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Document 2 of 11.


Copyright (c) 1994 Connecticut Law Review
Connecticut Law Review

Spring, 1994

26 Conn. L. Rev. 817

LENGTH: 13251 words

THE DAY, BERRY & HOWARD VISITING SCHOLAR: THE WELFARE OF SINGLE MOTHERS AND THEIR CHILDREN

Martha Minow*


 
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n* Professor, Harvard Law School. Thanks to Michelle Anglande, Erika George, Ken Halpern, Elizabeth Spelman, Richard Weissbourd, Lucie White, and Joe Singer. This is the written version of a lecture given as part of the annual Day, Berry & Howard Visiting Scholar Series at the University of Connecticut School of Law on October 14, 1993.
 
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SUMMARY:
  ... After all my years of studying American history--I confess I took more courses in college--I remember being startled to learn in one sentence why so much of it seemed confusing to me: a graduate student explained to me that historians of this country are divided between those who find a society of consensus and those who view it as one of conflict. ... In this Essay, I would like to explore this "new consensus" on welfare reform, including the elaborations since 1988 at both the state and federal levels. ... It is telling that every mother of young children I have talked with about the work requirement for mothers of one-year-old children on welfare asks whether mothers are or have been involved in the policy discussion. ... As a result, a mental alarm went off when I read this sentence in a recent collection of essays on welfare reform: "To be sure, everyone agrees on the fundamental objectives of welfare reform--to reduce poverty and dependence and to encourage economic self-sufficiency--but the consensus wavers on the concrete ways to bring them about." ... One recent analysis published in the New York Times indicates how an AFDC recipient would obtain $ 572 per month if she works and still retains her foodstamp benefits, while she would be eligible for $ 741 if she remains on welfare. ... This same critic concludes that "the lesson implied by the Moynihan Report . . . is that the welfare-dependent single mother is finally the synecdoche, the shortest possible shorthand, for the pathology of poor, urban, Black culture." ...  

TEXT:
     [*817]  Did you have classes on American history periodically scattered throughout your education? I did, starting in fifth grade--reappearing in seventh grade and eleventh grade. I never quite understood why we had to keep studying it. One possibility, I realized, was that we did not really learn it the first time, so we had to keep trying. As I grew older, I wondered whether we had to revisit American history because the history kept changing, so we had to learn it anew. My father confirmed this suspicion recently. He had the chance to sit in on a college course in American history and found it filled with new versions of events he remembered. He told me how much more interesting he found it than the courses he remembered from fifty years earlier, and told me that maybe college should be reserved for retired people. All I could think about was the fact that if you wait until your sixties to learn American history, there are fifty more years to learn about!

After all my years of studying American history--I confess I took more courses in college--I remember being startled to learn in one sentence why so much of it seemed confusing to me: a graduate
 [*818]  student explained to me that historians of this country are divided between those who find a society of consensus and those who view it as one of conflict. I wonder whether the conflict theorists must have the better position, because at least they can explain the fight among the historians. It's like the person who says there are two kinds of people in the world: the people who think there are two kinds of people, and the people who don't. At least the first group can actually explain the dispute! Anyway, ever since hearing about the consensus versus conflict debate over American history, when I see the word "consensus" applied to any aspect of American life, I find myself wondering about the conflict lurking behind it which was somehow neglected by its authors.

Probably for this reason, I have held onto a book that came across my desk a few years ago, a book entitled, The New Consensus on Family and Welfare. n1 Produced by a group of scholars who claim to be philosophically diverse, the book offers statistical information on income, education, work force, family patterns, and welfare, and concludes that a new kind of poverty--behavioral dependency--is caused not only by low income, but also by what they call a "growing inability to cope." n2 The book recommends that society--and welfare policy--should impose on behaviorally dependent people the same obligations faced by other citizens to become self-sufficient through education, work, and responsible family behavior. Who could disagree with any of that? Hence, the consensus claim, I guess.
 
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n1 Michael Novak et al., The New Consensus on Family and Welfare: A Community of Self-Reliance (1987).

n2 Id. at back cover of book jacket.
 
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Indeed, shortly after the publication of that book, Congress adopted what was widely hailed as the first major reform of the welfare system in many years, the Family Support Act of 1988. n3 The Act requires states to offer job opportunities, skills programs, transitional childcare, and health benefits to mothers at risk of long-term dependency on welfare. In return, those mothers are expected to go to work. Rather than "entitlement," the key concept underlying the Act is "mutual obligation." n4 President Clinton's call to end welfare "as we know it" n5 thus seems a bit late in the game; the end has already been sketched by
 [*819]  Congress.
 
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n3 Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343 (1988) (codified at 42 U.S.C. sections 601-687 (1988)).

n4 Although it must be noted that, in actuality, the government's obligation is not enforceable if the program is underfunded.

n5 Bill Clinton & Albert Gore, Jr., Putting People First (1992).
 
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In this Essay, I would like to explore this "new consensus" on welfare reform, including the elaborations since 1988 at both the state and federal levels. Behind the new consensus, I suggest, remain deep conflicts about social vision, conflicts which especially affect single mothers. I will explore some of the reasons for challenging the alleged consensus and consider why the policies have taken the shape they have. I will argue that the welfare reforms of the past five years are not reforms but instead reiterations of longstanding lines of social cleavage. In light of this analysis, I would like to challenge us all to consider ways to truly end "welfare as we know it," and instead provide a responsible social policy. Along the way, I will urge us all to pay attention to the images of ourselves and others we use in debating law, politics and reforms.


I. Alleged Consensus and Persistent Conflicts


The basic elements of the 1988 Family Support Act reveal the aspects of the "consensus" that made it into federal law. A recent book described the consensus behind the Act as "a determination (1) that work should be thoroughly integrated with welfare provision and (2) that long-term welfare dependency was an evil demanding serious attention." n6
 
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n6 Theodore R. Marmor et al., America's Misunderstood Welfare State: Persistent Myths, Enduring Realities 231 (1990).
 
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Centrally, the Act demonstrates that society expects everyone to work. Thus, recipients must accept job training and/or a public job offered by the government, and/or participate in looking for private employment in return for the public stipend. n7 Mothers whose youngest children have reached the age of three are federally mandated to participate in job training, and the legislation allows the states to extend this requirement to mothers with children as young as one. n8 The Act also allows the states to require a never-married minor parent to live with her own parent or legal guardian as a condition of receiving public support. n9 Similarly, the Act permits states to condition payments on prior performance of work assignments or approved schooling. n10
 
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n7 See Joel F. Handler & Yeheskel Hasenfeld, The Moral Construction of Poverty: Welfare Reform in America 201-02 (1991).

n8 Id. at 208-17.

n9 42 U.S.C. section 602 (1988).

n10 Id.
 
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The Act creates a program called JOBS that couples a training and
 [*820]  work requirement with guaranteed childcare. n11 The JOBS program gives phased-in amounts of federal matching money for job training, childcare, and other state services designed to move recipients from welfare to work. n12 Unable to produce the entire state portion of the matching monies, the states have actually claimed only sixty percent of the funds set aside for the JOBS program. n13
 
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n11 Title II, 42 U.S.C. section 602 (1988). JOBS replaced the Work Incentive Program ("WIN"), Title IV, Parts A & C of Social Security Act of 1967, 42 U.S.C. section 602 (1967).

n12 See Marmor et al., supra note 6, at 122; Julie Kosterlitz, Reworking Welfare, 24 Nat'l J. 2189 (Sept. 26, 1992); see also American Public Welfare Association, JOBS: Job Opportunities and Basic Skills Program, 14 Youth Pol'y 43 (Dec. 1992).

n13 Kosterlitz, supra note 12, at 2189.
 
