Letter to HHS Secretary Tommy Thompson Regarding TANF Program

November 30, 2001

Tommy G. Thompson
Secretary of U.S. Department of Health & Human Services
TANF Reauthorization
Office of Family Assistance, 5th Floor East
Aerospace Building
370 L'Enfant Promenade, SW
Washington, DC 20447

 

Re: Comments on TANF Program 

Dear Secretary Thompson: 

The ACLU is a nationwide, non-partisan organization with nearly 300,000 members dedicated to protecting the individual liberties and freedoms 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 low-income women and women of color. As the vast majority of recipients of the Temporary Assistance for Needy Families (TANF) Program are women and their children, we are particularly concerned that the program operates fairly and does not infringe upon individuals' constitutional rights. Through its Immigrants Rights Project, ACLU has long focused on preserving the rights of immigrants - a group treated with particularly harshly in the TANF Program. As advocates for the rights of immigrants, poor women, and members of ethnic and racial minority groups, we bring a unique legal and policy perspective to the discussion of welfare reauthorization and we appreciate the opportunity to comment on the improvements we believe are critical to make TANF a more effective program. 

As detailed below, we believe TANF is legally flawed because it fails to 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. While it is true that the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 has significantly decreased the number of people on the welfare rolls, it has failed miserably to move people out of poverty. In fact, the Center on Budget and Policy Priorities found that while single mothers in the lowest earning quintile experienced significant increases in earnings from 1993-95, from 1995-97 they experienced a 10.7% decrease in earnings and a 6.7% decrease in disposable income. Only one year after the passage of PRWORA, a National Survey of America's Families indicated that 34% of current and former welfare recipients said they were having difficulty providing their families with enough food.1 Further, a General Accounting Office report on former TANF recipients in seven states found that in five states, average earnings remained below the poverty level. 

A number of former welfare recipients, currently working, have found themselves to be in worse condition financially than they were when they were receiving cash assistance from the Aid to Families with Dependent Children (AFDC) program. Given this reality, the focus of TANF should be to move towards ensuring that former welfare recipients transition to higher-wage jobs, which provide adequate means for people to support themselves and their families. To this end, reauthorizing legislation should promote education and training; safeguard access to Medicaid, Food Stamps, child care, and other work supports; and mandate access to services to address employment barriers such as mental illness, physical disability, substance abuse, and domestic and sexual violence. 

We are particularly troubled by the fate of former and present welfare recipients caught in the mire of the economic downturn due in part to the events of September 11th. They are now facing a welfare system in which time limits are imminent and will occur in a majority of states at precisely the moment when labor markets are the weakest and when families are experiencing the most difficulty obtaining the bare necessities to live. Between now and next July, many families will have exhausted their five-year time limit on welfare in at least 26 states. It is imperative to increase TANF funding, to re-evaluate the hardship exemption's limitation to 20 percent of recipients in a state, to consider stopping the clock for recipients in compliance with program requirements, and to implement due process protections to provide a safety net for our most vulnerable populations. 

The following discussion outlines the failures of the current federal welfare program to live up to constitutional principles. In bringing these issues forward, we hope that these comments will provide guidance in restructuring some of the most problematic provisions of TANF through the reauthorizing legislation. 

I. TANF Should Not Discriminate. 

The general purpose of TANF is to provide assistance to needy families and children and to end dependence of needy parents on government benefits by promoting job preparation and work. 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. 

Other equal protection problems involve families who are disadvantaged because states have failed to disseminate information and services on a nondiscriminatory basis to all benefit recipients. States have often failed to accommodate the needs of recipients with limited English proficiency or with disabilities. While women are given information about traditional 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 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. In addition, the following legislative changes should be made: 

A. Excluded Groups 

1. Immigrants 

Perhaps the most egregious of PRWORA's civil liberties violations occurred in the provisions that created new immigrant eligibility standards. PRWORA barred most legal immigrants from receiving Food Stamps and Supplemental Security Income (SSI) until they became citizens or 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 barring immigrants already in the United States at the time of PRWORA's passage from receiving these services, as well as barring new immigrants from receiving these services after the five-year waiting period. Thus, legal immigrants were deprived of the same services that their tax dollars support. "Unqualified" immigrants, including not only undocumented aliens but also other groups permitted to remain in the United States without permanent residence, were barred from receiving any federal public benefits at all. While since 1996, SSI has been restored to immigrants who were in the United States at the time of PRWORA's passage and Food Stamps have been restored to noncitizen children who were in the United States at the time of PRWORA's passage, as well as to some elderly and disabled immigrants, most immigrants continue to be denied the benefits extended to other similarly needy individuals. This grossly discriminatory policy should be ended when TANF is reauthorized, and reauthorizing legislation should remove all barriers that prevent legal immigrants from receiving public assistance. 

