THE AMERICAN CIVIL LIBERTIES UNION
WRITTEN STATEMENT
FOR A HEARING ON
""WELFARE REFORM REAUTHORIZATION PROPOSALS""
SUBMITTED TO THE SUBCOMMITTEE ON HUMAN RESOURCES OF THE HOUSE COMMITTEE ON WAYS AND MEANS
Thursday, February 24, 2005
Laura W. Murphy, Director
ACLU Washington Legislative Office
Lenora M. Lapidus, Director
ACLU Women's Rights Project
The ACLU is a nationwide, non-partisan organization of nearly 400,000 members, dedicated to protecting the individual liberties and rights guaranteed by the Constitution and laws of the United States. Through its Women's Rights Project and Reproductive Freedom Project, the ACLU has long focused on the needs of women, especially those low-income women and women of color who make up the majority of adult recipients of Temporary Assistance for Needy Families (TANF). In addition, through its Immigrants Rights Project, the ACLU has committed itself to preserving the rights of immigrants - a group treated particularly harshly under the TANF program. We believe that reauthorization must ensure that TANF operates fairly and offers meaningful paths out of poverty for families. We appreciate the opportunity to submit this statement for the record to the Subcommittee on Human Resources describing the changes necessary to guarantee that the TANF program operates effectively and consistently with constitutional principles.
TANF MUST NOT ARBITRARILY DENY ASSISTANCE TO DISFAVORED GROUPS OF NEEDY INDIVIDUALS
The purpose of TANF is to provide assistance to needy families and children and to promote job preparation and work.[1] Yet the program provides assistance only to some needy families while arbitrarily denying benefits to others equally in need.
Legal Immigrants and Their Children
Perhaps the most egregious provision of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) was its bar on immigrant eligibility for many federal programs. PRWORA prohibited most legal immigrants from receiving Food Stamps and Supplemental Security Income (SSI) until they had worked in the U.S. for at least ten years. It barred new immigrants from receiving TANF, Medicaid, or assistance from the Child Health Insurance Program for five years, and states were given the option of extending that bar. Thus, legal immigrants were deprived of the very services their tax dollars support. Even when these time-bars expire, new ""sponsor deeming"" rules created by PRWORA continue to render most legal immigrants ineligible for federal assistance. Even more harshly, ""unqualified"" immigrants, which include not only undocumented aliens but also other groups permitted to remain in the United States without permanent residence, were flatly barred from receiving any federal public benefits at all. While some minor adjustments have been made to these discriminatory rules since 1996, as a result of PRWORA most immigrants continue to be denied the federal benefits extended to other similarly needy individuals.
Not only is the law cruelly discriminatory in its treatment of immigrants, it has hurt many citizens as well. According to the Urban Institute, 78% percent of children with immigrant parents are themselves U.S. citizens are eligible for welfare assistance.[2] Because of confusion or fear, many non-citizen parents do not seek the benefits for which their citizen children are eligible, and thus these children do not receive the vital services they need for survival.[3] Reauthorizing legislation should permit legal immigrants to receive public assistance, repeal PRWORA's deeming rules, and require states to perform outreach to non-citizen-headed families, informing them of their children's eligibility for benefits.
Drug Offenders Who Have Paid Their Debt to Society
Federal law currently prohibits individuals who have been convicted of a drug-related felony from receiving TANF or Food Stamps. Even when a person has completed a prison sentence or a drug treatment program and is making every effort to turn her life around, she is still ineligible for federal aid. The intent of PRWORA was to promote personal responsibility, but permanent denial of federal assistance erects new barriers that prevent people who have previously made mistakes from taking responsibility for their lives and starting fresh to become productive citizens. Reauthorization should remedy this discrimination.
Children Born Into Needy Families
For the first time, PRWORA allowed states to refuse to provide benefits to a child conceived and born while a parent was receiving TANF assistance. When reauthorized, TANF should prohibit such child exclusion rules (also known as family caps) as these exclusions discriminate against children based on the circumstances of their birth and punish the child for the poverty of his or her parents. Such a policy is akin to laws that denied children benefits because their parents were not married or because their parents were not legal residents, laws which have been held unconstitutional because of their basic unfairness to the child.[4] The child exclusion is no less cruel and is in tension with fundamental principles of equal protection. In addition, child exclusion laws interfere with a woman's fundamental right to bear a child. By withholding dollars from newborns (and thus reducing the total income available to TANF families), the exclusion creates a government incentive for TANF recipients to end their pregnancies. A law designed to aid needy families should not turn its back on poor children, leaving them to swell the ranks of children in poverty in this country.
