to underwrite determine need, and the financially or approve situations which are HEW regulation was thought to intrude 8 9 generally considered immoral is a laudable upon this power. one; the State's argument that this regula- To the plaintiffs' arguments of equal tion is a "genuine attempt to place the protection, due process and the right to responsibility for taking care of children on persons who bring them into being," privacy, the district court responded neg- is, however, wholly without any realistic atively in each instance. The equal pro- or rational basis insofar as this "substitute tection argument focused on the children, father" regulation is concerned. The pun- but the rights of the MARS (but not the ishment under the regulation is against mother) were added. As the district needy children, not against the partici- court summarized the plaintiffs' objec- pants in the conduct condemned by the regulation. 85 tions: The thrust of plaintiffs' objection is Thus, in the view of the district court and that the classifications drawn by the legis- perhaps also of the concurring justice, lature are not reasonably related to the while it may be constitutionally proper to purposes of the statute, and that it is un- distinguish between mothers who behave constitutional to impose on the children immorally and mothers who and the income-earning MARS in a fam- do not, this ily receiving AFDC payments a burden has no rational connection to the needs that is not imposed on AFDC children of the children and it is their rights which without an income-earning MARS or on are violated by penalizing them a MARS living with a non-AFDC fam- for the 90 conduct of their mother. ily. Having done away with the "substitute In denying the children's argument, the father" rule, which would deny financial district court distinguished King v. Smith assistance altogether to the children, the on the ground that it was not the conduct Court went on to invalidate, two years of the mother that distinguished the chil- later, a state regulation which would dim- dren from other AFDC children, but the inish payments by imputing to a needy presence of a breadwinner who was ob- child income from a man residing in the liged to support them.9' The state had a 92 home whether or not he actually con- "rational purpose" for its regulation in tributed to the child's support. A state spreading out its welfare funds to as statute mandated the support contribu- many needy people as possible. No in- tions, which the state assumed to have vidious discrimination was found. As for been made in all cases. 86 Again, the Su- the rights of the MARS, any claimed dis- preme Court declined to reach the con- crimination between him and a similarly stitutional issue, although the district court had done so in sustaining the valid- ity of the California regulation in ques- tion. The three-judge district court had 84. 392 U.S. at 336. 85. 277 F. Supp. at 9-40. held that a man assuming the role of 86. Lewis v. Martin, 397 U.S. 552 (1970), rev'ing Lewis v. Stark, 312 F. Supp. 197 (N.D. Cal., 1968). spouse (the MARS) was properly obli- 87. Lewis v. Stark, 312 F. Supp. 197 (N.D. Cal., 1968). 88. Id., at 201-02. gated under California law to contribute 89. Id., at 202. 90. Id., at 203. to the support of the mother's children 91. Id., at 204. 87 92. Id. The equal protection clause, as applied to legisla- with whom he was living. An HEW tion classified as "social" or "economic" requires some "rational state purpose" to sustain a classification. Id., regulation, which requires that the at 203. See Morey v. Doud, 354 U.S. 457 (1957); Note, Developments in the Law - Equal Protection, 82 Harv. amount by which welfare assistance could L. Rev. 1065, 1082 (1969): "Once a purpose has been attributed to a statutory classification, equal protection be reduced is limited by the amount of analysis still demands a decision on whether all and only those persons similarly situated with respect to the proved contributions from the MARS, purpose of the law are included in it." THE BLACK LAW JOURNAL PAGE 265 THE BLACX LAW JOURNAL PAGE 265 situated man in a non-AFDC family was into an AFDC family. The district court irrelevant.93 had held that the maximum grant regula- The due process argument (against tion violated the equal protection clause California's assumption of actual con- by creating two classes of children: those tributions) was treated summarily, but in large families who will not have their the court concluded that the state could needs met, and those in small, who will.1' operate on the assumption that the law The district court could find no rational has been complied with, and referred the state purpose "other than to fit the total plaintiffs to the legislature. needs of the State's standards of their The MARS' last claim was that his subsistence requirement, into an inade- 102 right to privacy was violated by the regu- quate state appropriation." But to ad- lation. No similar claim was made by minister the inadequate state appropria- the welfare mothers involved. Distinguish- tion, it is not permissible, under the equal ing Griswold v. Connecticut,94 the dis- protection clause, to distinguish among trict court held that the intrusion here needy children according to whether they unconstitutional since it was not are the fourth or the eighth to arrive in a was not 10 3 involved in an attempt family unit. so intimate as that 95 to prove the use of contraceptives. In a supplemental opinion, 1°4 the dis- Here again, no claim was made for the trict court responded to an additional mother on any of the constitutional issues argument of the state in favor of the involved. Nor was she mentioned in the maximum grant. Its purpose, said Mary- Supreme Court's opinion96 that the HEW land, was to further the principle of "less 0 5 regulation requiring actual contribution benefit,' which aims to equalize in- was consistent with the Social Security dividuals receiving public assistance and Act. King v. Smith, said the Court, did those who are working by gearing the not hold that a "legal obligation to sup- maximum grant to the minimum wage. port" was sufficient to qualify a man as a The idea is to remove any incentive to "parent" under the Social Security Act, abandon or decline employment for the imposition purpose of obtaining public assistance. and that California's statutory 97 of such a duty was not determinative.

The Children in the Supreme Court: 93. 312 F. Supp. at 204-05, Id., 205-05. Constitutional Defeats 94. 381 U.S. 479 (1965). 95. Lewis v. Stark, 312 F. Supp, at 206. 96. Lewis v. Martin, 397 U.S. 552 (1970). Both Lewis v. Martin and King v. 97. "In the absence of proof of actual contribution, Cali- fornia may not consider the child's "resources" to Smith upheld the right of the children to include either the incomle of a nonadopting step- father who is not legally obligated to support the welfare payments on statutory grounds child as is a natural parent, or the income of a 98 MARS - whatever the nature of his obligation to alone. Dandridge v. Williams, however, support." Id. at 559-60. The case was remanded. California was foreclosed from held that denial or limitation of payments arguing that its assumption-of-income provisions are consistent with the Social Security Act as applied to to certain needy and dependent children MARS, but could demonstrate that the provisions as applied to nonadopting stepfathers are consistent with constitutionally proper on grounds that the Act. Id. at 560. position of 98. 397 U.S. 471 (1970). also worsen the constitutional 99. The maximum grant in Maryland was an administrative upholding Maryland's regulation imposing a ceiling of $250 per month for their mothers. For AFDC families. Maryland Manual of the Dep't of So- the decision cial Services, Pt. II, Rule 200, § VII, 1. Until the Dan- maximum grant provisions,9 dridge decision, the lower courts had unanimously held has been characterized as a "retrench- such ceilings were invalid. Dandridge v. Williams, 397 1 U.S. 471, 517 (1970) (dissenting opinion of Mr. Justice ment."' For its attempted removal of Marshall). 100. C. Dienes, To Feed the Hungry: Judicial Retrench- meaningful equal protection shelter from ment in Welfare Adjudication, 58 Calif. L. Rev. 555 (1970). the welfare area, it could be characterized 101. William v. Dandridge, 297 F. Supp. 450 (Md. 1968). 102. Id., at 458. as a disaster. 103. Id., at 458-59. 104. 297 F. Supp. at 459-70. The district court modified its The maximum grant operates in effect original opinion on the issue of whether the maximum grant is consistent with the Social Security Act. It de- to penalize existing children for each ad- clined to decide the question, but reaffirmed the con- stitutional basis of the prior opinion. Id., at 469. ditional child over a certain number born 105. Id., at 467. PA GE 266 THE BLACK LAW JOURNAL PAGE 266 THE BLACK LAW JOURNAL Another effect, thou it to be desirable, Athough Mr. Justice Marshall wrote is the encouragement of family limitation. in his dissent that the decision was wholly 112 Assuming the claimed state purposes without precedent, the majority cited were the actual purposes, the district in support of its constitutional standard 13 court, nevertheless, found the maximum of review Goesaert v. Cleary.' Goesaert grant invalid because it affected children involved a challenge to a state statute who were not rationally related to the denying bartending licenses to all women alleged state purposes; in other words, except the wives or daughters of male the regulation failed for overreaching.1"6 bar owners. The Court refused to inquire AFDC is not limited to abandoned chil- into a discriminatory purpose of monop- dren, so the regulation would affect chil- olizing the occupation for men, but at- dren qualified for assistance by reason tributed to the state the possible purpose of a parent's incapacity which would in of avoiding "social and moral prob- 11 4 no way further the claimed state purpose lems. Yet while declining to inquire of encouraging employment. At the same time, the purpose of the Social Security Act to preserve family life is subverted by 106. Equal protection perriits statutory classification for the regulation because the "surplus" chil- constitutionally permissible purposes if the classifica- tion relates reasonably to the purpose. Note, Develop- dren would be sent to live with relatives ments in the Law - Equal Protection, 82 Harv. L. Rev. 1065, 1077-84 (1969). Overreaching, or overin- in order to qualify them for assistance. clusion, occurs when a classification includes not only those who are reasonably situated with respect to the The family planning purpose was found purpose, but others who are not so situated as well. case the Id., at 1086. It was apparently thought, until Dan- to be unpersuasive, and in any dridge, that overinclusion invalidated even legislation still invalidly over-reached be- in the economic area where no suspect classifications regulation or fundamental interests were involved. Id., at 1082. limited to children born 107. 