Senate Committee on Finance
United States Senate
Washington, DC 20515
Re: The Personal Responsibility and Individual Development for
Everyone Act of 2003 (PRIDE)
Dear Senator:
The Senate is currently considering the Personal Responsibility and Individual Development for Everyone Act of 2003 (PRIDE), the reauthorizing legislation for the Temporary Assistance for Needy Families (TANF) programs. Any reauthorizing legislation passed by Congress must implement adequate safeguards to guarantee basic constitutional principles of equal protection, freedom of speech, and due process in the administration of TANF programs. PRIDE fails 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 that are 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 limiting education, training, counseling, and treatment.
While the American Civil Liberties Union (ACLU) does not support the underlying bill, we do support the inclusion of several amendments that will help ameliorate some of the concerns we have identified. To this end, we urge you to support the following amendments: the Fair Treatment and Due Process Protection amendment (SA 2949), the Immigrant Children's Health Improvement amendment, and the Abstinence Education Funding amendment. On the other hand, we urge you to oppose the Santorum amendment, which would allow federally funded service providers to discriminate in their employment practices.
The following highlights some of the most significant problems in the pending legislation.
I. PRIDE Establishes Demonstration Projects That Could Allow States to Waive Important Federal Protections.
The Senate proposal contains a demonstration project provision, referred to as a ""superwaiver,"" that would grant broad discretion to federal 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.
While the language contained in PRIDE is vague, 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 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.
II. PRIDE 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 PRIDE adopts poverty reduction as a primary purpose of TANF, it maintains these discriminatory exclusions, which further entrench people in poverty.
In an effort to provide more equity in the administration of TANF programs, Senator Graham is expected to introduce the Immigrant Children's Health Improvement amendment that would treat lawfully present immigrant women and children the same as citizens, by providing them health coverage under Medicaid and SCHIP regardless of when they came to the United States.
III. PRIDE 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. PRIDE completely ignores the procedural due process failings of the current TANF program.
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.
SA 2949, the Fair Treatment and Due Process amendment is an important step in addressing many of the due process issues outlined above. The amendment would require states to provide notice to recipients before a sanction is imposed. In addition, the notice must include the reason for the sanction, the amount of the sanction, the length of time of the proposed sanction, and the steps required for the recipient to come into compliance. Most importantly, the amendment provides recipients with an opportunity to appeal a states' decision to impose a sanction against them.
IV. PRIDE Endangers the Lives of Young People by Funding Programs that Focus ""Exclusively"" on Abstinence.
While the ACLU believes that the 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 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.[1]
Senator Baucus is expected to introduce SA 2952. This amendment would mitigate the serious harms of the current abstinence-only program by allowing states the flexibility to fund abstinence-based programs that also educate teens about methods to reduce unintended pregnancy and prevent other health risks. We urge you to support this amendment.
VII. Data Collection Requirements Contained in PRIDE 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 that must be submitted for receipt of TANF funds. Further, states should be required to collect data by race and ethnicity and to collect data on how benefits are disseminated and to whom. The states should also be required aggregate information to determine the outcomes of welfare recipients and to detect any disparities. Senator Feingold's amendment, SA 2949 requires states to collect data to address these important issues. We urge you to support this language.
VIII. PRIDE Should Not Be Expanded to Further Weaken the Separation of Church and State Principles
Senator Santorum is expected to introduce an amendment to insert government funded religious discrimination in the Social Services Block Grant (SSBG) program. We strongly urge you to oppose this amendment. Since TANF was last reauthorized, and particularly over the past three years, the discrimination problems included in the faith based initiative have become much more clear. Senator Santorum's amendment squarely raises the divisive fight over government-funded discrimination and the preservation of our nation's longstanding commitment to civil rights protections. The Santorum amendment would undermine key civil rights protections by allowing federal dollars to fund discrimination by the very few religious organizations that refuse to follow the same rules that all other religious organizations participating in federal programs follow. The Amendment provides explicitly that it would not preempt state laws affecting the participation of religious organizations in government programs, but it is silent on whether the discriminatory amendment would preempt local civil rights laws. Local civil rights laws should not be placed at risk. The potential harm to the enforcement of local civil rights laws--passed by hundreds of elected county boards and city councils--is severe. Supporters of the Santorum Amendment have adamantly refused to explicitly protect local civil rights laws against preemption. We urge to oppose this amendment
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. While we do not support PRIDE, we urge you to support the Feingold, Graham, and Baucus amendments to improve the underlying legislation. If you have questions, please contact LaShawn Warren at (202) 675-2317.
Sincerely,
Laura W. Murphy, Director
Washington National Office
LaShawn Y. Warren, Legislative Counsel
Washington National Office
[1] 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).
[2] Lower-Basch, Elizabeth, Leavers and Diversion Studies: Preliminary Analysis of Racial Differences in Caseload Trends and Leaver Outcomes, Office of Assistant Secretary for Planning and Evaluation, U.S. Department of Health and Human Services (2000).
[3] Equal Rights Advocates, The Broken Promise: Welfare Reform Two Years Later (San Francisco, CA: 2000); Urban Justice Center, Human Rights Project, Assessing the Intersection of Race and Welfare Reform for New York City Households (New York City Welfare Reform and Human Rights Documentation Project, 2001); Rebecca Gordon, Cruel and Unusual: How Welfare ""Reform"" Punishes Poor People (Applied Research Center, 2001).