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The Family Support Act of 1988 confirmed and strengthened the broad scope of state discretion in Aid to Families with Dependent Children ("AFDC"). n14 State experiments n15 include not only work training programs, but also "learnfare," "family caps," and "bridefare." n16 Learnfare conditions eligibility for AFDC on the regular school attendance of minor children in the household. n17 Family caps eliminate or reduce additional AFDC benefits for the support of children conceived after a mother begins receiving AFDC. n18 Bridefare adds to the family cap notion small monetary incentives to recipient mothers to marry the father of her child. n19 Some states also have considered proposals to give recipients incentives to use Norplant for contraception. n20 These requirements sit on top of existing demands for participation in paternity and child support actions, and compliance with visits by social workers. n21
 
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n14 Family Support Act, Part A - Aid to Families with Dependent Children, 42 U.S.C. section 602 (1988).

n15 Some states require, and have obtained, federal waivers from usual programs and procedures. See, e.g., Mark Greenberg, On, Wisconsin?: The Case Against the "Work Not Welfare" Waiver 10 (Oct. 1993) (Center for Law and Social Policy) (comparing Wisconsin's request for a waiver with approved waivers for California, Iowa, New Jersey, and Vermont).

n16 See generally Lucy A. Williams, The Ideology of Division: Behavior Modification Welfare Reform Proposals, 102 Yale L.J. 719 (1992).

n17 Id. at 726.

n18 Id. at 736.

n19 Nick Chiles, Welfare War: Milwaukee's Job Program May Be Model, Newsday, Dec. 29, 1993, at 8.

n20 Tamar Lewin, A Plan to Pay Welfare Mothers for Birth Control, N.Y. Times, Feb. 9, 1991, at A9.

n21 See Robert Mnookin et al., In the Interest of Children: Advocacy, Law Reform, and Public Policy 434-47 (1985) (discussing Roe v. Norton, 422 U.S. 391 (1975) (approving requirement of maternal assistance in paternity actions for children on AFDC)).
 
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If the federal legislation marks a consensus in favor of moving
 [*821]  welfare recipients into the work force, the state experiments favor behavioral modification beyond the development of work skills and habits. In addition, the federal legislation calls for investments in training, childcare, and other services--while the states emphasize budget reduction in their reforms. n22 Indeed, during this period of reform, seven states have actually cut back expenditures on welfare, while others have consistently held benefits static resulting in a sizable reduction in their real purchasing power. n23 Finally, due to the recession and the massive increase in demand for welfare, the states have funded services called for by the Family Assistance Act in only a limited fashion. n24 A professor of public policy and social work recently commented, "The issues of reform and responsibility are being confused with budgetary retrenchment. Almost any responsible plan to reform will cost money. To be genuine, it has to have in place a set of support programs which make it feasible for recipients to exercise responsibility." n25
 
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n22 Julie Kosterlitz, Behavior Modification, 24 Nat'l J. 271 (Feb. 1, 1992) $ (hereinafter Behavior Modification$ ). The states also try to restrict services that the federal government seems to want guaranteed to recipients in job training. See, e.g., Miller v. Carlson, 768 F. Supp. 1331 (N.D. Cal. 1991) (issuing an injunction against the state's effort to limit child care benefits to recipients in JOBS but no other state-approved training activity).

n23 See Mark Greenberg, Testimony before the Domestic Task Force, Select Committee on Hunger, U.S. House of Representatives, (Apr. 9, 1992), reprinted in 14 Youth Pol'y 49 (Dec. 1992); see also Lucie E. White, No Exit: Rethinking "Welfare Dependency" from a Different Ground, 81 Geo. L.J. 1961, 1962 (1993).

n24 U.S. Gen. Accounting Office, Welfare Issues To Consider in Assessing Proposals for Reform (Feb. 1987) (Appendix 28), reported as, The History of the Welfare System, 14 Youth Pol'y 1, 6-7 (Dec. 1992).

n25 Behavior Modification, supra note 22, at 271 (quoting Sheldon Danziger, Professor of Social Work and Public Policy, University of Michigan).
 
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We can begin to discern here the cracks in the alleged consensus. The liberal position on welfare reform accepts tougher work requirements if paired with generous support for education, training, job placement, childcare, and related services. n26 In turn, some conservatives are willing to support greater spending but want those funds directed to behavioral modification. n27 Political compromise, not consensus, better characterizes the current federal and state initiatives.
 
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n26 Marmor, supra note 6, at 232; Handler & Hasenfeld, supra note 7, at 238.

n27 See Marmor, supra note 6, at 233; see also 14 Youth Pol'y 44, 44 (Dec. 1992) (reprinting Welfare Reform and Parental Responsibility Act of 1992 (Press Release and "Dear Colleague" Letter on H.R. 5501, Rep. Newt Gingrich, House Republican Whip, (June 25, 1992) (calling for linking of welfare benefits to preventive health care and school attendance)).
 
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Still, thus far it may seem as though the conflict concerns only matters of degree over questions such as: what mix of services and
 [*822]  training should be paired with work requirements, and what degree of behavioral modification is acceptable as a condition of receiving public benefits? In fact, the contemporary debate is dominated by such questions, but oddly missing in the public debate is the more basic question--why should single mothers responsible for young children be expected to work outside the home? While this question seems outside the bounds of contemporary debate, I wonder whether this reflects consensus or instead the failure of the debate-framers to hear diverging views. It is the custom of academics to cite taxi drivers for the common sense view they themselves may lack. Instead, I will cite mothers I know. It is telling that every mother of young children I have talked with about the work requirement for mothers of one-year-old children on welfare asks whether mothers are or have been involved in the policy discussion.

So I confess, I listen skeptically to the claim of consensus about the work requirements. I think we should be especially on our guard when someone characterizes the consensus with words like "obviously," or phrases like "to be sure." As a result, a mental alarm went off when I read this sentence in a recent collection of essays on welfare reform: "To be sure, everyone agrees on the fundamental objectives of welfare reform--to reduce poverty and dependence and to encourage economic self-sufficiency--but the consensus wavers on the concrete ways to bring them about." n28 Reducing poverty sounds good, but I am not entirely sure that dependence is always bad. n29 And who, exactly, is economically self-sufficient--given, for example, the role of bank loans in the financing of education, housing, and businesses? n30
 
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n28 Phoebe H. Cottingham, Introduction to Welfare Policy for the 1990s 1 (Phoebe H. Cottingham & David T. Ellwood eds., 1989).

n29 For a subtle analysis of the shifting historical meanings and connotations of dependency, see Nancy Fraser & Linda Gordon, A Genealogy of Dependency: Tracing a Keyword of the U.S. Welfare State, 19 Signs 309 (1994).

n30 For a careful study of the ways in which members of the middle class have benefitted specifically from the welfare state, see Robert E. Goodin & Julian LeGrand, Not Only the Poor: The Middle Classes and the Welfare State (1987).
 