297 F. Supp. at 467-69. cause it is not 108. See note 99, supra; C. Dienes, supra note 100, at 561. after AFDC eligibility is established.10 7 109. Section 402 (a) (10) of the Social Security Act, as amended 42 U.S.C. § 602 (a) (1) (Supp. V, 1970) requires a state plan that provides "that all individuals All other lower courts passing on the wishing to make application for aid to families with dependent children shall have opportunity to do so, maximum grant had likewise found it to and that aid to families with dependent children shall on statutory or consti- be furnished with reasonable promptness to all eligible be invalid, either individuals." Appellees argued that the maximum 10 8 The Supreme grant is in violation of the Act since the younger chil- tutional grounds, or both. dren are just as dependent as their older siblings. It was however, sustained the state on all also argued that the maximum grant undermines the Court, purpose of the Act, wiich is to encourage the care of counts. It first held that the maximum such children in their own homes, because parents of large families are forced to "farm out" their younger grant was not contrary to the Social Se- children to relatives in order to qualify them for aid. 10 9 The Supreme Court held that it is the family grant curity Act. On the equal protection is- that is affected, which is not incompatible with the Act. In support of this, it cited the several sections of sue, which the Court reached because it the Act which stress or contain the word "family." Given Maryland's finite resources, its choice is either had sustained the state on the statuto0y to support some families adequately and others less adequately, or not to give sufficient support to any fam- issue, Maryland's arguments of legitimate ily. We see nothing in the federal statute that forbids a state to balance the stresses that uniform insuffici- state interests prevailed. The Supreme ency of payments would impose on all families against the greater ability of large families - because of the Court held that the district court had inherent economies of scale - to accommodate their needs to diminished per capita payments." 397 U.S. erred in applying the doctrine of over- 479-80. Although the Act requires that aid be furnished to "all eligible individuals," ascertainment of the level reaching to a case which did not involve of benefits lies with each state. Id., at 480. The major- ity also relied on the approval by the Secretary of freedoms guaranteed by the Bill of Health, Education and Welfare of Maryland's welfare 0 scheme, and a "specific congresssional recognition of Rights." Social and economic interests, the state maximum grant provisions." Id., at 481-82. Justices Douglas and Marshall challenged the majori- it said, may be the subject of discrimina- ty's statutory findings. Id., at 490-508, 508-17. See also C. Dienes, supra note 100, at 565-91. tory but not "suspect" classification pro- 110. 397 U.S. at 484. This holding is without precedent. See the dissenting opinion of Mr. Justice Marshall, vided only that there be some "reasonable 397 U.S. at 508-09; note 106 supra. 111. 397 U.S. at 485 & n. 17. If a right is characterized as IoT the classification.' It some Tea- "i'an6ameita" Or it a "%ssstz.% ct za~irirm" is in- basis volved, a stricter standard of review is invoked. not 112. Supra, note 110. sonable basis exists, the Court will 113. 335 U.S. 464 (1948). 114. See Note, Sex Discrimination and Equal Protection: inquire whether all who are similarly Do We Need a Constitutional Amendment? 84 Harv. L. Rev. 1499, 1503 (1971), observing that the Court in situated with respect to the basis are af- Geosaert felt no need to articulate the nature of the "moral and social" problems surrounding the employ- fected, or if some who are not related to ment of women in bars, nor the magnitude of the harms ensuing from them, and Note, Developments in the basis are affected. the Law - Equal Protection, supra note 106, at 1079. THE BLACK LAW JOURNAL PACE 267 THE BLACK LAW JOURNAL PACE 267 into the nature of those "social and moral business of this Court.' 1 21 Certainly problems" it did at least glance at the in- judges are not supposed to oversee the clusiveness of the prohibition. The state legislatures on the wisdom and desirabil- could "deny to all women opportunities ity of laws, and their expertise on local for bartending," but it could not "play conditions is probably in any event limi- favorites among women without rhyme ted, causing them to rely on the judg- or reason. "s' Thus, while more than a ment of local officials. 122 But there is no little cavalier in its treatment of the ques- reason why judges should not be expected tion, the Court did pay some attention to to categorize questions fairly, knowing the reasonableness of the line drawn be- full well that how the question is asked tween women in general and the wives determines its answer. Equating welfare and daughters of male owners. It did not legislation with industrial economic regu- say, "this legislation because it is 'social lation will naturally result in their being and economic' is not susceptible of in- treated alike despite the "dramatically quiry into its possible underinclusion," as real factual difference." Even if, in the did the Court in Dandridge. Goesaert economic area, the Court wishes now to does, however, exemplify a permissive require only some rational state purpose 6 standard of review." to sustain a law, the obvious objection is The Dandridge majority seems to have that the ranking of people is different gone much further in the "permissiveness" from the ranking of industries. 123 There of equal protection review. All that is may well be sound social and economic left in the social and economic area is justification for preferring one industry some "rational state purpose.' 1 7 The to another in a given area, while state scope of the classification, so long as the preferences for people in small families classification itself is related to the pur- to people in large are more difficult to pose, is not open to question. justify. Other cases cited in Dandridge in sup- Besides misclassifying the Dandridge port of the "standard of review" it an- issue, the Court implicitly declined to ex- nounces involved state regulation of busi- tend the concept of "fundamental inter- ness and industry.18 The majority did ests,' '124 which would have at least neces- recognize the "dramatically real factual sitated a closer examination of the Mary- difference" between industries and the "most basic needs of impoverished human beings," but it could "find no basis for 115. 335 U.S. at 466. applying a different constitutional stand- 116. Note, Sex Discrimination and Equal Protection, supra ' 9 note 114, at 1504. ard."" Other bases were available, how- 117. See notes 106 and 110, supra. 118. McGowan v. Maryland, 366 U.S. 420 (1961) (Sunday ever, even if social welfare and public as- closing laws); Metropolis Theatre Co. v. City of Chi- sistance laws are properly seen as if they cago, 228 U.S. 61 (1913) (ordinance licensing places of amusement at graded license fees); Lindsley v. related to businesses and industries: even Natural Carbonic Gas Co., 220 U.S. 61 (1911) (Sta- tute to protect mineral springs restricted the pumping in the economic area, classifications af- of gas). The court noted that the same standard of review had been employed in employment cases, citing fecting "fundamental interests" and "sus- Goesaert v. Cleary, supra notes 113, 114 and accom- panying text; Kotch v. Board of River Port Pilot pect classifications" have been thought to Comm'rs, 330 U.S. 552 (1947) (river pilots appointed by state governor after serving an apprenticeship call for a strict standard of review in which in practice was generally restricted to relatives and friends of incumbent pilots). which the presumption of constitutional- 119. 397 U.S. at 485. 120. See Note, Deielopments in the Law - Equal Protec- ity is removed and the state has the bur- tion, supra note 106, at 1077, 1120-23; Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556-57 den of justifying its differential treat- (1947). 12o 121. 397 U.S. at 487. ment. 122. Note, Developments in the Law-Equal Protection, supra note 106, at 1078, 1080, The majority, closing its opinion with 123. Id., at 1081. 124. Interests thus far classified as "fundamental" and a sort of disclaimer, said that "the in- therefore deserving of special scrutiny under the equal protection clause include voting, procreation, rights tractable economic, social, and even phil- with respect to criminal procedure and education. Id. at 1127-28. Shapiro v. Thompson, 394 U.S. 618 (1969) osophical problems presented by public characterized the right to travel from one state to an- other as "fundamental," although not ascribable to a welfare assistance programs are not the particular constitutional provision. 