TANF REAUTHORIZATION MUST PROTECT AGAINST DISCRIMINATION AND PROMOTE EQUAL OPPORTUNITY
Since PRWORA, states have too often failed to provide services to all TANF applicants and recipients without discrimination. Reports indicate that TANF recipients of color face barriers in moving from welfare to self-sufficiency because they receive fewer supportive services and are more likely to be sanctioned for non-compliance with program rules than their white counterparts. States also have often failed to accommodate the needs of recipients with limited English proficiency, disabilities, and other barriers to employment. In addition, states have tended to push women into low-paying, traditionally female jobs rather than training them for higher wage, nontraditional work.
End Discrimination Against Racial and Ethnic Minorities
Studies show that people of color receive harsher treatment than white TANF recipients under welfare reform. Researchers have found that TANF recipients of color are less likely than white TANF recipients to be referred to important services such as educational programs, transportation assistance, and child care and are less likely to access vital work supports such as Medicaid and Food Stamps.[5] As a result, recipients of color have been less likely to leave welfare for work than white recipients.[6] In addition, higher percentages of black recipients have been disqualified from TANF because of punitive sanctions than white participants.[7] Finally, welfare recipients in many states have reported discriminatory and insulting treatment by both caseworkers and employers based on their race, ethnicity, or gender.[8]
This kind of discrimination cannot be tolerated, as racially disparate treatment shuts down opportunities for women of color and their children and creates a two-tiered welfare system that traps African-American and Hispanic families in poverty. To address these racial disparities, at a minimum, reauthorizing legislation must clarify that labor and civil rights laws protect TANF recipients. Further, states should be required to set out procedures for handling civil rights complaints in the state plans required for receipt of TANF funds.
The only true method of measuring progress in civil rights compliance within TANF, however, is data collection. Without this information it is difficult to identify parity problems and patterns in states' administration of the TANF program. States must be required to collect data by race and ethnicity reflecting diversion of potential applicants, benefits and services provided to recipients, sanction rates, and recipient outcomes. States should also be required to aggregate information to detect racial disparities and to take meaningful action to address these disparities. Just as the No Child Left Behind Act holds schools accountable for improving the performance of students of all races, so should TANF reauthorization hold state welfare programs accountable for helping welfare recipients of all races move out of poverty and reward those states that achieve equitable outcomes.
Accommodate Recipients with Special Needs
Many states have failed to make TANF programs accessible to individuals with special needs, including those who speak little or no English and those with disabilities. Reauthorization must require that states provide interpreters and 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 be required to conduct an initial assessment of each individual in order to determine what support services may be necessary to address any employment barriers, such as limited English proficiency, domestic violence, disability, mental illness, or substance abuse, that may exist. States' current failure to conduct such assessments and to take special needs into account often leads to inappropriate sanctions reducing or eliminating a family's benefit and thrusting the family into a dire situation.
While recipients facing these barriers may be less likely to find employment and leave the TANF rolls prior to the five-year federal time limit, under PRWORA, states are only permitted to exempt 20 percent of their average monthly caseload from the time limit. This arbitrary cap ignores the fact that far more than 20 percent of caseloads may face substantial barriers to employment and self-sufficiency. Thus, without accommodation of their special needs, many recipients facing significant barriers to employment are likely to be left without support when they reach the five-year lifetime limit on receipt of benefits. Reauthorization should permit states to accommodate TANF recipients with special needs by abolishing the 20 percent cap on the hardship exemption.
