United States House of Representatives
Washington, DC  20515

Re:  The Personal Responsibility, Work, and Family Promotion Act of 2003/H.R. 4

Dear Representative: 

The American Civil Liberties Union (ACLU) strongly urges you to oppose H.R. 4, the Personal Responsibility, Work, and Family Promotion Act of 2003, which is expected to receive a floor vote on Thursday, February 13, 2003.  H.R. 4 would reauthorize the Temporary Assistance for Needy Families (TANF) programs.  Reauthorizing legislation must implement adequate safeguards to guarantee basic constitutional principles of equal protection, freedom of speech and religion, privacy rights, and due process in the administration of TANF programs.  H.R. 4 falls woefully short in promoting these principles, and in some cases, takes significant steps to undermine them.  Not only does it fail to address the deficiencies of the current system crucial to meeting the needs of welfare recipients so that they can become self-sufficient, but it exacerbates existing problems in TANF, by increasing work requirements and penalties, and by limiting education, training, counseling, and treatment. Representative Cardin and Representative Kucinich are expected to offer amendments in the form of substitute bills that will address many of the issues outlined in this letter.  We strongly urge you to support these substitute bills.[1]

I.    H.R. 4 Establishes Demonstration Projects That Allow States to Waive Important Federal Protections.

Section 601 of the bill contains a demonstration project provision, often referred to as a ""superwaiver,"" that would grant broad discretion to cabinet secretaries to waive statutory and regulatory requirements.  Granting such authority to the Executive without Congressional oversight or any means for independent evaluation greatly undermines the separation of powers between the Legislative and Executive branches of government because the Executive could freely waive laws enacted by Congress. 

The ACLU believes the super-waiver poses serious dangers to a broad cross-section of federal programs and the people they serve. The super-waiver would allow the transfer of substantial resources from one program to another, undermining congressional appropriations. For example, the Secretary of Education could waive any rules related to federal education funding, including formulas that direct resources to low-income children.  More significantly, the super-waiver would permit the elimination of important protections for people served by federal programs (i.e. public housing programs, programs for the homeless, food stamp programs, adult education programs, child care and development programs, etc.), with no opportunity for input or oversight on the part of affected communities. 

The ACLU understands the importance of state flexibility in federal programs. However, this can be accomplished through waiver authority that Congress targets to areas where it has been demonstrated that waivers may help states operate programs more effectively, rather than by Congress allowing sweeping waivers of federal standards across all TANF programs.  The substitute bills allow Congress to continue to target areas and grant waivers where appropriate.

II.     H.R 4 Fails To Ensure That TANF Programs are Administered In a Fair and Equitable Manner.

One of the fundamental purposes of TANF is to provide assistance to needy families and children. 42 U.S.C. § 601(a).  Yet, in application, TANF provides assistance to some needy families while arbitrarily denying benefits to others who are equally in need of assistance. Current law excludes certain immigrant populations, drug offenders, and children from eligibility for benefits.  The disparate treatment of immigrants is a clear example of the parity issues that exist within TANF. The TANF program discriminates against immigrants in three ways.  First, it excludes altogether ""unqualified"" immigrants, which include many immigrants legally permitted to remain in the United States without permanent residence.  Second, for legal permanent residents, it imposes five and ten year bars on eligibility for many federal programs.  Third, even after those bars expire, new ""sponsor deeming"" rules continue to render most immigrants ineligible for assistance.  Although H.R. 4 adopts poverty reduction as a primary purpose of TANF, it maintains these discriminatory exclusions, which further entrench people in poverty.  In contrast, the substitute bills would revise the harsh immigrant provisions in the 1996 law by restoring TANF and Supplemental Security Income (SSI) eligibility to non-citizens who are legally residing in the country.

Other equal protection problems involve families who are disadvantaged because states have failed to disseminate information and services on a nondiscriminatory basis to all eligible benefit recipients.  States have often failed to accommodate the needs of eligible recipients with limited English proficiency or with disabilities.  While women are given information about traditionally female jobs, a number of caseworkers fail to provide information that will allow women to pursue non-traditional higher paying positions.  Reports indicate that recipients of color have an additional burden in that they receive fewer supportive services and are more likely to be sanctioned for non-compliance with program rules than are their white counterparts.  In order to begin to address these disparities, reauthorizing legislation must, at a minimum, clarify that labor and civil rights laws, including Title VII and Title IX, apply to TANF recipients.  This clarification is absent in H.R. 4. 