394 U.S. at 630. PAGE 268 THE BLACK LAW JOURNAL PAGE 268 THE BLACK LAW JOURNAL land regulation and its effects. By man- Any hope that Dandridge may have standard of review been an aberration was at least tempor- dating a permissive 29 in an area now classified as social and arily dampened by Labine v. Vincent economic, the Court was in effect saying which carried permissive review almost that welfare interests are not "funda- to the extreme of no review at all. The mental," even though food and shelter case had serious implications for welfare 125 for children are involved. mothers and their children. The decision is frankly deplored here. Labine v. Vincent posed the question To equate public assistance with indus- of whether an acknowledged illegitimate trial regulation is, it is submitted, a mis- child has the right to take by intestate categorization, a misidentification of the succession from her father. Louisiana is problem. Goesaert is another example of one of the few states which expressly de- miscategorization. Restrictive employ- nies the right,130 and its law was challeng- ment laws which directly limit individual ed in the Supreme Court. It was expected human opportunity in a work oriented that after the Court's earlier decision in society ought not be treated the same Levy v. Louisiana' the answer would be way as industrial regulation (which might ''yes" on the ground that children ought have some limiting effect on employment, not be classified because of the acts of but only indirectly). If, however, the their parents, and that the question- of complexities of industrial society and the inheritance from a putative father ought public interest in the qualifications of to depend upon proof of paternity, and employees necessitate that in most cases not the child's status.12 The Supreme the states have considerable leeway in Court, in Labine, sought to distinguish classification so that Dandridge-type per- Levy and its companion case, Glona v. missive review is in most instances appro- American Guarantee & Liability Insur- priate, then it would seem necessary to ance Co., 3 3 on the ground that they in- volved statutory actions, while rights of adjust the concepts of "fundamental in- 3 4 terests and suspect classifications to ac- inheritance were of a different order. cord with the realities of the situations at This is, to say the least, an interesting hand." Similarly, if the immensities of this distinction in view of the Court's earlier welfare problem are such that the states decision in Irving Trust v. Day,135 where ought to have considerable leeway, the it said that "[r]ights of succession to the doctrines of "fundamental interests" and property of a deceased, whether by will "suspect classifications" ought to be re- or by intestacy, are of statutory creation examined so as to enable the courts to and the dead hand rules succession only preserve, when necessary, the rights and by sufferance.' 136 If succession is no less dignity of the poor. The extension of "suspect classifications" to welfare chil- 126 125. The majority's refusal to see that "fundamental per- and to sex-based classifications, sonal interests" were involved was attacked from an- dren other point of view by C. Dienes, supra note 100, at interests" to the bare 596. Professor Dienes' analysis focuses on the marital and "fundamental and familial relationship as fundamental, rather than necessities of life would have softened on the interest of the dependent children in the neces- sities of life. the combined impact of Goesaert and 126. Classifications which are "suspect" (race, alienage, re- ligion) trigger strict scrutiny under the equal protec- Dandridge. As it is, after Dandridge the tion clause. Sex, howe'er, has never been held by the Supreme Court to be a "suspect classification." Note, position of poor children, their mothers, Sex Discrimination and Equal Protection supra note 111, at 1503. and indeed, all women was perhaps wor- 127. Dissenting opinion of Mr. Justice Marshall, 397 U.S. at 508. sened. For in addition to its "emascula- 128. See supra notes 56-62 and accompanying text. 1' 27 129. 401 U.S. 532 (1971). tion of the Equal Protection Clause,' 130. Id. at 556-57 (dissentitig opinion of Mr. Justice Bren- nan). the Court in citing Goesaert reinforced 131. 391 U.S. 68 (1968). 132. See generally H. Kraose, Legitimate and Illegitimate the constitutionality of the sex discrimi- Offspring of Levy v. L-ouisiana - First Decisions on Equal Protection and Paternity, 36 U. Chi. L. Rev. nation in employment which must con- 338, 344 (1969). 133. 391 73 (1968). tribute to the necessity for public assist- 134. 401 U.S. at 535. 128 135. 314 U.S. 556 (1942). ance to begin with. 136. Id. at 562. THE BLACK LAW JOURNAL PAGE 269 THE BLACX LAW JOURNAL PAGE 269 and no more a statutory right than the The systematic dilution of the guaran- wrongful death action, the distinction tees of the Equal Protection Clause when sought to be drawn between the two de- invoked by children darkens the horizon mands greater explanation than was for their mothers. For if the state has un- given.137 The real reason seems to have controlled power to legislate morality and been a re-dedication to the state's right to "foster" family life, it has uncontrolled to regulate private morality.18 While de- power to control women, so long as they clining even to consider whether there are identified primarily with family life. was a "rational basis" for the Louisiana That a majority of the Court has historic- law, 139 the majority stated that if the test ally and consistently acted on a belief in were applicable, a rational basis existed "woman's separate place" has already in Louisiana's interest "in promoting fam- been demonstrated. 145 If a state may en- ily life.' 140 Further, said the majority, act any law under the rubric - demon- "the power to make rules to establish, strated or not - of protecting "family protect, and strengthen family life as well life," then it may arguably prohibit as to regulate the disposition of poverty mothers from working outside the Iis Committed by the Constitution of home,146 from attending college, 147 from 148 the United States and the people of controlling their separate property, or Louisiana to the legislature of that from asserting any other rights all too State. '1'4 "[T]here is nothing," said the recently won. There is little on the face majority, "in the vague generalities of of Reed v. Reed,149 which held unconsti- the Equal Protection and Due Process tutional a statute mandating a preference Clauses which empowers this Court to for men over women as estate adminis- nullify the deliberate choice of the elected trators. To qualify this potential state representatives of the people of Louisi- power for family life was not a factor in 142 ana." that opinion. So the state may still impose Mr. Justice Brennan, in his lengthy dissent (joined by Justices Douglas, White 137. One explanation for the distinction could be that in and Marshall) accused the majority intestate succession, the property being distributed is the decedent's own, while in Levy and Glona, forms (which was not really a majority, for Mr. of governmental largesse were being distributed. Thus, Louisiana's exclusion of illegitimate children in Labine Justice Harlan filed a separate concur- could rest,' as do many other intestacy provisions, on the presumed preferences of most property-owners. ring opinion) of Nevertheless, it is the state which is making the classi- fication, which of course brings it within the Equal Protection Clause. simply excluding . . . . illegitimate chil- 138. Cf. Griswold v. Connecticut, 381 U.S. 479 (1965). 139. 401 U.S. at 536 n. 6. dren from the protection of the [equal 140. Id. protection] Clause, in order to uphold the 141.Id. at 538. 142..Id. at 539-40. untenable and discredited moral prejudice 143. Id. at 541. 144. As recently as 1961, the Supreme Court noted that of bygone centuries which vindictively "Despite the enlightened emancipation of women from punished not only the illegitimates' par- restrictions and protections of bygone years, and their entry into many parts of community life formerly ents, but also the hapless, and innocent, to be reserved to men, woman is still re- 43 considered children. 1 garded as the center of home and family life. We can- not say that it is constitutionally impermissible for a state, acting in pursuit of the general welfare, to con- clude that a woman should be relieved from the civic He further points out that the Court's duty of jury service .... " Hoyt v. Florida, 368 U.S. 57, 61-62 (1961). Cf. Reed v. Reed, 404 U.S. 71 holding that the state may regulate and (1971). See generally B. Brown, T. Emerson, G. Falk manner it & A. Freedman, The Equal Rights Amendment: A uphold family life in any Constitutional Basis for Equal Rights for Women, 80 of con- Yale L. J. 871, 875-82 (1971). chooses "would reverse 104 years 146. "The Supreme Court has never seriously re-examined stitutional adjudication under the Equal its assumption of woman's separated place and the equal protection doctrines that flow from it." B. Protection and Due Process Clauses. It is Brown, T. Emerson, G. Falk, & A. Freedman, supra note 145, at 878-79. This remains true even after Reed precisely state action which is subjected v. Reed, 404 U.S. 71 (1971), because that opinion did not mention either the home or family life, so by the Fourteenth Amendment to its re- the classification was not tested against the state inter- 44 est in protecting either. straints.' Worst of all, the Court simply 147. Williams v. McNair, 401 U.S. 951 (1971), aff'g 316 F. Supp. 134 (D.S.C. 1970) upheld, without opinion, refused to analyze the discrimination in sex restrictions in college admissions. 148. See hearings on S. J. Res, 61 Before Subcomm. on terms of the requirements of the Four- Constitutional Amendments of the Senate Committee on the Judiciary, 91st Cong., 2d Sess., at 723 (1970). teenth Amendment. 149.404 U.S. 71 (1971). PAGE 270 THE BLACK LAW JOURNAL PAGE 270 THE BLACK LAW JOURNAL restrictions on any married woman in broad, when state statutory classifications And the ef- approach sensitive and fundamental per- order to foster family life. sonal rights, this Court exercises a stricter fects would soon be felt by single women scrutiny, Brown v. Board of Education, who would find employment opportuni- 347 U.S. 483 (1954); Harper v. Virginia ties even more restricted than they now Board of Elections, 383 U.S. 663 (1966). are because women might marry and give The essential inquiry in all the foregoing 5 If little children may be cases is, however, inevitably a dual one: up their jobs." What legitimate state interest does the disadvantaged and discriminated against classification promote? What fundamental by the state in order to "promote family personal rights might the classification life," certainly adult women (who can endanger? 