Open Doors to Opportunity for Women
Many jobs held by TANF recipients, the vast majority of whom are women, will never lift a family out of poverty because the wages from these jobs are simply insufficient to support recipients' families. Studies indicate that caseworkers typically steer TANF recipients into jobs traditionally held by women, which generally pay the lowest wages and that low-income single mothers primarily work in traditionally female occupations.[9] In contrast, nontraditional jobs for women, such as carpentry, drafting, electrical work, firefighting, or driving a taxi or bus, pay a sustainable wage. Such occupational segregation is a primary cause of the wage gap between men and women. Indeed, poverty rates for single mothers would fall by half if they received wages equal to those received by men with similar qualifications.[10] Nontraditional jobs also are more likely to provide opportunity for advancement and benefits such as health insurance and sick leave. TANF recipients should be given these opportunities to support their families and achieve independence.
Access to education and training, however, is both effective and essential for TANF recipients to move out of low-wage, gender-segregated jobs into this higher-wage employment with career advancement potential.[11] Yet PRWORA limited the education and training that could be counted toward federal work participation requirements and set quotas on the percentage of recipients who could engage in certain education and training programs. As a result, the percentage of TANF recipients engaged in education or training has fallen dramatically since PRWORA.[12] Taking the wrong lesson from welfare reform, H.R. 240 further restricts states' flexibility to implement education and training programs for recipients, while simultaneously increasing the hours recipients are required to work, thus increasing the likelihood that recipients will be pushed into dead-end, low-wage, ""women's jobs."" This is the wrong choice for women and their families. Reauthorizing legislation should instead eliminate arbitrary restrictions on the length of time that TANF participants may participate in education and training and expand the types of educational programs in which recipients may permissibly engage. It should also stop the clock for recipients in education and training programs, so that choices regarding education and training are not artificially restricted by the five-year lifetime limit. Finally, reauthorization should ensure that all programs that provide funding for education and training, including TANF, encourage women's access to training for non-traditional jobs and include safeguards eliminating gender discrimination.
TANF REAUTHORIZATION MUST PROTECT THE RELIGIOUS FREEDOM OF RECIPIENTS
The "charitable choice" language adopted in PRWORA allows federal funds to flow directly to religious organizations, thus permitting government-sponsored religion in violation 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. Unless the statute is amended through reauthorization, this provision may allow sectarian religious organizations, including houses of worship, to contract with a state to administer a welfare program (by determining eligibility, giving out monthly checks, providing counseling, etc.) in an environment replete with religious symbols and activity. In such a setting, recipients undoubtedly will be threatened with religious discrimination and can reasonably interpret the relationship between the state TANF agency and the religious organization as government endorsement of a particular religion.
TANF recipients do not concede their First Amendment rights simply because they are in need of assistance. Yet religious organizations administering TANF programs will potentially discourage recipients from exercising their own religious beliefs, because, from a religious institution's perspective, 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. Recipients' rights to exercise their own religions, however, are protected by the Free Exercise Clause of the First Amendment.
The ""charitable choice"" provision also threatens to undermine the fundamental civil rights principle-- now more than 60 years old--that federal dollars should not fund employment discrimination. TANF provides that a religious organization's receipt of TANF funds does not restrict it from preferring members of its own religion in employment. Allowing federal funds to go to organizations that discriminate based on religion would be a sharp break with a long civil rights history. The ""real life"" impact this could have on individuals cannot be overstated. Applicants for jobs with federally funded religious TANF administrators may have to answer such questions as: What is your religion? Are you married or divorced? Was your marriage annulled? Is your spouse the same race as you? What does your church teach about sexual orientation? Such questions have no place in the federally funded workplace. Reauthorization must make clear that religious providers cannot engage in religious employment discrimination with TANF funds or include sectarian worship, instruction, or proselytization in a program funded by TANF.
TANF REAUTHORIZATION MUST NOT ENDANGER THE LIVES OF YOUNG PEOPLE BY REQUIRING EDUCATION PROGRAMS TO FOCUS EXCLUSIVELY ON ABSTINENCE
While discussion of abstinence is an important component of any educational program about human sexuality, programs such as those authorized under PRWORA, which focus exclusively on abstinence, endanger young people's health by censoring other valuable information that can help young people make responsible and safe decisions about sexual activity and reproduction. Moreover, these programs create a hostile environment for lesbian and gay youth, and dangerously entangle the government with religion, as a successful court challenge by the ACLU in Louisiana shows.