III.             H.R. 4 Fails to Ensure That Due Process Protections Are Provided.

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) demanded personal responsibility from TANF applicants and recipients as a key to accessing benefits.  As administrators of the TANF program, states have a corresponding public obligation to treat applicants and recipients fairly.   Since the enactment of PRWORA, too often the broad discretion granted to the states and the emphasis on caseload reduction above all else have eclipsed commitments to fairness. This results in arbitrary and inconsistent treatment of applicants and recipients, widespread misinformation about the availability of benefits and about program requirements and an absence of meaningful procedural safeguards permitting individuals to seek review of administrative decisions.  Such due process failures have a serious impact on low-income parents as they simultaneously attempt to negotiate program requirements, fulfill work obligations, and raise their children.  Arbitrary treatment, misinformation, and an absence of meaningful appeal and review procedures can push such families out of the social safety net and into dire need.  H.R. 4 completely ignores the procedural due process failings of the current TANF program.

Currently, PRWORA requires states to submit plans that ""set forth objective criteria for the delivery of benefits and the determination of eligibility and for fair and equitable treatment, including an explanation of how the State will provide opportunities for recipients who have been adversely affected to be heard in a State administrative or appeal process.""  42 U.S.C. § 602(a)(1)(B)(iii).  However, standing alone, this requirement has been insufficient to ensure procedural fairness for TANF applicants and recipients.  Across the country, examples of arbitrary and unfair treatment abound.  

Many states have taken the option of punishing adult TANF recipients' failure to comply with program and work requirements through termination of all cash assistance to the family, including assistance allotted to children.  Punishing individuals for the actions of others outside of their control violates core due process principles, and the violation is even more egregious when the individuals being punished are children.  Instead of addressing due process failures, section 110 of H.R 4 expands this mean spirited approach by allowing states to reduce or terminate benefits completely for a partial failure to comply with TANF program requirements within a 1-month period. More disturbing, the bill does not define a partial failure, leaving the interpretation entirely to the discretion of the same states currently violating the due process rights of many recipients.  For example, a state can define partial failure as failing to meet the 24-hour workweek requirement. Under these circumstances, a mother could potentially lose all cash assistance if she is absent from her job to take care of a sick child more than once within a month.

IV.   H.R. 4 Fails to Address Employment Barriers That Hinder Recipients From Transitioning into Stable Long-Term Employment.

TANF reauthorizing legislation must address the core issues that prevent people from becoming self-sufficient.  Many adult recipients have circumstances or conditions that impede their ability to find and maintain employment.  Although H.R. 4 rewards states for decreasing the welfare rolls, it offers little incentive to states to encourage them to address educational, physical, and mental barriers that prevent recipients from securing long-term employment. The bill requires states to perform a skills assessment, yet it neglects to address the more crucial problem - the needs of the individual that must be met before an individual can function effectively in an employment setting. H.R. 4 also narrowly defines and limits what can be considered a ""work activity"" thereby reducing the options available to states to design effective programs to accommodate special needs of recipients.  

Many states have failed to make TANF programs available and accessible to individuals with special needs, including those who speak little English and those with mental or physical disabilities.  Reauthorizing legislation should ensure that states provide interpreters and educational and application materials in languages other than English, and that states accurately assess the disability status of applicants and recipients and take any disability into account in imposing program requirements.  Before attempting to find job placements for TANF applicants, states should conduct an initial assessment of each individual in order to determine what support services may be necessary to address any employment barriers, such as disability, mental illness, or substance abuse, that may exist.  A failure to conduct such assessments and to take special needs into account can lead to inappropriate sanctions reducing or eliminating a family's benefit and thrusting the family into a dire situation.  Under the substitute, new demonstration projects would be established to increase the compensation for low-wage workers and to improve employment outcomes for welfare recipients with multiple barriers.

V.     H.R. 4 Endangers the Lives of Young People by Funding Programs that Focus ""Exclusively"" on Abstinence.

While the ACLU believes that discussion of abstinence is an important component of any educational program about human sexuality, we oppose programs that focus exclusively on abstinence and censor other valuable information that can help young people to make responsible and safe decisions about sexual activity and reproduction. Moreover, in addition to their restrictions on free speech, abstinence-only-until-marriage programs endanger the health of young people, create a hostile environment for lesbian and gay youth, and dangerously entangle the government with religion. 