157 vote) may be classified for the same 151 In this case, as in the others, the state purpose. interest in protecting and fostering legiti- Although not an indication that "re- mate family relationships was urged and, trenchment" in the welfare area is ended, as in the others, accepted. "We do not," Weber v. Aetna Casualty and Surety said the Court, "question the importance 5 2 Co. is at least a harbinger of renewed of that interest; what we do question is concern for the plight of illegitimate chil- how the challenged statute will promote dren. The question was the right of il- it. ' 158 Finally, and most hopefully for an legitimate children to recover under eventual reexamination of the reasoning Louisiana workmen's compensation laws of the Dandridge majority, the Weber benefits for the death of their natural majority said: "... imposing disabilities father, who had not and could not have on the illegitimate child is contrary to acknowledged them. Writing for the ma- the basic concept of our system that legal jority, Mr. Justice Powell held that Levy burdens should bear some relationship and not Labine was the controlling prece- to individual responsibility or wrongdo- dent, quoting with approval Levy's ob- ing. Obviously, no child is responsible for servation that "legitimacy or illegitimacy his birth ... ."159 of birth has no relation to the nature of In his dissent, Mr. Justice Rehnquist the wrong allegedly inflicted on the par- observed: ent."' -" Labine was distinguished because of the traditional latitude given state dis- Levy and today's decision are not only but the inconsistent with the long line of earlier cretion in the area of inheritance, cases construing the Equal Protection majority also cited the state court's find- Clause to forbid only irrational classifica- ing of a substantial state interest in pro- tions; they are quite inconsistent with viding for "the stability of . . . land titles Danridge v. Williams,... decided the year and the prompt and definitive determina- after Levy. If state welfare legislation in- volving "the most basic economic needs tion of the valid ownership of property is to be 4 of impoverished human beings" left by decedents".I Finally, the Weber judged by the traditional "reasonable majority distinguished Labine because basis" standard, I am at a loss to see why there the natural father could have legiti- that standard should not likewise govern mated his child, while in Weber this was 155 impossible under state law. 150. Cf. B. Brown, T. Emerson, G. Falk, & A. Freedman, supra note 145, at $94-96. So Labine is limited. More import- 151. It has been suggested that the reason for the Court's permissive view of sex discrimination may be based as antly, the Weber majority reaffirmed the much on institutional calculations as on historical con- siderations. The tremendous ramifications of an in- reasoning of Levy, and placed it in a stitutionalized recognition of a change in the position of women, the many emotional over- and undertones, more structured conceptual framework, and the fact that -omen ate a political majoithy and can thus utilize their voting power to bring about one which may also affect Dandridge (a change, may all have influenced the Court. See Note, Sex Discrimination eind Equal Protection, supra note possibility that Mr. Justice Rehnquist, 111, at 1505. 152. 406 U.S. 164 (1972). dissenting, clearly recognized).1 Said 153. Id. at 168. 154. Id. at 170. the majority: 155. Id. at 170-71. 156. Id. at 180, 184. Though the latitude given state eco- 157. Id. at 172-73. 158. Id. at 173. nomic and social regulation is necessarily 159. Id. at 175. THE BLACK LAW JOURNAL PAGE 271 THE BLACK LAW JOURNAL PAGE 271

legislation determining eligibility for state the classification involved in that case workmen's compensation benefits.16° (family size) neither impinged upon a fundamental constitutional right nor em- 1 5 Fundamental Rights and Suspect ployed an inherently suspect criterion. 6 Classifications in Welfare Litigation Again, the impact of Weber must be measured. The test formulated there was Where the right is fundamental - a "what fundamental personal rights might concept that can better be illustrated than 166 the classification endanger?" defined 16' - welfare litigants have fared On suspect classifications, the Graham somewhat better when asserting constitu- decision said: tional issues. Dandridge declined to ex- pand the interests covered by the con- Under equal protection principles, a cept, but rights previously identified as State retains broad discretion to classify been limited. Inter- as long as its classification has a reason- fundamental have not able basis. * * * This is so in "the area of state travel is one such right. economics and social welfare." Dandridge The right to travel is not sanctified by v. Williams, 397 U.S. 471,485 (1970). any express constitutional guarantee, of But the Court's decisions have established course, yet impairment of it through state that classifications based on alienage, like held those based on nationality or race, are in- welfare residency requirements was herently suspect and subject to close judi- to violate the Fourteenth Amendment's cial scrutiny. Aliens as a class are a prime equal protection clause in Shapiro v. example of a "discrete and insular" minor- 162 of wel- ity . . . for whom such heightened judicial Thompson. The classification 167 fare applicants according to how long solicitude is appropriate. they had resided in the state, while made One might substitute young children in for legitimate state purposes, was never- large impoverished families for aliens in theless unconstitutional: "If a law has the last sentence of the above paragraph, no other purpose . . .than to chill the of course, and still have a "discrete and assertion of constitutional rights by pen- insular" minority worthy of judicial so- alizing those who choose to exercise them, licitude. Nor would substitution of "ille- then it [is] patently unconstitutional."'" gitimate children" distort the sense of the The right to travel is not explicitly men- sentence. One might even substitute "poor tioned in the Constitution nor is it more mothers of small children" as deserving personal than a child's interest in not of special concern. They are a minority; being hungry, or a woman's interest in they are discrete and insular; they lack her family, or in employment. But it had access to jobs and to political power; been previously identified as important they are the subject of public disapproba- enough to warrant careful scrutiny of tion; and they arq in fact discriminated state-imposed impediments to its enjoy- against both because of their sex and ment. Dandridge, given the opportunity their status, however they can vote. But to do so, declined to expand the funda- they are particularly vulnerable to in- mental interest concept. trusions upon their constitutional rights Fundamental interests, however, are because the penalty of asserting those not alone in triggering strict review. If a rights may be loss of support for their classification is a "suspect" one, it will children - perhaps the cruelest of pun- be strictly reviewed even though no ishments, and a most effective one for fundamental interest is at stake. But this it sure must deter many from seeking door to relief has also been shut on wel- redress. fare mothers. Graham v. Richardson," which struck down disqualification of 160. Id. at 184-85. 161. See note 121, supra. aliens for welfare benefits, distinguished 162. 394 U.S. 618 (1969). 163. Id. at 631, citing United States v. Jackson, 390 U.S. (and reenforced) Dandridge as follows: 570, 581 (1968). 164. 403 U.S. 365 (1971). Dan- 165. Id., at 376. Appellants' attempted reliance on 166. 405 U.S. 914 (1972) emphasis added). dridge v. Williams ...is misplaced, since 167. 403 U.S., at 371-72. PAGE 272 THE BLACK LAW JOURNAL PAGE 272 THE BLACK LAW JOURNAL In most of the cases thus far consid- In affirming, the Supreme Court ered, the issues were generally posed in agreed with the district court's weighing terms of the children's rights. In one, a the welfare recipients' need more heavily MARS urged that his rights were in- than the state's interest in either conser- fringed upon by welfare regulations but vation of revenues or summary adjudica- the Supreme Court never reached the tion. 172 True, the majority conceded, issue, holding for the children on statu- some unqualified persons may be on the 16 8 In Shapiro v. Thompson, welfare rolls, but the danger is that an tory grounds. 173 however, AFDC mothers joined other eligible recipient may suffer. categorical assistance recipients in urging In the course of his opinion, Mr. Jus- their right of interstate travel. This is the tice Brennan, writing for the majority, only instance in which the Supreme Court offered the following observations about has upheld welfare mothers claiming a the role of public assistance in the Ameri- personal constitutional right on constitu- can system. Because they offer a stunning tional grounds. And even here, it was contrast to the views held by the majority seen as a right being exercised in further- in Wyman v. James,17 decided less than ance of the children's welfare: a year later, they are quoted here at length: ...we do not perceive why a mother who is seeking to make a new life for her- From its founding the Nation's basic self and her children should be regarded commitment has been to foster the dig- as less deserving because she considers, nity and well-being of all persons within among other factors, the level of a State's its borders. We have come to recognize public assistance. Surely such a mother is that forces not within the control of the no less deserving than a mother who poor contribute to their poverty. This per- moves into a particular State in order to ception, against the background of our take advantage of its better educational traditions, has significantly influenced the 169 facilities. development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help conflict between Thus the Court found no bring within the reach of the poor the the mothers' exercise of the right and same opportunities that are available to their role as mothers. That a perception others to participate meaningfully in the of such a conflict may influence the out- life of the community. At the same time, come is demonstrated by a later case. welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Due Process in Welfare Litigation Public assistance, then, is not mere char- ity, but a means to "promote the general 70 Welfare, and secure the Blessings of Lib- In Goldberg v. Kelly,' the question '175 to ourselves and our Posterity. was whether the state could terminate erty assistance to welfare recipients without The A FDC Mother and the Supreme a prior hearing. Some of the plaintiffs Court: A Non-Person? were AFDC recipients, others received general assistance funded and adminis- The welfare mother, who already been tered by the state alone. The state had briefly sketched, 177 shares with other wel- provided a post-termination hearing, fare recipients the right to travel from which the federal district court held did not satisfy due process standards because 168. Lewis v. Stark, 312 F. Supp. 197 (N.D. Cal. 1968), "... to cut off a welfare recipient in the rev'd and remanded sub nom. Lewis v. Martin, 397 U.S. 552 (1970). face of. . . 'brutal need" without a prior 169.394 U.S. 613, 632 (1969). 170. 397 U.S. 254 (1970). hearing of some sort is unconscionable, 171. Kelly v. Wyman, 294 F. Supp. 893, 899-900 (S.D.N.Y., 1968). unless overwhelming considerations jus- 172. 37 U.S. at 263. 171 173. Id., at 266. tify it.' Protection of tax revenues did 174. 400 U.S. 309 (1971). 175. 397 U.S. at 264-65. For a recent development in due not overwhelm the individual's over- process, see Stanley v. Illinois, 405 U.S. 645 (1972). 