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My mental alarm continued to ring as I focused on single women with young children. Here the assumed evils of dependence seem especially confusing. For are single mothers on welfare properly to be viewed as dependent people who should become economically selfreliant, or as people upon whom children depend, and people upon whom society depends to raise those children successfully? n31 Who ex  [*823]  actly is supposed to care for those children if their mothers enter the workforce? How will quality childcare be financed? Will there be jobs for impoverished mothers--and will the hours, transportation, and other requirements be compatible with good parenting? What are the back-up arrangements for days when the children are ill--will the daycare provider send them home, and will the mothers lose their jobs or fail their training programs if they stay with an ill child?
 
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n31 Cf. John Clarke et al., Ideologies of Welfare: From Dreams to Disillusion 6465, 73 (1987) (describing turn of the century feminists who sought to alter women's dependence on men by exploring dependence on the state and independence through the labor market).
 
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Some of these questions are part of the current policy discussion, but that discussion treats as unquestionable the basic assumption that these mothers of young children should be treated like any other ablebodied poor person and be moved as soon as possible away from dependence on public benefits into the labor market. That assumption does indeed appear and reappear in public opinion polls n32 and policy debates. This, in fact, is the real revolution in welfare policy. Mothers with young children now are not viewed as the "deserving poor" who should be subsidized by society. This is a dramatic shift in that while AFDC once excused mothers of young children from paid labor, n33 now the program expects them to work. n34 In 1967, the Work Incentives Program pushed for this position, n35 and a 1971 Act required mothers of school-aged children to register for work and training n36 --but these developments reflected not a social consensus, but instead the controverted victories of conservatives who blamed poverty on the poor. n37 Today, the expectation that mothers on welfare should seek and obtain paid work outside the home is articulated by ostensible liberals and it undergirds both federal and state policies. n38
 
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n32 In 1972, 49% of those surveyed believed mothers receiving welfare should be required to take any job offered; in 1991, 79% favored all mothers on welfare to do work for the check; in 1992, 80% favored it. Williams, supra note 16, at 746 n. 177.

n33 Indeed, Aid to Dependent Children, when established in 1935 under the Social Security Act, was supposed to enable widows and other single mothers "to care for their children without being compelled to seek or hold a job. A mother's principal role was seen as that of a caregiver and homemaker, not that of a breadwinner." Gary Burtless, The Effect of Reform on Employment, Earnings, and Income, in Welfare Reforms for the 1990s at 103, 105-06 (Phoebe H. Cottingham & David T. Ellwood eds., 1989).

n34 Handler & Hasenfeld, supra note 7, at 202.

n35 Title IV, Parts A & C of the Social Security Act of 1967, 42 U.S.C. section 602 (1967).

n36 Pub. L. No. 92-223, 1971 U.S.C.C.A.N. 2435-39.

n37 Laurence E. Lynn, Jr., Ending Welfare Reform as We Know It, 15 The American Prospect 83, 89 (Fall 1993).

n38 Id.
 
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But what kind of public agreement is there about this expectation?
 [*824]  Research in American history may help. Three possible historical stories can be offered to explain this change. The first is that after the Reagan revolution, Democrats grew anxious to govern and gave up the traditional liberal positions regarding the most vulnerable, and least politically powerful, constituents. n39 The consensus on work requirements for mothers on welfare reflects the point of convergence between conservatives and liberals, and the inadequate funding of training, daycare, and other services indicates the place where the liberals failed to win much in exchange. n40 One observer concludes from this history that at least in the recent American past, "conservatives make the rules of the game and liberals play it." n41 An alternative conclusion, to which I will return, is that political deals seem to injure society's most vulnerable and least politically powerful people.
 
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n39 Laurence Lynn explains that for decades, conservatives have appealed to economically insecure voters in the middle and working classes by reviving 19th century fears of low morality and antisocial behavior of poor people. Id. at 90.

n40 See id. (describing the alliance between liberals like Moynihan and Ellwood and conservatives like Mead and Besharov as "Faustian bargain":

In exchange for a promise to join the nominal welfare reform coalition and support some transitional "carrots" such as $ (earned income tax credit$ ) expansion, conservatives expect to set the budgetary and behavioral ground rules. They then pick and choose from among the elements of a balanced reform agenda those which resonate well with conservative voters and call the selection process "recognizing the political facts of life." Anxious to govern, liberals accept these "facts" as immutable, their role as creative intellectuals diminished while they accept assignment as technocrats and pore over census data.

Id.).

n41 Id. at 91.
 
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A second historical argument takes a broader slice of time and treats as anomalous the decade or so when poor mothers of young children actually were viewed as socially worthwhile enough to be exempted from work requirements. This argument points to the massive expansion of AFDC since the 1960s as the critical development that in turn set in motion the forces of political reaction. Before the 1960s, a relatively small program provided assistance to widows with children; the program originally excluded African-Americans and allowed states to regulate the moral and sexual conduct of its applicants. n42 The creators of the original program did not want white single mothers to enter the labor force because they valued the family wage system that made women and children dependent on a male breadwinner--and paid him
 [*825]  enough to sustain those dependents. n43 Until the 1960s, the vast majority of female-headed households in poverty remained ineligible for this federal program and depended on local relief or the underground economy. Commonly, families were broken up in order to survive. n44
 
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n42 The Social Security Act allowed states to deny such monies to women found with a man in the house, and the program excluded African-American single mothers. Social Security Act, Ch. 531, 49 Stat. 620 (42 U.S.C. section 301 et seq.) (1935). Williams, supra note 16, at 723-24.

n43 Fraser & Gordon, supra note 29, at 322.

n44 Joel F. Handler, The Assault on the Ablebodied: Review of Michael Katz, In the Shadow of the Poorhouse, 15 Reviews in Am. Hist. 394 (1987).
 
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Participation in the program grew, partly because of the dramatic demographic shifts bringing rural people to cities which stranded many women and children there without work or responsible fathers for the children. n45 Increasingly, not only widows, but divorced, separated, and never-married mothers applied for benefits for their children. n46 Prodded along by effective law reform initiatives of the civil rights movement and later the movements for women's rights and for welfare rights, the federal program changed in the 1960s and 1970s in response to this fact. n47 But there was a political price. As public assistance became available to African-American women, to Latinas, to single women who had never married, and even to women who may have had a "man-inthe-house," AFDC, according to one expert, also "became increasingly harsh and coercively work-oriented." n48
 
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n45 See Jacqueline Jones, Labor of Love, Labor of Sorrow: Black Women, Work, and the Family from Slavery to the Present (1985); Nicholas Lehman, The Promised Land: The Great Black Migration and How It Changed America (1991).

n46 See Burtless, supra note 33, at 106.

n47 In 1962, the program became Aid to Families with Dependent Children and thus provided some money for the single mother as well as her children; it included African-Americans; and it ended the man-in-the-house rule. See Mimi Abromovitz, Regulating the Lives of Women 313-42 (1988); Jacqueline Trescott, The Life & Labors of Virginia Cooper: Keeping a Strong Family Against All the Odds, Wash. Post, Dec. 28, 1988, at C1.

n48 Handler, supra note 44, at 399.
 
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As the program came to encompass those treated in the past as undeserving, it changed to require expected behavioral changes by participants. n49 At the same time, reduced effective benefit levels and other factors contributed to a decline in participation by female-headed families with children from sixty-three percent of all female-headed households with children in 1973, to under forty-five percent in 1986. n50
 [*826] 
 
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n49 Id.

n50 Robert D. Reischauer, The Welfare Reform Legislation: Directions for the Future, in Welfare Reforms for the 1990s, at 14 (Phoebe H. Cottingham & David T. Ellwood eds., 1989). A continuing debate about the composition of welfare-dependent families includes questions about what proportion of single-parent families stay on AFDC for a long time. Disputes over this question are complicated by the fact that most data are collected annually, revealing who received AFDC sometime during a year, rather than monthly, which would indicate whether and how a family alternated work force participation and AFDC benefits, depending on the shape of the job opportunities. See Mark Greenberg, Beyond Stereotypes: What State AFDC Studies on Length of Stay Tell Us About Welfare as a "Way of Life" i, vi (1993).