Under PRWORA, federally funded programs must offer curricula that have as their ""exclusive purpose"" teaching the benefits of abstinence. Programs may not provide adolescents with any information that is inconsistent with this message in the same setting as the abstinence program. Consequently, programs funded under PRWORA may not advocate contraceptive use or teach contraceptive methods except to emphasize their failure rates. This constitutes a gag order that censors the transmission of vitally needed information. These programs thus infringe on constitutional rights of free expression by censoring the transmission of vitally needed information about human sexuality and reproduction, either omitting any mention of topics such as contraception, abortion, homosexuality, and AIDS or presenting these subjects in a nonscientific, inaccurate fashion.
A growing body of evidence shows that most abstinence-only programs do not help teens delay having sex. As an independent, federally-funded evaluation of the abstinence-only education programs authorized under PWORA concluded, there is ""no definitive research [linking] the abstinence education legislation with"" the downward trend in ""the percentage of teens reporting that they have had sex.""[13] More troubling, some programs show evidence of increasing risk-taking behaviors among sexually active teens.[14] On the other hand, evidence shows that comprehensive programs that provide information about abstinence and effective use of contraception can help delay the start of sexual activity and increase condom use among sexually active teens.[15]
Abstinence-only programs also entangle the government with religion. Many abstinence‑only curricula contain religious prescriptions for proper behavior and values, in violation of First Amendment guarantees. A popular abstinence-only curriculum called ""Sex Respect,"" for example, was originally designed for parochial school use and retains strong religious undertones, citing religious publications as its reference sources. This is an inappropriate and unnecessary entanglement of government with religion. In 2002, the ACLU challenged the use of taxpayer dollars to support religious activities in the Louisiana Governor's Program (GPA) on Abstinence, a program funded under PRWORA. A federal district court found that GPA funds were being used to convey religious messages and advance religion, in violation of the Constitution's requirement of separation of church and state.
Reauthorizing legislation should eliminate or significantly reduce funding for abstinence-only-unless-married education and should instead appropriate funds for comprehensive sexuality education that would both teach abstinence and provide young people with the tools necessary to make responsible choices about sexual activity and reproduction.
TANF REAUTHORIZATION MUST PROTECT THE DUE PROCESS RIGHTS OF PROGRAM PARTICIPANTS
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 PRWORA was enacted, too often the broad discretion granted the states and the emphasis on caseload reduction above all else have eclipsed the commitment to fairness. The result has been arbitrary and inconsistent treatment of applicants and recipients; widespread misinformation about program requirements; and an absence of meaningful 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 and can push families out of the social safety net and into dire need. The next wave of welfare reform must hold states accountable for providing procedural fairness to applicants and recipients.
Provide Complete and Accurate Information to Recipients
PRWORA communicated a clear message to states: reduce your welfare rolls. Heeding this message, many states adopted TANF programs that emphasized ""diverting"" potential applicants by dissuading them from filing applications. Reports from advocates and court cases demonstrate that in some states, one result of this emphasis on diversion was a widespread failure to provide individuals seeking assistance with accurate, complete information about the assistance available and the requirements for obtaining it.[16] Some programs mislead individuals regarding the effects of the federal time limit on their benefits, fail to provide individuals with information about child care assistance, and fail to inform recipients that they cannot be sanctioned for a failure to comply with work requirements based an inability to find appropriate child care.[17] In one woman's account, ""One social worker told a friend of mine, 'It's not our responsibility to tell you [about these programs]. If you ask me about a program, I have to tell you. But if you don't ask me [then I won't tell you.]""[18] A failure to provide information means that families often do not gain access to the support they need to move toward independence.
Reauthorization must make explicit that TANF applicants and recipients have a right to receive accurate information about available benefits and eligibility requirements from the moment they seek assistance. States should be required to set out their methods of providing comprehensive and accurate information in their state plans and held accountable for failures to abide by these plans.
In addition, reauthorization should encourage states to provide complete and accurate information by making clear that poverty reduction, rather than caseload reduction, is the goal of TANF. One method of doing this is by measuring states' performance by and allotting bonuses based on success in reducing poverty. If states are held accountable for their success in moving applicants and recipients out of poverty, rather than just off the rolls, they will have new incentives to provide applicants and recipients with good information.