176. See notes 27-38, supra, and accompanying text. powering need. 177. Shapiro v. Thompson, 394 U.S. 618 (1969). THE BLACK LAW JOURNAL PAGE 273 THE BLACK LAW JOURNAL PAGE 273 state to state;178 the right to receive as- visit has been described as "the practice sistance for herself and her children even that most clearly embodies the unique if she is not a citizen;' 79 and the right to rehabilitative cast of public assistance a fair hearing prior to termination of her programs".'8 6 Although not specifically family's benefits. 11 All of these are con- required by federal regulations or legisla- stitutionally guaranteed. She can, without tion,'8 7 it is a particularly important part causing her children to suffer loss of as- of AFDC programs. Its goals are benev- sistance, cohabit with a man not her hus- olent, 188 despite the fact that if consent band because her children's statutory to the visit is withheld, "no visitation rights are protected, and not because she takes place. The aid then never begins has asserted any right to such behavior."8' or merely ceases, as the case may be. However, her children are not now pro- There is no entry of the home and there tected, under either the Constitution or is no search."1 89 The Supreme Court con- the Social Security Act from diminished ceded that the home visit is investigative assistance after the birth of another child as well as rehabilitative, but the investiga- in maximum grant states. 182 The right to tive aspect, said the Court, "is given too procreation, although a "fundamental in- broad a character and far more emphasis terest" (at least when asserted by a male than it deserves if it is equated with a criminal),1 8 3 has not been measured (or search in the traditional criminal law con- even recognized) in this context. text".190 When, however, a mother asserts her The majority did not deny, as indeed own constitutional right, such as the free- it could not, that the home visit is at dom from unreasonable search, she is less least in part investigative. It may be said likely to succeed, as a recent case amply that a fire inspector's visit to a commer- warns her. Wyman v. James'84 challenged cial warehouse is at least in part intended the constitutionality, under the Fourth to be helpful. This does not obscure the and Fourteenth amendments, of enforced fact that both the welfare worker and the warrantless home visitations. Refusal of fire inspector may discover violations of consent means withdrawal of aid to the regulations which they are charged 19 mother and child. Said Mr. Justice Black- with enforcing. ' Nor does it obscure the mun, writing for the majority: fact that violations in either case may, if discovered, lead ultimately to criminal The dependent child's needs are para- mount, and only with hesitancy would we penalties. An expensive item in the wel- relegate those needs, in a scale of com- fare recipient's home may lead to a ter- parative values, to a position secondary mination of benefits or a charge of to what the mother claims as her rights. 185 fraud. 192 The presence of a man may lead

Mrs. James was "claiming" a right not to 178. Graham v. Richardson, 403 U.S. 365 (1971). 179. Goldberg v. Kelly, 397 U.S. 254 (1970). be subject to an unreasonable search of 180. Lewis v. Martin, 397 U.S. 552 (1970); King v. Smith, 392 U.S. 309 (1968). her home. Quite apart from the question 181.Dandridge v. Williams, 397 U.S. 471 (1970). 182. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, of whether the home visit is either a 541 (1942). search or unreasonable,the Court seemed 183. 400 U.S. 309 (1971). 184. Id., at 318 (emphasis added). to feel that it was unseemly for Mrs. 185. Note, Rehabilitation, Investigation and the Welare Home Visit, 79 Yale L. J. 746 (1970), James to suggest that she, personally, had 186. Id., at 747. 187. James v. Goldberg, 303 F. Supp., 935, 942 (S.D.N.Y., such a right. Because of her role as 1969). 188. U.S. at 317-18. mother (or perhaps more accurately, poor 189. Id. 190. See v. Seattle, 387 U.S. 541 (1967). See also Camara mother without a husband) her interests v. Municipal Court, 387 U.S. 523 (1967). 191. Note, Rehabilitation, Investigation and the Welfare are subordinate. Of course, there is no Home Visit, supra, note 185, at 752-53. The district court in James v. Goldberg, supra note 187, had no such hierarchy in the Constitution, which trouble at all characterizing the home visit as a search within the meaning of the Fourth Amendment without simply fails to mention women at all. even considering these possibilities. 192. See supra, note 20. A determination that a home is On the character of the home visit it- "unsuitable" results in removal of the child from the home, not termination of aid to the child. See 42 self, the Court held that it was neither a U.S.C. §§ 602 (a) (16), 606 (a), 607, 608 (Supp. V, "search" nor "unreasonable". 1970). See also King v. Smith, 392 U.S. 309, 322-27 The home (1968). PAGE 274 THE BLACK LAW JOURNAL PAGE 274 THE BLACK LAW JOURNAL to a charge of adultery or fornication, or bring her children to the social worker's 2 1 a finding that the home is an "unsuitable" office at the time of the interview. 0 It is one in which to raise a child. 193 The be- the loss of privacy in the home that is nevolence of the intrusion makes it no thought to be particularly stigmatizing. 2 2 less an intrusion. Stigma is closely related to privacy: 1 Further, there is some indication that Disclosing assets and resources, reveal- the benevolent or supportive aspect of the ing the names of one's friends and associ- home visit falls far short of the ideal. One ates, submitting to investigations and ques- study concluded that "Our overall find- tioning, accounting for expenditures and ing was that very little social service ac- social behavior - these are the price of tivity goes on."'194 Clients indicated receiving welfare. Loss of privacy is loss that of dignity and is part of the shame of caseworkers tended to stay away from being a "Nelfale r ipint.20 troublesome issues and that with the ex- ception of medical services offered little The shame, the stigma, visited upon the concrete assistance. 195 If this is the case parents may have deleterious and lasting generally, the prop on which the Court effects upon the children who share it. rested its conclusion that the visit is not Stigma inflicted by loss of privacy is un- likely to mitigate a sense of "unjustified a search because it is rehabilitative as 2 4 well as investigative falls away. There frustration and insecurity". Nor is it was, however, another prop: the reason- likely to aid the children who see their ableness of the search. homes periodically "checked" by outsid- Having concluded that the home visit ers. Such children are scarcely likely to be is not a search, the Court went on to say 193. 3. Handler & E. Hollingswortn, Stigma, Privacy, and that even if it is a search, it is not an un- Other Attitudes of Welfare Recipients, 22 Stan. L. Rev. 1, 10 (1969). The amicus brief submitted on be- reasonable one. It offered several reasons half of the Social Services Employees Union in Wy- man v. James bears this out, noting that in many in support of its conclusion. instances New York caseworkers are either badly trained or untrained, and generally lack experience. The first is the public's interest in the 400 U.S. 309, 322-21, n. 11 (1971). The majority's comment on this "astonishing description" misses the welfare of the child. The child's needs point by a wide margin. 194. J. Handler & E. Hollingsworth, supra note 193. are paramount and compared to them the 195.400 U.S. at 318. 196. One study has in fact indicated that child abuse mother's claimed right is assigned a sec- tends to occur more often in large families of low 196 socio-economic status and educational achievement, ondary position. This somehow as- but it was pointed out that children in more prosper- sumes ous homes are more likely to be treated by private that a child in an impoverished physicians, or to go unreported. N.Y. Times, Aug. 16, 1971, at 16, col. 4. family is in far greater jeopardy from his 197. Wyman v. James, 400 U.S. at 341-42 (dissenting opin- parents than 97 ion of Mr. Justice Marshall). children in other families. 198. Goldberg v. Kelly, 397 U.S. 254, 266 (1970). Child abuse is a gra've and heinous thing, 1.99. ". .. texcepi in ceflaT' ZMtiT'V~y i-ar&~h ssin of cases, a search of private property without proper con- but it is not confined to the poor, or those sent is 'unreasonable' unless it has been authorized 198 by a valid search warrant." Camara v. Municipal on the welfare rolls. Ineligible families Court, 387 U.S. 523, 528-29 (1966). 200. The district court observed of Mrs. James' claim that: are protected from summary denials of less drastic means may be suggested for achieving the same basic purposes for which the City and aid because some entitled families may State urged home visits are designed. Proof of 99 actual residence may be ascertained, for example, suffer from the same summary denials. by the submission of a duly-executed lease upon the premises in question. Family composition may be Welfare families in which the children verified by the submission, in this instance, of birth certificates. The physical well-being of the child could are lovingly cared for should not be sub- be safeguarded by making available facilities for periodic medical examinations rather than by requir- ject to a benevolent intrusion because in ing routine home visits by case-workers. This is especially true since there is no assurance that the some welfare families - as in sonie more child will even be present when the home visit is made. James v. Goldberg, 303 F. Supp. 935 (S.D. affluent families - children are physi- N.Y., 1969). The Supreme Court majority, however, denigrated the cally and psychologically abused. usefuliess at the inteolkew away (osss' hat',, wsA, such sources as a lease and birth certificates on the If the welfare authorities were without issue of eligibility. "Although these secondary sources might be helpful, they would not always assure veri- other means to ferret out child abuse, fication of actual residence or of actual physical pres- ence in the home, which are requisites for AFDC bene- the home visit might be justifiably cate- fits, or of impending medical needs. And, of course, little children, such as Maurice James, are not yet gorized as a warrantless search which is registered in school." 400 U.S. at 322. 2°° 201. J. Handler & E. Hollingsworth, supra note 193, at 2. nevertheless reasonable. But it ought to 202. Id. 203. See text accompanying note 160, supra. be possible to require the recipient to 204. 