There are no compelling data that demonstrate that abstinence-only programs funded under Section 510 are effective in helping to delay sexual initiation or in reducing risk-taking behaviors among young people. In fact, the overwhelming weight of evidence suggests that programs that include messages about both abstinence and contraception are most effective in delaying the onset of sex among young people, reducing the number of sexual partners they have, and in making them better users of contraception when they do become sexually active. Evidence also suggests that the availability of federal abstinence-only dollars is steering schools away from teaching comprehensive sexuality education altogether, even in their non-restricted (i.e. non-federally funded) programs. According to one study, as of 1999, one-third of the nation's high schools were promoting abstinence-only education, while excluding information about contraception and safer sex. See Adam Sonfield and Rachael Benson Gold, States' Implementation of the Section 510 Abstinence Education Program, FY 1999, 33(4) Family Planning Perspectives 166 (2001).  

Moreover, federal abstinence-only dollars are being used to fund pervasively religious programs in violation of the Constitution. In July 2002, a federal court enjoined Louisiana's federally funded abstinence-only-until-marriage program, holding that the program habitually funded projects that conveyed religious messages in violation of the Constitution.

We expect that language that would mitigate the serious harms of the current abstinence-only program will be included in the substitute bills that will be offered on the House floor. This language would (1) allow states the flexibility to fund abstinence-based programs that also educate teens about methods to reduce unintended pregnancy and prevent other health risks, (2) require that funded programs be medically and scientifically accurate, (3) deny funding to programs that are not proven effective after a rigorous scientific evaluation process, and (4) authorize a comparative evaluation between abstinence-only programs and more comprehensive programs. We urge you to support the language contained in the substitute bills. 

VI.       H.R. 4 Weakens the Separation of Church and State and Allows Government Funded Employment Discrimination. 

H.R. 4 explicitly permits an unprecedented church/government relationship and undermines nearly sixty years of federal civil rights laws against most uses of federal money by persons engaged in employment discrimination based on religion. Although current law allows religious organizations to use their own private money to prefer members of their own religion, they generally cannot use federal funds to discriminate. Congress and the Executive Branch have further extended the prohibition on federally funded religious discrimination by adding statutes and regulations affecting a wide range of federal contract and grants programs. HR 4 does nothing to address the problems that exist in the current law. In fact, Section 112 of this bill instructs the states to develop strategies ""to engage religious organizations in the provision of services funded under this part and efforts related to section 104, of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.""

The "religious organization" language would allow federal funds to flow directly to religious organizations, which directly violates the Establishment Clause of the First Amendment. Although the Supreme Court has allowed religiously affiliated organizations to provide government-funded services in a secular manner, it has never allowed religious institutions themselves to receive direct government aid. While this language was passed under the last administration, it was never interpreted or implemented in a manner that would jeopardize the religious liberty or civil rights of taxpayers, beneficiaries, or religious providers. 

In addition to violating the Establishment Clause, government-funded religion also jeopardizes religious liberties that are protected under the Free Exercise Clause.  TANF recipients do not concede their First Amendment rights simply because they are in need of a social service.  Yet religious organizations funded under the TANF program can potentially discourage recipients from exercising their own religious beliefs, which are protected by the Free Exercise Clause of the First Amendment.  From a religious institution's perspective, however, a recipient's right to express his or her religious beliefs may endanger the effectiveness of the social service program, particularly in a group setting.  These dilemmas apply with equal force to individual employees seeking to serve their community through religious contractors.  

VII.        H.R. 4 Violates Core Privacy Principles By Authorizing New Uses of Personal Information Gathered for State Child Support Enforcement. 

In 1996, the Congress established the National Directory of New Hires (NDNH), a database used to track state child support obligations.  At the time, the ACLU and other privacy advocates acknowledged state governments' interest in child support enforcement, but warned that the NDNH and other databases went far beyond the tools necessary to address the problem.  We argued that by creating such a massive database of information, the NDNH invites both government and private industry to think of new ways to use the information in the database for purposes that may be totally unrelated to states' original interest in a functioning welfare system and child support enforcement.   