Quite different policy responses should follow from findings of short-term rather than longterm welfare receipt. Indeed, if most families who receive AFDC do so for a year or less, proposed reforms that establish a two-year maximum may perversely induce people to remain enrolled in the program longer than they otherwise would. See Mark Greenberg, The Devil Is in the Details: Key Questions in the Effort to "End Welfare as We Know It" 4-8 (1993).
 
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The third historical explanation points simply to the massive entry of women into the labor market during the past two decades. In the light of evidence that over fifty percent of women with children under six work outside the home, n51 more and more Americans find it inequitable that poor mothers should receive financial support to stay home with their children.
 
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n51 Reischauer, supra note 50, at 17.
 
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There are, of course, tensions between and among these explanations. The first two assume that the work requirements are chiefly stigmatizing and punitive. The third is based on a claim of equity and suggests that mothers on welfare should work because changes in the U.S. economy and, more generally, in gender roles mean that all mothers are expected to work outside the home. But, rather than adjudicate among the historical theories, let us just ask: (1) whether the equity argument makes sense; and in any case, (2) whether the work requirements hold promise of reducing poverty and promoting economic selfsufficiency for mothers with young children.


II. Why Shouldn't These Women Have to Work Like Other Women?


Initially, this argument does look compelling; the work requirements for mothers on welfare simply reflect changing social expectations of all women. A revolution in public attitudes about women's rights and abilities has opened avenues for opportunity. In addition, the changing nature of the U.S. economy prevents most families from being able to support themselves on one paycheck. n52
 
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n52 See John E. Schwarz & Thomas J. Volgy, Social Support for Self-Reliance: The Politics of Making Work Pay, American Prospect, 67, 69 (Spring 1992); see also Handler & Hasenfeld, supra note 7, at 135-38.
 
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Why then, goes the equity argument, shouldn't mothers who seek welfare also be required to work? One response is that the very concept of a "requirement" signals disparate treatment. Only the women seeking welfare benefits would be required by the government to work; others
 [*827]  do so without a governmental mandate. They may feel compelled economically; they may find working outside the home less than optimal, nevertheless it is still at some level their own choice rather than a governmental directive. The fact of choice appears, to some degree, in the statistics: many of the women in the work force with young children work part-time or less than the full year. n53 Moreover, AFDC mothers do not differ greatly from other mothers, because thirty-nine percent of single AFDC mothers combine work with welfare, or alternate work and welfare within two years. n54
 
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n53 See Reischauer, supra note 50, at 17. He uses Census data from 1987 to show that married women whose youngest child is under 6 participate in the labor force in 1987 at 56.8%, and at 70.6% where the youngest child is aged 6 or older. A similar spread appears for separated women, never-married women, and divorced women, with a greater spread for widowed women (38.5% with children under 6, 60.1% with children 6 or older). Id.; see also Handler & Hasenfeld, supra note 7, at 135-36 (noting increase in labor participation between 19501980 of married women with spouses present who have children under 6 from 10% to 45%, and for those with children over 6 from 30% to over 60%); Deborah Rhode, Justice and Gender 172-75 (1989) (discussing shortage of adequate jobs that permit flexible hours or parttime work to accommodate child care responsibilities).

n54 Williams, supra note 16, at 746 n.177.
 
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Yet the "new consensus" embodied in the Family Support Act expects work force and work training participation by mothers whose youngest child is three, and grants states the option to expand the requirement to mothers whose youngest child is one. These cut-offs are not mirrored in the work participation patterns of the non-welfare mothers. The departure from the previous cut-off of age six is especially noteworthy, given that this is the usual age when a child gains the maturity and independence to begin school.

More significant distinctions may rebut the equity argument. As a matter of sheer economics, welfare mothers do not receive the same scope of government benefits available to those who work. Government tax credits and tax deductions for childcare and mortgages are considerably more valuable to those not on welfare than to those on welfare. In addition, gainful employment jeopardizes many benefits otherwise available to welfare recipients, benefits including healthcare, subsidized housing, and foodstamps. One recent analysis published in the New York Times indicates how an AFDC recipient would obtain $ 572 per month if she works and still retains her foodstamp benefits, while she would be eligible for $ 741 if she remains on welfare. n55
 
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n55 Jason DeParle, When Giving Up Welfare for a Job Just Doesn't Pay, N.Y. Times, July 8, 1992, at A1, A15.
 
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Many of the mothers on welfare face considerable disadvantages in
 [*828]  the labor market that distinguish them from many of the other mothers who enter the labor force. Not only do all these women face depressed wages due to continuing patterns of unequal pay for women, n56 but many of the women on welfare also risk exposure to racial discrimination and sexual harassment. n57 In addition, given their probable lack of skills, limited education levels, and childcare obligations, the job options for most mothers on welfare are sparse and unlikely to move them and their families out of poverty.
 
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n56 See Diane Pearce, Welfare is Not For Women: Why the War On Poverty Cannot Conquer the Feminization of Poverty, in Women, the State and Welfare 265 (Linda Gordon ed., 1990).

n57 See generally Teresa L. Amott, Black Women and AFDC: Making Entitlement Out of Necessity, in Women, the State and Welfare 280 (Linda Gordon ed., 1990).
 
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In a recent article, Professor Lucie White details all too vividly the limited job options open to a particular mother living in the mid-South on welfare. n58 The mother is a thirty-seven-year-old African-American woman with a ninth grade education and two children, one under school age. n59 She could work in a fast-food restaurant that pays little, affords minimal benefits, and uses work shifts difficult for a single mother with kids, or in a sit-down restaurant where her likely opportunity as a Black woman in the South would be a job washing pots, cleaning toilets, or mopping floors. n60 She might find a job in one of the local chicken processing plants which have notoriously poor and unsafe working conditions, n61 or she could work as a maid, and risk routine humiliation and perhaps sexual violence. n62 As White notes, the woman she describes finds being on AFDC itself demeaning, but comparatively more acceptable then these other options. n63
 
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n58 White, supra note 23, at 1979-85.

n59 One of her children was enrolled in the pre-school Headstart program. Id. at 1973.

n60 Id. at 1980-81.

n61 Id. at 1981-82.

n62 Id. at 1983-84.

n63 Id. at 1973.
 
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Many people accept the kinds of jobs that White portrays here; many women with and without children work in such settings, and it is against this backdrop that the equity argument still manages to have force. Yet White's account assumes that even these jobs are available, which may not be true in every community. n64 This account also omits some of the additional costs imposed by a welfare mother's effort to participate in the paid labor force. She will need to purchase clothes
 [*829]  appropriate to the public worlds of work. n65 She will have to handle transportation not only between work and home but also to and from the childcare and school settings for her children, as well as any health services they may need.
 
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n64 See Lynn, supra note 37, at 87 (noting increase in individuals reporting they could not find work and patterns of discouragement especially among African-Americans).

n65 See Theresa Funiciello, Tyranny of Kindness: Dismantling the Welfare System to End Poverty in America 10 (1993) ("On welfare, I could wear whatever passed for clothes without giving much thought to it. On my paying job, the expectations were not so lax.").
 