400 U.S. at 319. THE BLACK LAW JOURNAL PAGE 275 THE BLACK LAW JOURNAL PAGE 275 secure unless it is true that poor parents working hours is forbidden. Certainly the are bad parents, and the child knows this announced visit is less objectionable than 21 and will feel reassured by the casework- the unannounced, ' but advance notice er's visit. was not mentioned as an exception to the The Court's first reason why the home holding in See v. City of Seattle and Ca- 212 visit is not unreasonable seems suspect. mara v. Municipal Court. If it is granted that the child's welfare is Scattered among the reasons why the paramount, the question still remaining home visit is a reasonable search if it is a is whether the child is well-served by the search at all are comments and criticisms unconsented home visit. of the plaintiff. Mrs. James, according to The second reason for the reasonable- the majority, wished to receive the neces- ness of the search is the state's interest in sities for herself and her son "upon her "having at its command a gentle means, own information terms" and to "utilize of limited extent and of practical and the Fourth Amendment as a wedge for considerate application" 20 5 of achieving imposing those terms and to avoid ques- ' 21 3 assurance that public monies are being tions of any kind. The plaintiff's will- properly used by the recipients. This in- ingness to supply any information any- terest did not, however, outweigh the ne- where but her home was skeptically re- cessity for a prior hearing in termination ceived, especially since children as young cases. 20 6 Nor did the public's interest in as the plaintiff's son were not yet enrolled fire regulation compliance outweigh the in school where, presumably, the teach- necessity for a warrant to inspect a pub- ers could examine him for signs of 214 lic warehouse. 20 7 As Judge Skelly Wright abuse. has observed, such policing, gentle or The reasonableness of the search was otherwise, is not required where subsidies not affected, in the Court's opinion, by such as grants to farmers and airlines, the possibility that the home visit may and various tax exemptions are in- uncover evidence of criminal activity as 208 volved. a "byproduct." This is a risk "no greater The third reason is a variation on the than that which necessarily ensues upon second: the public, said the Court, like any other discovery by a citizen of crimi- the private charitable provider, expects 205. Goldberg v. Kelly, 397 U.S. 254, 261-64 (1970). to know how the funds are utilized. As- 206. See v. City of Seattle, 387 U.S. 541 (1967). 207. S. Wright, Poverty, Minorities, and Respect for Law, suming this to be both true and justifi- 1970 Duke L.J. 425, 427-28. 208. 400 U.S. at 319. As Mr. Justice Marshall observed in able, the information can be obtained his dissenting opinion to Wyman v. James, "A true analogy [to the Wyman v. James situationi would be somewhere else than in the recipient's an Internal Revenue Service requirement that in order to claim a dependency exemption, a taxpayer must home." allow a specially trained IRS agent to invade the home for the purpose of questioning the occupants and In considering the reasonableness of looking for evidence that the exemption is being prop- erly utilized for the benefit of the dependent. If such the search, the Court focused again on a system were even proposed, the cries of constitutional the home outrage would be unanimous". Id., at 343. the rehabilitative aspects of 209. Id., at 319-20. and the protection of the child 210. The findings of J. Handler & E. Hollingsworth, supra visit, note 193, indicate that welfare clients' attitudes toward from exploitation, presumably through the unannounced home visit vary according to the clients' own experience. A majority of clients who had his or her serving as a "dependent child" experienced unannounced visits (60%) felt that they were "all right", while those who had not experienced for welfare purposes to more than one unannounced visits disapproved of them. Id., at 11. 210 The authors themselves thought that it was "extremely woman. unfortunate that caseworkers do not have the courtesy to telephone in advance and that such a practice is Wyman v. James involved New York's accepted by welfare recipients". Id., at 19. The Handler and Hollingsworth study took place in Wisconsin. welfare administration, and the Court 211. See v. City of Seattle, 387 U.S. 541 (1967) involved a fire inspection of a commercial warehouse. The ini- stressed that state's laws' respect for the tial warrantless visitation was described only as "rou- tine" and "periodic". Id., Camara v. Municipal Court, welfare recipient. The visit in New York 387 U.S. 523 (1967) also involved a routine inspec- tion. Id., at 526. After plaintiff's initial refusal to per- is never unannounced; privacy is empha- mit the housing inspector to enter, the inspector re- turned again, after two days. The plaintiff received sized; outside sources are checked only still another visitation, and again refused entry, before a complaint was filed against him. ld., 526-27. with the client's consent; forcible or 212.400 U.S. at 321-22. 213. See supra, note 200. fraudulent entry or visitation outside of 214. 400 U.S. at 322-23. PAGE 276 THE BLACK LAW JOURNAL PAGE 276 THE BLACK LAW JOURNAL nal conduct". 215 Other citizens, of course, poverty is proof of inadequacy, from do not have the sanction and force of the which their children must be carefully state behind them in securing entrance to guarded. But poverty for a woman is the homes of others, as does the case- more likely than for men to be induced worker. and maintained by structural biases - Finally, the Court discussed the war- the same structural biases that dictate less rant procedure "which the plaintiffs ap- compensation in employment, and that pear to claim to be so precious to them. limit employment opportunities. 22 De- .. 216 This procedure, said the Court, is spite this, as the majority of the Court has objectionable in the welfare context be- made clear, the Supreme Court's attitude cause it could be applied for ex parte, its toward the welfare mother, like its atti- 221 execution would require no notice, and it tude toward women generally, is col- would justify entry by force and without ored by these structural and perhaps cul- limitation as to time. 217 The caseworker, tural biases. It appears, for example, to moreover, would not have to show very share with the public at large the notion much in the way of probable cause: that: merely her or his need to see the child ...the AFDC mother is * in short, in the home and have the assurance that a minor criminal - a vagrant, an adulter- the child is there, and is receiving aid. It ess, a fornicator - in a nation where would seem, however, that the caseworker criminal laws condemning this kind of can receive assurance elsewhere than in conduct have died either through disuse or repeal. The sanctions differ - she suf- the home unless he or she has probable fers no assistance or more restricted as- cause to believe the child is not in the - yet 2 18 sistence instead of imprisonment home, or is not receiving aid. she is penalized for conduct which in the rest of us is widely regarded to be none A more pertinent reason for character- 222 izing the home visit as either not a search of the public's business. or as a reasonable search is that the ne- cessity for a warrant would introduce an 215. Id., at 323. 216. Id., at 323-24. It has been pointed out that to require element of hostility into a program de- a warrant for the unconsented home visit would "recast supportive. 21 9 the caseworker's relationship to the recipient in an signed to be beneficial and adversary mold, like that of any government inspector to an inspectee". Note, Rehabilitation, Investigation If the home visit is beneficial and sup- and the Welfare Home Visit, 79 Yale L.J. 746-751 (1970). portive, however, the recipient would 217. No matter where are how the caseworker seeks to obtain information regarded as necessary, however, have little reason to refuse consent. If she constitutional problems may arise. An interview away from the home may, it has been suggested, run afoul consents, a warrant is not necessary, and of Katz v. United States, 389 U.S. 347 (1967), "where the attachment of A listening d evice to a teleph e no element of hostility will ever be in- booth was held to constitute a search because the defendant 'justifiably relied' on his words remaining troduced. If she does not consent, the private and not being used subsequently as evidence against him in a criminal prosecution". Id., at 754 element of hostility is already there and To the extent that the caseworker performs services, by the warrant if he or she elicits information which, under the cir- can hardly be caused cumstances, the client may reasonably believe to be it should then be issued. As matters now confidential. Id. 218. Supra, note 216. stand, the visit is coercive in that refusal 219. Because she is the recipient of a non-contributory system, and has therefore not "earned" the benefits of consent leads to termination of bene- (as, for example, have the beneficiaries of social in- surance) the AFDC mother is seen as less worthy fits. Since it is now coercive, its rehabili- than other mothers, whatever her personal competence may actually be. J. Handler and M. Rosenheim have tative purpose may already have been contrasted the public assistance and insurance bene- ficiary: "But most important of all, perhaps, the pri- undermined; the mother may not feel in vacy of the insurance beneficiary in this regard is pro- tected significantly by the feeling that he belongs to need of any services that are offered and a worthier class than the assistance recipient and should not be subjected to intensive personal scrutiny" may well feel herself competent to ask Prisacy in Welfare,, Public Assistance and Juvenile Justice, 31 Law and Contemp. Prob. 377, 387 (1966). for them should the need arise. 220. See notes 56-60 supra, and accompanying text. 221. See B. Brown, T. Emerson, G. Falk, & A. Freedman, It would seem that the majority in The Equal Rights Amendment: A Constitutional Basis Jor Equal Rights jor Women, 80 Yale L. J. 871, 875- Wyman v. James believed that the poor 82 (1971). But thi attitude may be changing. See Reed v. Reed, 404 VJ.S. 71 (1971), and the concurring must be guarded against, are not to be opinion of Mr. Justice Douglas in Alexander v. Louisi- ana, 405 U.S. 625, 634 (1972), on the discrimination trusted, must be continually watched, par- against women in the selection of jurors. 