End Arbitrary and Inconsistent Program Practices
PRWORA sought to maximize state flexibility and experimentation by providing welfare monies through block grants with comparatively few restraints on the design of state programs for distributing these funds to needy families. This new flexibility radically increased states' discretion in administering TANF programs. In most instances, TANF also meant that caseworkers and individual administrators exercised far more discretion. Such a broad grant of discretion increases the potential for arbitrary, inconsistent, and discriminatory treatment of TANF applicants and recipients. And indeed, advocates and researchers report numerous examples of such problems under TANF. For example, advocates in Wisconsin report that the degree of supportive services offered to recipients and the leniency shown when rules are violated varies significantly from region to region and caseworker to caseworker.[19] When the decision whether to provide particular information or access to particular programs lies entirely within a caseworker's discretion, the potential for differential treatment for recipients and applicants of different races or ethnicities (discussed above) is also magnified.
Arbitrary and inconsistent treatment results in real harm to poor families, causing applicants to be denied benefits or recipients to lose benefits without cause. Bureaucratic whim should not cause families to go hungry or lose their housing. Reauthorization must balance the flexibility created by TANF with basic requirements that states administer their programs according to consistent, written rules regarding eligibility, sanctioning, provision of supportive services, and screening for barriers to employment that all individual administrators or caseworkers are obligated to follow. States that fail to follow their own rules (or to ensure that private, county, or city administrators follow state rules) should be subject to penalty.
Provide Fair Notice and Hearings
Fundamental fairness requires that recipients be given notice of the rules governing their behavior before they can be held liable for violating them. Fundamental fairness also demands that TANF recipients whose benefits are being reduced or cut off be given written notice of the reasons for this action prior to the reduction or termination, as well as a meaningful opportunity to contest the adverse action. Such procedural safeguards aid in accurate decision-making, as they help ensure that states will not base sanctions or other benefit reductions on erroneous information. They also help protect needy families from losing benefits and being thrust into dire financial circumstances as the result of errors, misunderstandings, or misinterpretations of program rules.
TANF reauthorization should require that as a condition of receipt of funds states institute essential procedural safeguards, including provision of clear and adequate notice (with appropriate modifications for low limited English proficiency recipients or disabled recipients) of an adverse action and provision of an opportunity to challenge such actions through a fair hearing prior to the discontinuation of benefits.
End Full Family Sanctions
Under PRWORA, 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. Reauthorizing legislation must reject H.R. 240's proposal to make full family sanctions mandatory and instead forbid states from instituting full family sanctions.
TANF REAUTHORIZATION MUST NOT ALLOW WAIVER OF CRUCIAL PROTECTIONS UNDER FEDERAL LAW
Various reauthorization proposals include a demonstration project provision, referred to as a ""superwaiver,"" that would grant broad discretion to federal cabinet secretaries to allow states to waive a host of statutory and regulatory requirements relating to programs serving low-income individuals. 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.
While the language of such superwaiver provisions is vague, we believe the superwaiver poses serious dangers to a broad cross-section of federal programs and the people they serve. It 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 superwaiver could 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.
In conclusion, while welfare caseloads have fallen precipitously since passage of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, poverty rates have steadily risen in recent years. The most current Census data show the largest jump in child poverty in a decade and women's poverty increasing at a faster rate than men's. In addition, a growing proportion of poor people are living in extreme poverty, with incomes of less than half of poverty level-more than at any time since 1975.[20] In recent years, employment rates for single mothers, the group primarily served by TANF, have also fallen, with black single mothers faring the worst.[21] TANF reauthorization must focus on changing these trends by lifting women and children out of poverty, rather than simply shuttling them off the welfare rolls. Making the changes outlined above will help ensure that states address themselves to the problem of poverty and do so in a way that respects the fundamental rights of those they serve.
Thank you for the opportunity to provide this written statement for the hearing record on welfare reform.
Footnotes
[1] 42 U.S.C. § 601(a).
[2] See Randy Capps, Urban Institute, Hardship Among Children of Immigrants: Findings from the 1999 Natio