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Probably most importantly, even full-time work is unlikely to move a single mother and her family out of poverty. According to David Ellwood's calculations, "even one full-time job and one half-time job at the minimum wage will not bring a family of four up to the poverty line." n66 The equity argument begins to deflate in this light. Many women enter the workforce because their work will help their families move out of poverty or be able to afford to save or purchase desired goods. For single mothers, this assessment of the benefits from entering the workforce must be different because the wages they can attain so often will not move the family out of poverty.
 
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n66 David T. Ellwood, Poor Support 88 (1988). Ellwood's own proposals while he worked in an academic job combined raising the minimum wage, expanding the earned income tax credit, creating a refundable child care credit, preserving subsidies for child care and medical insurance, and improving child support enforcement and still he concluded that part-time work would be the reasonable expectation for single mothers. See id. at 137, 166; see also David T. Ellwood, Child Support Enforcement and Insurance Proposal, 14 Youth Pol'y 10, 11 (1992). In the current world, where Ellwood serves as the Assistant Secretary of Health and Human Services for planning and evaluation and co-directs the welfare reform working group, he has had to scale back his plan and focus on an expanded Earned Income Tax Credit, a higher minimum wage, and modest investments in vocational skills. Lynn, supra note 37, at 89. He has largely been known in that climate of political compromise as the "father of welfare time limits." Id. at 90.
 
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Even aside from the sheer economic differences between mothers on welfare and other mothers who enter the paid labor force, many poor women face special challenges in managing their households and caring for their children. Managing the tight budgets imposed by poverty requires a fair amount of creativity and time. Cooking nutritious meals without much money means soaking and simmering dry beans half the day, baking bread, making soup--tasks that take time. n67 The mothers must arrange ways to pool childcare and transportation to permit trips to supermarkets and discount department stores, because such stores seldom locate in their neighborhoods. Owning no washing machine--and finding none in the rented apartment--means coordinating trips to the laundromat. Managing with no utilities in the summer and no heat in
 [*830]  the winter and lacking basic furniture often pose special challenges that reflect the state of the housing market and the difficulties in enforcing tenants' rights.
 
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n67 Funiciello, supra note 65, at 10.
 
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I can't get out of my head the story of the grandmother who spent her rent stipend on a crib for a grandchild because she had lost another grandchild to lead poisoning and hoped the crib would at least confine the baby from the peeling paint. n68 That grandmother then had to battle the welfare bureaucracy that charged her with misusing her welfare funds. The story reminds us of the real circumstances battled by poor mothers. Add to that the fact that twelve times as many poor children as non-poor children die in fires, and eight times as many die of disease, stray bullets, explosions caused by kitchen stoves used for heat, and other accidents. n69 In the face of these risks, is it a wonder that many mothers on welfare believe they need to stay home and care for their children? One woman explained how, "capitulating to the social pressure to be off welfare, I left my daughter at age one and a half with people who could not begin to match my parenting skills." n70 Consider how the problem continues or even deepens when the kids grow older and need supervision after school. The group of mothers on welfare (not a majority but a sizable group) who live in "ghetto" urban areas confront the troubles posed by gangs, drugs, and violence. Protecting their children and guarding them from these temptations and dangers is itself a full-time job. Few of these challenges occupy the lives of the other women who choose to enter the labor force.
 
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n68 Id. at 16-17.

n69 Id. at 17.

n70 Id. at 11.
 
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These challenges to the equity argument illuminate the ways in which mothers on welfare may experience circumstances that render them importantly different from other mothers who may choose to work outside the home. However, there is one more group who can be considered for comparison purposes, so long as equity is the question--widows eligible for social security benefits. These individuals receive benefits set at a considerably higher level than AFDC, partly because the federal government sets Social Security while leaving AFDC to the states with no mandatory minimum. n71 Most importantly, the widows receiving Social Security are not expected or required to work, to enter job training, or in any other way to change their behavior to remain eligible for the benefits. Why? One welfare activist com  [*831]  ments that

 
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n71 Id. at 268-69.
 
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the only real difference between survivor' $ (who receives social security$ ) and welfare' families . . . is the imprimatur of the father. The message: the needs and rights of women and children are determined not by universal standards but by the nature of their prior relationship to a man. Why punish the mother and children for the negligence or inability of the father to provide? n72
 
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n72 Id. at 9; see also Martha Fineman, Images of Mothers in Poverty Discourses, 1991 Duke L.J. 274, 285-86 (noting how the recipient of social security survivor benefits differs from the AFDC recipient only in her relationship to a male which determines whether or not she is "deserving" of help).
 
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Why, indeed?

One could argue that such equity arguments are hopeless because there is no way to decide which group rightly should compare with which other group. When we ask whether welfare mothers are more like social security widows or more like working class mothers who join the labor force, we simply postpone addressing the underlying questions about social values and social worth.


III. Do the Work Requirements Work? n73

 
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n73 A careful evaluation of recent workfare programs documents some modest achievements and considerable failure to achieve stated objectives. See Judith M. Gueron & Edward Pauly, From Welfare to Work (1991).
 
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Let's put the equity argument and my critique to one side for now. What if the AFDC work requirements really work? Wouldn't that render them justifiable? It turns out we will not have to reach that question, because, in fact, all the evidence suggests that the requirements do not achieve their goals of moving mothers--or others--from welfare to the paid workforce.

The AFDC work requirements do not move people into the paid workforce for at least two reasons. First, the work programs and their associated services and supports are routinely underfunded and unable to reach any but a small percentage of the intended individuals. Second, larger problems in the economy make it unlikely that good jobs can be found for most of the welfare recipients targeted by the work requirements.

You may object, isn't it too soon to judge an act adopted in 1988? Here, once again, a broader historical perspective is useful. For it turns out that the 1988 reforms bear uncanny parallels to earlier reforms of
 [*832]  the welfare system--reforms which also did not move people into the paid work force. Indeed, the underfunding of work programs associated with AFDC occurred in the past as well as in the present. Work requirements, including training programs and support services, have been some part of AFDC since 1967 with the WIN program. n74 It required able-bodied poor people to participate in the labor market, and offered incentives such as daycare and training to induce women to participate. By all measures, it has had dismal results. n75 From the start, less than a quarter of supposedly eligible participants were deemed appropriate for the programs; an even smaller number actually participated, and ultimately jobs were obtained for only two to three percent of the eligible AFDC recipients. n76 At the same time, welfare expenditures soared. n77 Nonetheless, WIN expanded in 1971 to include mothers with children aged six or older and mandated their participation in employment services and subsidized employment programs. n78 Again, studies show that this version of the program moved a very small proportion of women from welfare to the labor market and had no apparent impact on AFDC expenditures. n79 Poor local labor markets, demands for services far beyond the available resources, and local bureaucratic pressures contributed to the failure. n80 Even those states that claim successful job placements tended to produce "make-work" jobs. n81
 
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n74 Handler & Hasenfeld, supra note 7, at 134.

n75 Id. at 139.

n76 Id.

n77 Id. at 146.

n78 Id. at 154.

n79 Id. at 156.

n80 Id. at 157-58, 197.

n81 Kosterlitz, supra note 12, at 2189.
 