PRWORA also included new requirements on family members who sponsor immigrants. It required that the income and resources of the sponsor be "deemed" available to the immigrant, even if this income and resources were not in fact available. As a result, many poor immigrants are regarded as ineligible for services despite their poverty and lack of access to deemed income. Deeming applies until the immigrant becomes a citizen or works for approximately 10 years. The immigrant sponsor deeming rules introduced in PRWORA should be abandoned, and the sponsor deeming rules in place before PRWORA should be reinstated. 

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 born in the United States and are therefore U.S. citizens eligible for welfare services.2 Because of confusion or fear, many non-citizen parents do not seek the government assistance for which their citizen children are eligible, and thus these children do not receive the vital services they need for survival.3 The immigrant restrictions have stripped much needed assistance from poor legal immigrants, undoubtedly having an enormous impact on children. Reauthorizing legislation should permit legal immigrants to receive benefits, 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. 

2. Drug Offenders 

42 U.S.C. § 862(a) 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 drug treatment program and tries to turn his or her life around, he or she is still ineligible for federal aid. The original intent of PRWORA was to promote personal responsibility, yet permanent denial of federal assistance erects new barriers that may prevent people from improving their situation to become productive, responsible citizens. 

Furthermore, the law should not deny assistance to those who may be addicted to drugs. In many instances, drug possession is a result of drug addiction. Drug addiction is a sickness that cannot be treated by incarceration or the denial of basic sustenance. If the desire is indeed to promote personal responsibility welfare laws must include provisions to treat the addiction through federal assistance, which will be the first step to self-sufficiency, instead of implementing restrictions that simply do not address the real problem. 

3. Children 

For the first time, PRWORA authorized states to refuse to provide additional benefits for a child who was conceived and born while the parent was receiving assistance. TANF, when reauthorized, should no longer permit states to adopt the child exclusion, also known as a family cap, as these exclusions impermissibly discriminate against children based on the circumstances of their birth. A child born to a family that was not receiving benefits at the time the child was conceived is eligible for assistance. In contrast, an equally needy child conceived and born into a family receiving benefits is denied assistance. 

States that have adopted child exclusions unfairly punish the innocent child for the conduct of his or her parent. The child is punished because his or her parents are poor and have been unable to become self-sufficient for ten months. This policy is akin to those adopted earlier in this country, by which children were denied benefits because their parents were not married or because their parents were not legal residents. These policies were held unconstitutional. See, e.g., Plyler v. Doe, 457 U.S. 202 (1982) ("Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice."); see also Weber v. Aetna Casualty & Surety, 406 U.S. 164 (1972). The child exclusion is no less cruel.4 

The child exclusion should not be perpetuated when TANF is reauthorized, given its tension with fundamental principles of equal protection and given the harm it inflicts on children. A law designed to aid needy families should not turn its back on poor children, leaving them to suffer and to swell the ranks of children in poverty in this country.5 

B. Disadvantaged Groups 

1. Individuals with Special Needs 

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. Reauthorization 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. 

In particular, states must meet the needs of victims of domestic violence. Several studies have estimated that more than half of all women receiving welfare have been victims of domestic violence as adults. Many were also victims of sexual or physical abuse as children.6 In a study conducted to examine the relationship between abuse and employment, researchers interviewed fifty working battered women who sought counseling assistance at a victims' services agency in a large metropolitan area. They found that 56 percent of the respondents reported having lost at least one job and 54 percent reported missing an average of three days of work per month because of domestic violence.7 In a comparable study, researchers surveyed battered women in shelters, concluding that 58 percent of the participants were working at the time they were abused and that their work performance was seriously compromised by absenteeism and tardiness related to the physical abuse.8 It is clear that special services and counseling for domestic violence victims are imperative if recipients are to successfully find and maintain stable employment. While some states have programs available to assist recipients, others do not. Studies indicate that even when transitional services are available most recipients are unaware that they are entitled to these services.9 In certain instances, crucial information about available services is simply kept from recipients. Meanwhile, available resources remain largely unused. 

While recipients with special needs may be unable 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 on permitted hardship exemptions 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. 

Given that the very survival of many families may be dependent on gaining access to benefits and services, states should be required to make these benefits and services available to everyone on an equal basis, with accommodations for special needs. Providing this vital assistance must not be left to the discretion of the state caseworkers. States would be better able to accommodate TANF recipients with special needs if the 20 percent cap on the hardship exemption from the federal time limit were abolished. 

2. Women Seeking Higher-Wage Employment 

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 often steer TANF recipients into jobs traditionally held by women, which typically pay the lowest wages.10 Non-traditional jobs, such as carpentry, drafting, electrical work, firefighting, or driving a taxi or bus, pay a sustainable wage and have more career potential. Women should be given equal access to and guided toward these non-traditional positions that will provide them with the means to support their families and end the cycle of government dependency. Access to education and training is essential to move recipients out of low-wage, gender-segregated jobs into sustainable employment with career advancement potential. 

TANF currently limits the type and length of education and training that can be counted toward federal work participation requirements and sets quotas on the percentage of recipients who can 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.11 Reauthorizing legislation should change the current definition of "work activity," eliminating arbitrary restrictions on the length of time that TANF participants may participate in education and training and expanding 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 time limit. Reauthorization should also 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 in education and training. 