222. M. Rosenheim, Vagrancy Concept in Welfare Law, ticularly if they are mothers because their 54 Cal. L. Rev. 511, 555-56 (1966). THE BLACK LAW JOURNAL PAGE 277 THE BLACK LAW JOURNAL PAGE 277 Due process, the right of interstate "The Supreme Court's approach to travel, protection of aliens - all of these women's rights has been characterized, are in a sense neutral: that is to say, they since the 1870's, by two prominent fea- have equal relevance to everyone, regard- tures: a vague but strong substantive be- less of race, class or sex. Is freedom from lief in women's 'separate place', and an search, or the penumbral right of privacy, extraordinary methodological casualness somehow different? Warehouses, farmers, in reviewing state legislation based on business establishments, taxpayers - all such stereo-typical views of women... 224 are protected from unreasonable search- As Congresswoman Martha Griffiths es. 223 But poor women are not; the home tersely observed, with respect to the ne- visit, for them, is neither a search nor an cessity of an equal rights amendment for unreasonable search, but "help". And women, "This fight is with the Supreme 22 because the mother's rights are, accord- Court". ' The result of the Court's fail- ing to the Supreme Court, subordinate ure to recognize, let alone properly char- (even when guaranteed by the Constitu- acterize, the problem has been a "cumu- tion to others) to her child's, she is some- lative judgment" that a sex-based classi- how suspect for even raising them. Per- fication does not violate the equal pro- haps this is but a function of the general tection clause, "'rendered . . . with an failure to afford women any privacy at off-handedness and tolerance for incon- all. There is the rankling recognition sistency which areas of race, national '226 2 27 among women that, while being denied origin, and poverty. Reed v. Reed access to the public life, they have had did little to redress the imbalance because not even their private life respected. This it did not come to grips with the usual disregard is magnified in the case of the reasons for discrimination against women: poor, who traditionally lack privacy. In protection of their childbearing capac- 228 229 the case of Mrs. James, freedom from ity; and protection of the family; and search was denied in order to protect her protection of morality.2 Women, more son along with the public purse. The pro- than men, are seen as uniquely in service tection of children is a worthy concern, to the species. demanding of the law's meticulous atten- Women who are discriminated against tion. But the Court's opinion, written by because they are Black, or alien, or poor Mr. Justice Blackmun, betrays itself. The are protected; women who are discrimi- child is not only to be protected, but pre- nated against because they are women ferred over his or her mother who is are not. A woman asserting that her right denied what was freely granted to com- to interstate travel should not be damp- mercial warehouses: security from war- ened becaused she is ppor has succeeded rantless search. A fire inspector must before the Court 231 in part, one suspects, because such travel was not perceived as have a warrant, even though a fire, should 232 it break out, could kill scores of people. conflicting with her role as a mother. The unsuspecting public is no less vul- But a woman asserting her freedom from nerable than the small child, and the unreasonable search finds the Supreme child may be gravely damaged by the "visit", or search, through a realization of the stigmatizing lack of privacy. 223. See the dissenting opinions of Justices Douglas and Marshall in Wyman v. James, 400 U.S. 309, 326, 338 The question must be asked, if only in (1971). 224. B. Brown, T. Emerson, G. Falk & A. Freedman, supra order to identify a problem, why women note 221, at 876. rights fare so badly 225. Hearings on S.J.Res. 61 & S.J.Res. 231 Before the asserting individual Senate Committee on the Judiciary, 91st Cong., 2d context when those rights Sess. 228 (1970). in the welfare 226. B. Brown, T. Emerson, G. Falk, & A. Freedman, are perceived as role-related. "Role" in supra note 221, at 876. 227.404 U.S. 71 (1971). this connection is that which is apparently 228. Muller v. Oregon, 208 U.S. 412 (1908). 229. Id., and Bradwell v. State, 16 Wall 130. understood by a majority of the totally 230. Goesaert v. Cleary, 335 U.S. 464 (1948). 231. Shapiro, v. Thompson 392 U.S. 618 (1969). male Supreme Court of the United States. 232. See note 169, supra, and accompanying text. PAGE 278 THE BLACK LAW JOURNAL PAGE 278 THE BLACK LAW JOURNAL Court denying even her right to assert may have no relation Whatever to her the right, because it is perceived as role- personal morality. This is a separate related and possibly as conflicting with question, and ought to be no more the that role. 233 This was a factor not present business of the state here than elsewhere. in Reed v. Reed, and it is difficult to say Suitable home policies, like the home whether that opinion is another example visit, are an integral part of the program of "methodological casualness" or the in many places. 24' Because of them, the first indication of an evolving new method AFDC mother has been subjected to a of constitutional review. cruel dilemma, imposed on the one hand by the state, and on the other by the Benevolent Intrusions and Personhood: federal government. The Social Security The Case for Recognition Act requires that all available resources The AFDC mother suffers from more be taken into account in computing 242 "benevolent intrusions" than any other need. In the AFDC program, "the public assistance clients, 234 because she resource requirement must be pursued to has children, who may be as old as the point of notifying law enforcement twenty, under her care.235 According to officials if need is caused by the desertion '' 243 the state in which she lives, the AFDC or abandonment of a parent. Instances mother may be subject to midnight or of illegitimacy must also be reported to predawn raids (to find a man in her establish paternity and to secure support 244 home), 236 or to intimate inquiries con- from the father for the child. The fed- cerning her moral conduct. 237 Although eral act speaks in terms of establishing a her personal behavior can no longer pro- state program for these purposes, to be vide a reason for denying funds to her administered by a single state or local children, it can lead to their removal from agency which may enter into coopera- the home, whether or not such conduct tive arrangements with appropriate courts 245 has an actual effect on the way in which and law enforcement officials. These she cares for them. 238 "Suitable home" provisions are known as the NOLEO, or rules are in force in several states; such notice to law enforcement officials, re- rules permit payments only to those par- quirements. While theoretically applic- ents who maintain such a home. 239 While able to either parent, the NOLEO re- theoretically applicable to anyone caring quirements have practical operation only for small children, and to all kinds of on mothers, who may be asked to report 246 behavior, in fact the suitable home pol- an abandoning or putative father. The icy's application "runs primarily to moth- father may then be subiect to enforce- ers whose sexual conduct elicits commun- ment of his support obligations through ity disapproval": appropriate civil or criminal actions. Al- Disapproved behavior is usually infer- red from the fact of giving birth to one 233. See note 184, supra, and accompanying text. 234. See U.S. Dep't. of Health, Education and Welfare, or more illegitimate children. This leads Handbook of Public Assistance Administration pt. IV, one to wonder whether it is sexual im- § 2200 (d). 235. 42 U.S.C. § 606 (Supp. V, 1970). morality or the birth of potential public 236. This practice is yet to be reviewed by the Supreme 237. See Saiz v. Goodwin, 325 F. Supp. 23, 24 (N. Mex. charges that is the object of attack. "Both" 1971), citing the New Mexico regulation which requires is probably the answer. In any case, the specific inquiry of tlie mother regarding the date of conception of an illegitimate child, her promiscuity, question that presents itself is the intrinsic her frequency of contract with the putative father, the names of corroborating witnesses who could establish soundness, in an income maintenance pro- the relationship of the mother with the putative father, gram, of legislative restrictions that re- and specific facts concerning intercourse at or near late to a mother's personal moral code or the date of conception. 240 238. See notes 20, 192, stipra. the legal status of the child. 239. Id. 240. J. Handler & M. Rosenheim, Privacy in Welfare: Pub- lic Assistance nad Jul-enile Justice, 31 Law & Contemp. Even if the desirability of some suitable Prob. 377, 388 (1966). 241. See notes 20, 192, supra. home policy is conceded, the question 242. See note 21, supra. 243. 1 CCH Poverty Law Reports 1310 (1969). should be confined to the mother's capa- 244. See note 21, supra. 245. Id. bilities of caring for her children, which 246. 1 CCH Poverty Law Reports 1310 (1969). THE BLACK LAW JOURNAL PAGE 279 THE BLACK LAW JOURNAL PAGE 279 though state procedures vary, and al- issues, James was not in point. The plain- though HEW regulations advise against tiff's victory in Meyers was not a per- it, in some states a mother was required sonal one, and the judgment did not vin- to institute paternity proceedings against dicate any right claimed by her. Its ra- the father as a condition to receiving tionale was that the AFDC program is for AFDC assistance.247 The idea is, of the children, whose benefits may not be course, that the father rather than the terminated to coerce the cooperation of state should support his children, 248 but the mother. the mandatory paternity suit has been Another federal court viewed the ques- criticized as a means of achieving such a tion differently and interpreted Wyman 257 sensible goal. 249 Her enforced coopera- v. James not only as permission to the tion may ruin any chance the mother may states to use children as a lever to pry have had for establishing a stable rela- information from the mother, but also tionship with the father, and it may result as a basis for its conclusion that "nothing in her prosecution for fornication or adul- of constitutional magnitude is involved." 