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As this history suggests, part of the problem seems to be that no one learns from history, and every few years welfare reformers reinvent the work reforms of the last reform period. n82 The Family Support Act of 1988, including its JOBS program, still calls for more resources than either the federal or state governments have committed. n83 The states have not even used the money appropriated to implement the job programs. n84 Roughly 2.5 million women seem to be required--on paper--to participate in JOBS, but as of 1992 only 500,000 were doing so. n85 Large numbers of intended participants will never have access to
 [*833]  the services, training programs, or other elements of JOBS. n86 And there is no evidence that the Family Support Act will muster the kind of energy and persistence to sustain the effort, and continue subsidized daycare and healthcare long enough after a mother leaves welfare to reduce the costs to her of accepting employment. n87
 
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n82 Handler & Hasenfeld, supra note 7, at 203.

n83 Id. at 210, 215.

n84 Williams, supra note 16, at 746 n.177.

n85 Kosterlitz, supra note 12, at 2190 (quoting Paul Offner, former aide to Senator Moynihan of New York).

n86 In addition, the shortage of child care slots for infants and toddlers from AFDC families has troubled implementation of workfare programs. See Sara Hill et al., Babies on Buses: Lessons from Initial Implementation of the Job Teen Parent Provisions 27 (May 1991) (Center for Law and Social Policy).

n87 Handler & Hasenfeld, supra note 7, at 231.
 
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The second part of the problem also gains from historical perspective, but here the point is the dramatic structural shift in the American economy. n88 Real wages have declined for low-wage male workers since the 1980s, n89 and the possibility of earning enough to support a family has sharply diminished for anyone lacking a high school education, and increasingly for people lacking college training. Although women's wages in general are catching up to men's, women's wages at the low end have been stagnant. n90 All the evidence suggests that the demand for relatively unskilled workers in the U.S. will continue to diminish, n91 and low-wage economies, especially in Asia and Latin America, will compete for the job opportunities that in the past would have been available to unskilled American workers. n92 Persistent patterns of racial discrimination by employers compound this problem for African-Americans lacking higher education. n93 While the problems for two-parent families are themselves profound, families headed by single mothers with only a high school education have a better than even chance of being poor or near poor. n94 The kind of skill improvement contemplated even by a fully-funded Family Support Act and JOBS program could not provide the changes in either these individuals' educational background or the employment structure that would alter these patterns. And when low-skill women do get jobs, it is often in competition with low-skill men who may well be the fathers of their
 [*834]  children and who are delinquent in their child support payments. n95
 
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n88 See generally Maxine Baca Zinn, Family, Race, and Poverty in the Eighties, 14 Signs 856 (1989) (comparing cultural and structural models of the underclass).

n89 Lynn, supra note 37, at 86-87.

n90 Id. at 86.

n91 Id. at 87.

n92 Id.

n93 Id.

n94 Id. at 88.

n95 Id.
 
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Simply put, requiring mothers of young children to participate in job training and counseling programs and to seek work is simply unlikely to alter the present state of affairs. Neither tough work requirements nor more money for training and services promise to work. n96 Perhaps a massive public jobs program could make a difference, but that does not seem to be realistically on the policy agenda in the near future. n97 In sum, if there is a consensus founded on research, it is that the AFDC work requirements, past and future, do not accomplish the goal of moving people from economic dependency to economic selfsufficiency. Similar research demonstrates the inefficacy of learnfare and family caps. n98
 
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n96 See Behavior Modification, supra note 22, at 271 (discussing analysis of David T. Ellwood).

n97 See id.

n98 Lucy Williams offers effective demonstrations of the empirical fallacies behind Learnfare, Family Caps, and Bridefare that similarly underscore the symbolic, cultural meanings of these programs. Williams, supra note 16, at 728-41.
 
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Perhaps, however, the work requirements are efficacious in another sense. The repeated waves of welfare reform that impose work requirements suggest that the passage of these requirements accomplishes some valued social and political purposes. Jacobus tenBroek wrote some years ago that welfare programs "are designed to safeguard the health, safety, morals, and well-being of the fortunate rather than directly to improve the lot of the unfortunate." n99
 
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n99 Jacobus tenBroek, California's Dual System of Family Law: Its Origin, Development, and Present Status 17 Stan. L. Rev. 614, 681 (1965).
 
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If we examine the welfare reforms from this perspective, it may well be that the work requirements serve the symbolic and psychological interests of those who never will be subjected to them. Joel Handler and Yeheskel Hasenfeld argue that welfare reforms express cultural symbols that


try to differentiate between the deserving and undeserving poor in order to uphold such dominant values as the work ethic and family, gender, race, and ethnic relations. In this sense welfare policy is targeted not only at the poor, but equally at the nonpoor, through the symbols it conveys about what behaviors are deemed virtuous or deviant. n100
 
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n100 Handler & Hasenfeld, supra note 7, at 11.
 
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 [*835]  Moreover, Professor Martha Fineman maintains that the Family Support Act punishes single mothers because they deviate from and challenge the patriarchal family model. n101 Professor Dorothy Roberts notes that "the dependent status of the poor in America is reinforced by an ideology that separates and stigmatizes them as morally weak and different from us.'" n102 Theresa Funiciello writes that between the 1960s and the 1970s the society moved from a war on poverty to a "war on poor people." n103
 
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n101 Fineman, supra note 72; see also Martha Albertson Fineman, Intimacy Outside of the Natural Family: The Limits of Privacy, 23 Conn. L. Rev. 955 (1991).

n102 Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 Geo. Wash. L. Rev. 587, 627 (1993); see also Thomas Ross, The Rhetoric of Poverty: Their Immorality Our Helplessness, 79 Geo. L.J. 1499, 1546 (1991).

n103 Funiciello, supra note 65, at xix.
 
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It is hardly new to blame the poor for their poverty. n104 One historian notes how 1989 journalistic accounts blaming African-Americans for their poverty directly echo similar accounts from 1889 attributing it to "defects in family and personal lives." n105 It also is not a new argument that the economically comfortable try to divide the poor into categories of deserving and undeserving. Nor is it a particularly new claim that welfare programs are designed to ensure that recipients are degraded and stigmatized. Many would argue that such stigmatizing elements of public aid are intended as a means to goad into self-sufficiency anyone who can make it. In this sense, the underfunding of social support programs accompanying welfare work requirements may accomplish a conscious or unconscious goal of allowing even more harsh judgments by those who do not look too closely at the actual operation of the programs. Handler and Hasenfeld argue that the lack of funding for welfare jobs programs is not accidental, but instead ensures that most welfare recipients will not be able to escape welfare through employment and thus will be deemed newly deviant by failing to fulfill the work expectations. n106
 
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n104 See generally William Ryan, Blaming the Victim (1971).

n105 Stephanie Coontz, The Way We Never Were: American Families and the Nostalgia Trap 111 (1992).

n106 Handler & Hasenfeld, supra note 7, at 206-07.
 