3. Racial Minorities 

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.12 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.13 

A 1999 study conducted by Virginia Polytechnic Institute and State University focusing on the interactions between welfare caseworkers and recipients characterized the extent of disparities in treatment between races. In this study, 39 recipients (22 black and 17 white) were interviewed about their interactions with welfare department caseworkers: how frequently caseworkers notified them about job openings, the extent to which caseworkers emphasized further education, caseworker assistance in locating child care, and caseworker assistance with transportation. The responses varied sharply along racial lines. Fifty-nine percent of whites, but only 36 percent of blacks, indicated that their caseworkers were often or sometimes helpful in providing information about potential jobs. Forty-one percent of whites indicated that caseworkers encouraged them to go to school, particularly if they had not received a high school diploma. None of the blacks indicated that a caseworker had encouraged her to go to school. For instance, one white respondent stated: "They encouraged me to get my GED. I've been in school since October, working on the GED. I hope to graduate in the spring. My worker kept telling me 'You're smarter than you think.' She really convinced me that I could do it." A black respondent stated: "They talk to you any kind of way. They say: 'Go get a job.' I told them that I only had two parts left on my GED and wanted to finish, they said: That's not what this program is about."14 

This kind of disparate treatment cannot be tolerated, particularly given that such treatment affects not only the future of 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. Federal audits or "testers" should also be used to assess states' compliance with civil rights and labor laws. 

II. TANF Should Not Weaken the Separation of Church and State or Restrict Freedom of Speech. 

A. Charitable Choice 

The delicate balance between church and state devised by the Founders and embodied in the First Amendment is greatly compromised by laws, like PRWORA, that allow government-funded religion. PRWORA explicitly permits the creation of 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. 

The "charitable choice" language in PRWORA allows 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. It is our understanding that the Center for Faith-Based and Community Initiatives at the Department of HHS has reported to the White House that it will, in fact, change the rules and regulations to conform to its new interpretation of what is permissible and/or required under the charitable choice provisions in TANF. 

We are deeply concerned that, unless the statute is amended, the charitable choice section will be interpreted to allow pervasively sectarian religious organizations, including houses of worship, to contract with a state to administer a government-funded 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 may undoubtedly be subjected to religious discrimination and could reasonably interpret this method of disbursement as government endorsement of religion. 

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. Finally, taxpayers should not be forced to fund religions with which they disagree. 

The charitable choice provision in TANF also threatens to undermine the fundamental civil rights principle--which is now more than 60 years old--that federal dollars generally should not go to persons who discriminate against others in employment. Although it was never implemented by the last Administration, TANF provides that receipt of TANF funds by a religious organization does not affect its right to discriminate under Title VII of the Civil Rights Act of 1964 by preferring members of its own religion. Implementation of the charitable choice provision to allow federal funds to go to organizations that discriminate based on religion would be a sharp break with a long civil rights history. 

Allowing federal funds to go to persons who discriminate based on religion undermines core civil rights protections that date back to President Franklin Delano Roosevelt. 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. For sixty years, the basic principle has been that the federal government should not finance religious discrimination against others. 

Moreover, because at least some courts have allowed religious organizations to use their exemption from Title VII's prohibition against religious discrimination as a basis for requiring adherence to the religion's teachings and tenets, the potential scope of permissible discrimination remains very broad. Therefore, removing the "religious practices" language alone may have little effect on the discriminatory impact of this provision. The "real life" impact this could have on individuals cannot be overstated. Applicants for jobs with federally-funded religious organizations may have to answer such interview questions as: What is your religion? Are you married or divorced? Was your marriage annulled? Is your spouse the same race as you? Are you pregnant? HIV positive? What does your church teach about sexual orientation? Are you willing to work only with members of your own sex? A wrong answer could mean no job. 

Such questions have no place in the federally-funded workplace. However, if this issue is not addressed in the reauthorization legislation such questions could be commonplace for religious organizations funded under TANF. New protections should be added so 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. There must be a clear line maintained between church and state. Benefits cannot be used as a pretext to endorse a particular religion. 

B. Abstinence-Only Education 

A reauthorized TANF should not include funding for abstinence-only-unless-married programs. When passed in 1996, PRWORA contained a $50 million annual appropriation for five years for abstinence-only-unless-married programs, to be administered through the federal Maternal Child Health Bureau and its state analogues. Because the provision required states to match every four federal dollars they received with three state-raised dollars, the potential national outlay under this program amounted to $88 million a year. Moreover, in the years since the law was passed, significant additional funding for abstinence-only education has been earmarked through the Adolescent Family Life Act as well as the SPRANS (Special Projects of Regional and National Significance) Program. In fact, since 1996, Congress has committed over half a billion dollars in federal and state funding for abstinence-only-unless-married education. 

Congress has done this despite the lack of evidence that abstinence-only programs work and despite the serious civil liberties concerns that such programs raise. While discussion of absti

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