205 tery or perhaps neglect. Saiz v. Goodwin refused to convene a reasons, state im- three-judge court, but the judgment was For these and other 258 plementation of the NOLEO require- vacated and remanded on appeal. The ments have several times been challenged merits of Mrs. Saiz's argument were not in the federal courts, 251 and reached the reached. She had rested her case on her Supreme Court last term. Unfortunately, right to privacy and equal protection as although the Court affirmed decisions in secured by the Fourteenth Amendment. favor of the welfare recipients, there are Citing Wyman v. James, the lower court 252 no opinions. held that "a regulation promulgated under Most of the challenges below were suc- a state statute which constitutes a reason- cessful on statutory grounds. In Doe v. able administrative tool; that ... serves a Shapiro,253 for example, the plaintiff valid and proper administrative purpose mother attacked a state regulation re- for the dispensation of the AFDC pro- quiring her to be able to identify, and gram . . . is not an unwarranted invasion '259 to identify, the father as a condition of of personal privacy. Wyman had held receiving assistance for her children. Al- that the Fourth Amendment could not be though the plaintiff offered several con- utilized as a wedge for imposing a recipi- stitutional arguments, the three-judge dis- ent's own informational terms upon the trict court held the regulation invalid on dispensing agency. The lower court in the ground that it imposed a condition of eligibility not required by the Social Se- 247. Id. 248. On NOLEO's underlying rationales, see M. Rosen- curity Act. Constitutional arguments of heim, supra note 222, at 542. 249. Comment, AFDC Eligibility and the Mandatory Pa- due process and equal protection were ternity Suit, 10 J. Fain. L. 174 (1970). 250. Id., at 174-75. See e.g., State v. Clark, 58 N.J. 72, 275 dismissed, although the plaintiff's conten- A. 2d 137 (1971), where a mother's admission to re- lations with the putative father, made in a welfare tion that the requirement deprived her proceeding, was used to obtain a fornication convic- of her privilege against self-incrimination tion. Although reversed on Fifth Amendment ground 2 by the state supreme court, the case illustrates the received less summary treatment. 54 risk of prosecution borne by the welfare mother. 251. The issue had split several federal panels across the country. See, e.g., Doe v. Shapiro, 302 F. Supp. 761 An Oregon case, affirmed by the Su- (D. Conn. 1969); Doe v. Swant, 332 F. Supp. 61 (N.D. I11.1971), a]j'dmem. sub. nom. Weaver v. Doe, 404 preme Court in a memorandum opinion, U.S. 907 (1971); Meyers v. Juras, 327 F. Supp. 759 who, (D. Ore. 1971), ajj'd mem. 404 U.S. 803 (1971); also held for the plaintiff mother Saiz v. Goodwin, 450 F. 2d 788 (1971), ajj'd mem. the Ore- 40 U.S.L.W. 3562 (U.S. Dec. 7, 1971). in Meyers v. Juras, had attacked 252. The affirmances were by memorandum opinions. gon regulation making compliance wtih 253. 302 F. Supp. 761 (D. Conn., 1969). 254. Comment, AFDC Eligibility and the Mandatory Pa- NOLEO procedures a basic eligibility ternity Suit, supra note 249, at 178. 255 255. 327 F. Supp. 759 (D. Ore. 1971), ajj'd mere. 404 requirement. Oregon argued that Wy- U.S. 803 (1971). 256 256.400 U.S. 309 (1971); see supra notes 188, 219 and man v. James supported its program, accompanying text. 257. 400 U.S. 309 (1971). but since the three-judge district court in 258. 325 F. Supp. 23 (N. Mex. 1971), vacated and re- manded 450 F. 2d 788 (1971). Meyers never reached the constitutional 259. 325 F. Supp., at 25. PAGE 280 THE BLACK LAW JOURNAL PAGE 280 THE BLACK LAW JOURNAL Saiz saw Mrs. Saiz's "assertion" of Four- the state for the purpose of securing the teenth Amendment rights as an attempt quiet conformity of the mother, which to impose a similar wedge. Indeed, the the district court in Saiz frankly admitted: tenor of the opinion is an echo of the * ' .these mothers would have common majority opinion in Wyman, with similar interest in seeking, or at least acquiescing, in efforts which might be made to procure observations (respecting or disrespecting) 2 65 the mother. Said the district court: paternal support for their children. Has not the child's right of privacy been These mothers might also have an inter- destroyed? Has not the mother already est in attempting to solidify rather than effectively prejudiced her right of privacy? imperil any stable relationship with the The only party whose right of privacy is father that might be developing, and sought to be protected is the father whose duty by statute is to maintain and support which might be destroyed by compli- the child .. . I cannot envision the doc- ance with departmental regulations. Such trine of constitutional right of privacy mothers may wish to assure that their established in Griswold v. Connecticut... children will know their fathers in a extended to protect a reluctant parent 2 60 "normal" family unit. Perhaps if Mrs. under these circumstances. Saiz had cast her argument in such terms, The effect of this holding was that in the district court judge would have been order to qualify her children for aid, a more receptive. Unfortunately, she had mother must answer questions concerning the temerity to suggest that her rights her "promiscuity"; frequency of contact were in issue and ought not be so jeop- with the putative father; the possible cor- ardized. She was thus perceived by the roborative witnesses; and "specific facts district court judge as asserting a right establishing an act of intecourse with which conflicted with his notion of her the putative father at or near the date of role as mother. Mrs. Saiz did cite Doe v. conception". 261 It staggers both the imagi- Shapiro26 in support of her constitutional nation and common sense to think that position, and while Mrs. Saiz appears not this is not the kind of privacy Griswolar26 to have offered the point, Mrs. Doe protects, unless the district court intended did emphasize the children's rights. She to emphasize, which it did not do, inti- claimed that her children's Fourteenth •macy in marriage alone as being within 26 Amendment right of equal protection was the penumbra of privacy. 3 violated by the creation, in Connecticut, If a woman wishes to bring paternity of two classes of needy, illegitimate chil- proceedings, then, of course, she has vol- dren, indistinguishable from one another untarily relinquished privacy; if she vol- "except for the obstinacy of their moth- untarily reveals the name of her baby's ers". 6 7 This argument was never passed father, she has similarly chosen to relin- upon in the Connecticut case, however, quish privacy. So long as extramarital re- and the New Mexico judge, after refer- lations are criminal in theory even if not ring to it, expressly stated that he found 2 prosecuted in fact, however, she ought no constitutional violation. 6 not be compelled by the state to reveal the details of her sexual activity to a wel-

fare worker or to anyone else, even 260. Id., at 26. 261. See supra, note 238. though the use to which such revelations 262. Griswold v. ConnectiCut, 381 U.S. 479 (1965). .26 263. There are many references to intimacy in the marital can be put is limited The risk of prose- relationship in Griswold. However, Eisenstadt v. Baird, risk of 405 U.S. 438 (1972) invalidated a Massachusetts stat- cution is high, even though the ute limiting the accesS of unmarried persons to con- conviction is not. More seriously, when traceptives. 264. See generally Comment, AFDC Eligibility and the made a condition of welfare eligibility, Mandatory Paternity Suit, supra note 249. See also State v. Clark, 58 N.J, 72 (1971). the sanction for refusing to surrender pri- 265. 325 F. Supp., at 26. 266. Id. vacy is not jail, not a fine, but support 267. 302 F. Supp. 761, 76 (D. Conn. 1969). 268. 320 F. Supp., at 27. The tenth circuit found the pres- of a child. Using a child in such a manner ence of a constitutional question and ordered the con- vening of the three-jitdge district court. 450 F. 2d at is a kind of exploitation of the child by 790. THE BLACK LA W JOURNAL PAGE 281 THE BLACK LAW JOURNAL PAGE 281 The NOLEO requirements reached dren. From Levy and Glona to Labine the Supreme Court, which affirmed the and finally to Weber2 70 the personhood of district courts which found the disclosure these children under the Constitution was and mandatory paternity suit require- established, limited, and then reconfirmed ments in conflict with the Social Security in Weber, with the limitation of Labine. Act as imposing an eligibility requirement The Weber case is important for its rec- in addition to those created by Con- ognition of the essential innocence of the gress. 269 The constitutional issues were children, and also because the majority not reached. opinion seems to have undermined Dan- In the absence of opinions on the ques- dridge v. Williams2 71 in its removal of tion, it cannot be known whether the socio-economic legislation from the Four- attitude underlying Wyman v. James and teenth Amendment. Indeed, it is difficult reflected in Saiz v. Goodwin still prevails to say now where equal protection con- on the Court. When the opportunity cepts are going. After Weber, however, arises, it is to be hoped that women, the conceptual framework should permit whether welfare mothers or not, will be a reassessment of the Supreme Court's as- regarded as full persons whether they sessment of the status of women. Weber have children or not. The fact that a spoke in terms of fundamental personal woman may be asserting her own right interests, and weakened the latitude given of privacy, or of equal protection, or of the states in social and economic legisla- due process, or her right against self- tion.27 2 This may argue well for welfare incrimination, rather than the right of mothers. It remains to be seen how in- her children, ought not prejudice her case. dividual personal rights of a fundamental Only then can the merits of the case be nature will fare when asserted by women examined, unhampered by the expecta- against a claimed state purpose to foster tion that a poor mother ought willingly family life. Much will depend on what to forego her constitutional rights in order the new Court chooses to call "funda- to secure food for her children. The idea mental" to begin with. Even more will of self-sacrifice is not denigrated here; depend on whether it continues to adhere what is protested is the state's and the to the conceptual framework of strict and court's requiring it. Constitutional pro- permissive review, of fundamental inter- tection against self-incrimination is worth- est and suspect classifications, of compel- less, for example, if judges perceive with ling and rational state interests. Predic- respect to women, or women who are tion at this juncture is riskier than usual. mothers, that there is no "self" to in- criminate. The NOLEO cases could have af- 269. See note 251, supra. forded an opportunity for a development 270. See notes 159-60, supra, and accompanying text. 271. 397 U.S. 471 (1970). paralleling the cases on illegitimate chil- 272. See notes 152-60, supra, and accompanying text.