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If the welfare reforms work in this way, the recent focus on mothers has served a distinctive symbolic function. Coinciding with the new expectation that mothers with young children should work outside the home is a widening assumption that mothers who receive welfare are the cause of massive social problems. Even that idea is not brand new.
 [*836]  It gained an explosive expression in 1965 when Daniel Patrick Moynihan, then Assistant Secretary of Labor, wrote a report entitled, The Negro Family: The Case for National Action. n107 That report attributed a growing pattern of welfare dependency among African-Americans to the "break-down" of Black families, which in turn was traced to the demeaning of Black men under slavery and ever since. Most controversially, Moynihan identified as a pathology in the Black community the role of matriarchy--the domination of Black women due to their greater economic and social success in the wider community. n108 Contemporary analysts note how the very statistics supporting Moynihan's declaration of the crisis of the Black family now characterizes white families as well, although the media and public understandings still concentrate on images of the Black single mother on welfare. n109
 
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n107 The Negro Family: The Case for National Action, 30 Fed. Reg. (Dep't Labor 1965) ("Moynihan Report"), reprinted in Lee Rainwater & William L. Yancey, The Moynihan Report and the Politics of Controversy 39 (1967).

n108 See Rainwater & Yancey, supra note 107. Rainwater and Yancey argue that the controversy over the report stemmed at least in part from the timing of its release, the failure to modify its form as an internal document when released to the public, and the coincidence of riots in Watts. Id. at 155-56. They also specifically note that a more sensitive, "revised report might well have taken account of the ability of some matrifocal families to withstand the pressures of the world around them and also have noted that until the socioeconomic situation in which poor Negroes find themselves changes, matrifocality is a necessary, perhaps inevitable, adaptation." Id. at 164.

n109 See Marion Wright Edelman, Families in Peril 23-25 (1987). Marion Wright Edelman commented that "trends for blacks foreshadow trends for whites, or are exaggerated representations of broader problems in our society, as blacks are often hurt earlier and more profoundly by social or economic changes that injure all poor and working-class Americans." Id. at 25. And yet, she continued, leaders and mass media often talk about social problems as if they only involve Blacks. Id.
 
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The work requirements that do not bring paid work thus enable society to blame mothers for social problems, including poverty, singleparent households, crack, and juvenile delinquency. n110 It especially "works" for society when this blame can be directed at an image of Black mothers, although white mothers are still the majority of the single parents receiving AFDC. n111 Some evidence of the power and
 [*837]  social utility of these negative images appeared in the public debates over the confirmation of Justice Clarence Thomas. Remember, one of his public comments at that time concerned his sister, whom he criticized for her dependence on welfare. n112 Thus, he established himself as admirably economically successful, morally upright, and properly disparaging of the same image disparaged by white middle-class people. In this case, the Black single mother just happened to be his own sister.
 
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n110 Even an apparently benign program--such as one requiring proof of child immunization to avoid a cut in AFDC benefits--in effect punishes poor parents for the failures in public health and transportation systems to facilitate immunization. See Center for Law and Social Policy, Needling the System: Welfare Agency Approaches to Preschool Immunization iii (1993).

n111 See Daniel Patrick Moynihan, Family and Nation 51-52 (1986) (discussing the changing composition of the population in poverty).

n112 The comments about his sister appeared in a 1980 speech that gained publicity when he was nominated to the Supreme Court. See Julianne Malveaux, The Thomas View of Women's Lives, USA Today, Sept. 12, 1991, at 13A; Timothy M. Phelps, The Education of Clarence Thomas, Newsday, Sept. 9, 1991, at 5. For a factual rejoinder to Thomas's characterization of his sister, see Letter to the Editor by Joel F. Handler, N.Y. Times, July 23, 1991, at A20. For a discussion of what his comments about his sister may indicate about Thomas's character, see Catharine Pierce Wells, Clarence Thomas: The Invisible Man, 67 S. Cal. L. Rev. 117, 132-34 (1993).
 
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One social critic concludes that when Thomas then faced Anita Hill's charges of sexual harassment, one of the ways he mobilized support for himself was to draw on opposition to both Black women and "welfare queens": "Because of their historical and political salience, the welfare queen and the Black lady are two figures who exist as narratives guaranteed to mobilize support for Thomas's confirmation from almost every sector of U.S. society." n113 This same critic concludes that "the lesson implied by the Moynihan Report . . . is that the welfare-dependent single mother is finally the synecdoche, the shortest possible shorthand, for the pathology of poor, urban, Black culture." n114 According to some welfare critics, lacking a job means degeneracy; having a child without the ongoing presence of a father means moral deviance; being a mother in these circumstances means nurturing a next generation of pathology; and receiving welfare means being a debit to society. n115
 
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n113 Wahneema Lubiano, Black Ladies, Welfare Queens, and State Minstrels: Ideological War by Narrative Means, in Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality 323, 332 (Toni Morrison ed., 1992).

n114 Id. at 335.

n115 See id. at 337-39.
 
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Welfare reforms that do not work supply society with scapegoats, especially during what feel like economic hard times for most other people. They also help to heighten public attention to the categories of social cleavage, such as race, gender, and class as opposed to, for example, focusing attention on children. The fact that forty percent of America's poor are children continues to escape public awareness. n116
 [*838]  Indeed, one-fifth of all children were poor in 1987, a sharp increase over the prior decade, and estimates predict that close to one half of all children in this the wealthiest nation will experience at least one year in poverty before reaching the age of eighteen. n117 In the past, the image of the lone irresponsible man predominated when people talked about the poor; perhaps the image of the dependent single mother now predominates and stands as the lightning rod for negative feelings about the poor. Two years ago, the Children's Defense Fund sponsored focus groups around the country to discern public attitudes about poor children. Their researchers found that "when participants describe the poor they see as least deserving of assistance, the most common image is the welfare mother'" and they also found real anger expressed toward parents of large numbers of children on public assistance. n118 These attitudes seem incorrigible and unchanging despite the facts that as of 1990, the average AFDC family including its adult members had 2.9 members; seventy-two percent of all families on AFDC have only one or two children, and almost ninety percent have three or fewer children. n119
 
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n116 Mellman & Lazarus, Attitudes Toward Poverty: Interpretive Report of CDF Focus Group Findings 1 (May 1991).

n117 Reischauer, supra note 50, at 14.

n118 Mellman & Lazarus, supra note 116, at 17.

n119 Staff of House Comm. on Ways and Means, 102d Cong. 2d Sess., Overview of Entitlement Programs: Background Material and Data on Programs Within the Jurisdiction of the Comm. on Ways and Means 669 (Comm. Print 1992).
 
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In sum, the work requirements imposed on mothers who receive welfare "work" in the sense of expressing and perpetuating negative views about poor people, single mothers, and African-Americans. I suggest thus that the recent welfare reforms essentially reiterate longstanding lines of social cleavage. The same negative images seem to animate prosecutions of pregnant women for drug use. n120 Recent studies in this area demonstrate remarkably more coercive and punitive treatment applied to poor women and women of color compared with women with more social privileges. n121
 [*839] 
 
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n120 See Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419 (1991).

n121 Id. at 1432-36. Current clinical studies of racial and class disparities in the treatment of drug-using pregnant women confirm the point. Dr. Wendy Chavkin & Dr. Paul Wise, Presentation to Harvard University Early Life Working Group (Sept. 14, 1993). Similarly, proposals to induce women on welfare to use the Norplant contraceptive, and requirements that such women participate in paternity and child support enforcement actions can take the form of harassment and deprecation.
 
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IV. Alternatives


When public policies seem to work chiefly to express and perpetuate negative images of a class of people, shouldn't they be challenged? I suggest here strict social, if not legal, scrutiny, for social policies such as the welfare work requirements applied to mothers of young children, because such policies use and sharpen the already troubling divisions of class, gender, and race. By social scrutiny, I mean public and political re-evaluation and skepticism; I reserve for another day whether challenges in court would be wise or successful.