As predicted, the states and private industry have proposed new uses for the information stored in the NDNH database that would take us further down the path toward a national ID and nationwide tracking system.  Private debt collection agencies want access to the database to enforce child support orders and Section 306 of H.R. 4 would allow states to use the database for the purpose of unemployment benefits.  Both of these proposals raise serious privacy concerns and go far beyond the original justification for the NDNH database. Granting private sector access to the database would set a precedent likely to be cited to justify many future requests from the private sector for similar access.  Congress should resist this ""mission creep.""   The NDNH should not be used as a surveillance tool to track individuals or serve as the basis for a national ID.    

Section 306 is particularly troubling because it has nothing to do with child support enforcement -- the purpose for which the NDNH database was created. It would allow state governments access to NDNH to assist them in eliminating fraud in the unemployment system. Fraud in the unemployment system has no relationship to TANF or child support enforcement.  Once the NDNH database is opened up for other purposes, state and local entities will line up with requests to access the system.  Congress should draw a hard line and resist the temptation to open up the NDNH and other government databases for purposes beyond state child support enforcement.  By allowing access for other functions, Congress would go beyond the original justification for the database, violate privacy and take us down the road of a national ID system.

VIII.      Data Collection Requirements Contained in H.R. 4 are Inadequate to Identify Discrimination Within TANF.

Since the enactment of PRWORA, there have been increased reports of the disparate treatment minorities receive at the hands of state caseworkers. In contrast to their white counterparts, in a study outlined below, women of color were found to be less likely to receive information about available childcare and healthcare services, were less likely to be given travel vouchers for transportation to their jobs, were less likely to be encouraged to further their education and training to increase their marketability for higher paying jobs, and were less likely to be advised about job opportunities.  Studies of different states have also demonstrated that higher percentages of black recipients were disqualified from TANF for non-compliance with program rules than white participants.[2]  Finally, welfare recipients in many states have reported experiencing discriminatory or insulting treatment by both caseworkers and employers based on their race, ethnicity, or gender.[3] 

The only true method of measuring progress in civil rights compliance within TANF is data collection. Without this information it is difficult to identify parity problems and patterns in states' administration of the TANF program. Disparate treatment cannot be tolerated, particularly given that such treatment affects not only the future of an adult recipient, but also her child.  Reauthorizing legislation must clarify that all labor and civil rights laws apply to TANF recipients and should require states to set out procedures for handling civil rights complaints in the state plans required for receipt of TANF funds.  Further, states should be required to collect data by race and ethnicity to track the outcomes of welfare recipients to detect any disparities.  Just as H.R. 4 requires federal audits to assess states' compliance in demonstration projects, it should also require federal audits to assess states' compliance with civil rights and labor laws. 

Perhaps a greater concern is the almost unprecedented fiscal crisis now facing states, many of which will likely cut social services programs like childcare subsidies, transportation assistance, education and training, to make up for budgetary shortfalls.  According to the National Conference of State Legislatures, state legislatures will face budget deficits of $68.5 billion next fiscal year. By imposing additional mandates on the states, H.R. 4 creates pressure on states to remove recipients from the welfare roles unfairly, which may further exacerbate many of the due process issues outlined above. Further, H.R. 4 freezes TANF funding amid a faltering economy and when at least 8.3 million people are unemployed. We are particularly troubled by the fate of former and present welfare recipients caught in the mire of the economic downturn.  They are now facing a welfare system where the expiration of time limits is imminent and where some former recipients are now barred from receiving additional services.  Even more disturbing is the administration's push to pass a $670 billion tax cut proposal heavily tilted toward the nation's wealthiest households, while freezing the TANF funding for social programs enacted to assist families who are experiencing the most difficulty obtaining the bare necessities to live.

In conclusion, the ACLU believes reauthorizing legislation should improve the TANF program to make a significant difference in the lives of low-income families as they work toward self-sufficiency.  Since poverty reduction is a goal of TANF, it is imperative not only that the substance of the legislation reflect this purpose, but also that the approach to welfare be grounded in a realistic understanding of the barriers and challenges many communities face. H.R. 4 simply ignores this reality. It fails to guarantee basic constitutional principles of equal protection, freedom of speech and religion, privacy rights, and due process in the administration of TANF programs. We urge you to oppose H.R. 4 as it fails to address these constitutional principles and ideals. Instead, we urge you to support the substitute bills. We look forward to working with you as the legislative process continues.