I want to advocate a public debate that second-guesses what seems like consensus when that consensus happens to burden poor single mothers. These women, after all, are not only often poorly regarded by others, these are also people with notably little political power or power to influence their public images. Concerns about equality and defects in democracy should place us on our guard against policies that burden poor single mothers. Equally necessary, I think, is skepticism about a social policy that assigns to relatively powerless individuals responsibility for problems that are at least partly social and economic. n122 Such a policy not only lacks empirical force, it also may do damage to the moral and political health of the entire society.
 
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n122 For a paradoxically related point, see Lubiano, supra note 113, at 336:

What welfare mothers/queens and Black ladies--as cover stories that draw our attention away from the abuses and failures of our political-economic structure--also do is to undermine the notion of family (actually existing families as well as normative ideas about family) as entirely private, individual, and not connected to the state or the collective public.


 
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On this subject, once again, I found the work of an historian striking. Stephanie Coontz has written a book entitled, The Way We Never Were: American Families and the Nostalgia Trap n123 which examines parallels between the present moment at the end of the twentieth century and developments in this country's views of family and politics at the end of the last century. Drawing on sermons, popular literature, and other materials of the day, she argues that during the latter half of the nineteenth century, a cultural emphasis on "private rectitude" and family values made the family a "moral yardstick with which to measure the public realm." n124 Families at least as a cultural ideal, assumed the place of a kind of "moral oasis"--and moral values that previously had a public political meaning became shaped by conceptions of family life.
 [*840]  Thus, "virtue lost its earlier political meaning and became reduced to an assessment of whether a woman was likely to remain sexually chaste until marriage or be faithful to her husband afterward; character came to describe a man's personal traits, especially his behavior toward his family." n125
 
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n123 Coontz, supra note 105.

n124 Id. at 108 (quoting Richard Sennett, The Fall of Public Man 20 (1977)).

n125 Id. at 108.
 
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Still describing developments a hundred years ago, Coontz notes how "the elevation of family life to the center of morality sanctioned a rising degree of consumerism and selfishness within the middle class." n126 This emphasis on private morality and personal responsibility included growing statements attributing poverty to the moral failings of the poor. The romanticized image of the family evoked self-righteous criticism of those who could not live up to it. n127
 
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n126 Id. at 109.

n127 Id. at 111.
 
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Coontz argues that as "private family language monopolized moral vocabulary," discussions of public life became more abstract and unrelated to facts--and concerns about the sexual morality of public figures displaced other kinds of evaluations. n128 In addition, she suggests that "when family relations become our only model for defining what emotionally "real" relationships are like,' we can empathize and interact only with people whom we can imagine as potential lovers or family members. The choice becomes either a personal relationship or none, a familial intimacy or complete alienation." n129 The polity is impoverished by these narrow degrees of empathy, and the result is a truncated sense of obligation or connection across the society. n130
 
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n128 Id. at 113, 118-19.

n129 Id. at 115.

n130 Id. at 119-20.
 
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Like Coontz, I sense striking parallels between the patterns she describes from a century ago and the contemporary scene. If she is right, the cost to all of us is not merely missing the chance to treat the less fortunate better, but also a more profound diminution of our political and moral worlds. With these recognized as the stakes, perhaps law students, academics, politicians, and others can take an interest in the often specialized and segregated field of welfare policy--and consider some imaginative changes.

What kinds of changes could we consider? Talking with mothers on welfare about what changes they would like to see would certainly help. n131 I think many will indicate how they would like chances to
 [*841]  work outside the home, but perhaps not when they have preschool children. Lucie White's conversations with mothers on welfare also indicate how many of them would like some flexibility to pool resources and design collective arrangements to care for children and manage households--and yet the current welfare rules prevent such efforts. n132 Any initiatives in this direction will have to respond to the deep public skepticism about trusting the judgment of poor people regarding the use of resources, a skepticism that produces policies of earmarked vouchers and subsidies rather than direct cash transfers. n133 Perhaps groups of recipients could develop grant applications proposing accountable ways to use pooled funds. The details are not my point here: thinking outside the existing framework is.
 
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n131 Barbara Ehrenreich offers a provocative argument that the apparent silence of poor people--or their exclusion from public discussions about their own treatment--has helped middle class Americans identify with and fear the poor--and regulate them. See Barbara Ehrenreich, Fear of Falling: The Inner Life of the Middle Class 55-56 (1989).

n132 Conversation with Lucie White, Professor of Law, University of California at Los Angeles School of Law (Oct. 5, 1993).

n133 Mellman & Lazarus, supra note 116, at 2138.
 
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Somewhat closer to the current reform regime, however, would be serious efforts to create jobs. Why not pay poor mothers to become childcare providers, parent aides in the schools, and home visitors supporting other neighborhood families? Why not pay poor mothers, poor fathers, and poor teens to develop community programs like athletics and gardening? After Hurricane Andrew, some relief efforts focused on helping individuals, especially women, learn to repair their homes--and giving them skills they could then use in the marketplace.

I would also urge those in Washington to put back on the agenda some older ideas, like negative income taxes and child support assurance guaranteeing a minimum level--funded in part by tax revenues and in part by child support payments. n134 Some articulations of these ideas indicate that a mother with two children could work part-time at $ 5 an hour and still be able to earn more than the poverty level. n135 I would add one modest expansion of this idea: why not consider paying mothers of especially young children to care for their children? I do not
 [*842]  mean here to propose such a plan for all mothers across all incomes, although other countries' initiatives in that direction deserve our most serious attention. n136 Let us consider arguments for paying all poor mothers to care for their infants and toddlers--not only because this work is socially valuable but also because it must be performed amidst the entire array of environmental dangers and difficulties I have already discussed that render their task more difficult than the parenting job faced by others. n137 I acknowledge that the idea of paying women for caring for their own children and households runs up against some of the deepest assumptions about gender and work. Reformers tried unsuccessfully in the 19th century to devise a regime of "joint property" that would entitle women to a share of household wealth in return for their contributions to childcare and housework. n138 Contemporary divorce reformers try to accomplish the same task, and yet a sizable group of women in poverty are formerly middle-class women impoverished upon divorce. n139 Yet unless we start to talk seriously about alternatives that challenge deep assumptions about gender roles, what counts as work, and what and whom should be valued, we will never learn from history. We will only repeat it.

 
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n134 See Ellwood, supra note 66, at 165 (endorsing Irwin Garfinkel's scheme). As a policymaker in the Clinton administration's Department of Health and Human Services, Ellwood's attention seems to have shifted to the far more modest idea of using advance child support payments or advance earned income tax credits to provide for children's material needs. Discussions between my research assistant, Michelle Anglade, and Paula Roberts of the Center for Law and Social Policy (Oct. 3, 1993); comments by Erika George, formerly of the Center for Law and Social Policy (Feb. 13, 1994).

n135 Ellwood, supra note 66, at 165.

n136 See, e.g., Parental Leave and Child Care: Setting a Research and Policy Agenda (Janet Shibley Hyde & Marilyn J. Essex eds., 1991); Anne Lofaso, Pregnancy and Parental Care Policies in the United States and European Community: What Do They Tell Us About Underlying Social Values, 12 Comp. Lab. L.J. 458 (1991); see also Hilda Kahne & Janet Giele, Continuing Struggle: Women's Work and Lives in Modernizing Industrial Countries (1992).

n137 See supra text accompanying notes 68-70.

n138 Reva Siegal, Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L.J. 1075 (1994).

n139 See Katherine Newman, Falling from Grace (1988); Lenore J. Weitzman, The Divorce Revolution 351-52 (1985).
 
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