Amicus Curiae Brief — Dandridge v. Williams

Supreme Court brief1970

Ask Donna

What actually matters in this document.

Text

In THE

Supreme Comt of the United

Ocroser Term, 1969

No. 131

Epmunp P. Danprincz, Jr., CHAIRMAN OF THE MARYLAND

State Boarp or Pusiic WELFARE, ET AL.,

Appellants,

Vin

Luypa WILLIAMS, ET AL.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BRIEF OF AMICI CURIAE: THE CENTER ON SOCIAL

WELFARE POLICY AND LAW, NATIONAL WELFARE

RIGHTS ORGANIZATION, ASSOCIATED CATHOLIC

CHARITIES, INCORPORATED, AND SEVEN NEIGH-

BORHOOD LEGAL SERVICES OFFICES NOW PROSE-

CUTING SIMILAR CASES

Pavut M. Dopyr«

Henry A. FREEDMAN

Louise LANDER

401 W. 117th Street

New York, New York 10027

Attorneys for the Center on

Social Welfare Policy and Law

Cart RacHLin

1419 H Street, N. W.

Washington, D. C. 20005

Attorney for National Welfare

Rights Organization

Franors X. GALLAGHER

JoserH G. Finnerty, JR.

1 Charles Center

Baltimore, Maryland 21201

Attorneys for Associated Catholic

Charities, Incorporated

(Counsel continued on inside cover.)

Donatp F. Fontaine

Rosert E. Mirrev

156 Danforth Street

Portland, Maine 04101

Attorneys for Pine Tree Legal

Assistance, Inc.

AntHony B. CHING

112 W. Pennington Street

Tucson, Arizona 85701

Attorney for the Legal Aid Society

of the Pima County Bar Association

JOHN GANT

Epmunp J. Woop

104% Che

Seattle, Washington 98104

Attorneys for Seattle Legal

Services Center

Peter EB. Sirxin

Steven J. ANTLER

1095 Market Street

San Francisco, California 94103

Attorneys for the Neighborhood Legal

Assistance Foundation

JoHN L. Borrrner, JR.

1026 Quarrier Street

Charleston, West Virginia 25301

Attorney for the Legal Aid Society

of Charleston

Euus J. Frencu

HELENE Simson

MicHaEL BrowpDE

Cuartes Du Mars

County Courthouse Building

Albuquerque, New Mexico 87101

Attorneys for the Legal Aid Society

of Albuquerque

Micnart H. Terry

153 Pryor Street, S. W.

Atlanta, Georgia 30303

Attorney for Atlanta Legal Aid Society

Micuart A. Dorie

Citizens & Southern National

Bank Building

Atlanta, Georgia 30303

Interest of Amici Curiae ....

Statement of the Case

Summary of Argument

I. Imposition of the family maximum denies ap-

pellees the equal protection to which they are

entitled under the Fourteenth Amendment

A. The family maximum divides public assist-

ance recipients into two classes and imposes

deprivations on those children in larger

families

. The Equal Protection Clause requires a ra-

tional justification for the deprivation im-

posed by the family maximum

C. A searching appraisal of the family maximum

is required because of the fundamental im-

portance of public assistance, the powerless-

ness of AF'DC children, the effect of the maxi-

mum on the maintenance of an intact family

unit and the classification of children based

on parental conduct over which they have

no control

1. The challenged classification affects the

availability of the fundamental rudiments

of human existence

PAGE

2. Those subject to the deprivation created

by the family maximum comprise a

politically impotent class requiring this

Court’s special protection

3. The challenged classification interferes

with the maintenance of an intact family

unit

4. The family maximum creates classifica-

tions of children based on conduct of their

parents over which they have no control ..

. Limiting public assistance by imposition of

the family maximum denies appellees equal

protection

. The proffered state interests fail to justify

the imposition of family maximums ................

1. Family maximums provide a work incen-

tive

a. The work-incentive justification ap-

plies equally to persons not affected by

the family maximum

b. The work-incentive justification 1s of

relevance to only a small portion of

those persons subject to the family

maximum

ce. Congress has mandated highly selec-

tive work incentives and requirements

inconsistent with and preemptive of

work-incentive devices that coerce the

employable and unemployable alike ....

2. Family maximums deter desertion ............ 44

3. The family maximum as family planning .. 47

1 4. The family maximum is necessary to save

funds and please voters ... 49

II. Establishment of an arbitrary ceiling on the

3 amount of an AFDC grant violates the Social

Security Act .............. 50

A. The maximum grant violates the statutory

) command that aid shall be given to all eligible

individuals ................... 51

B. Congress has not endorsed maximum grants 53

' 1. Section 402(a)(23) 0.000002... ‘ee o4

3 Bee BE GID cinetecasthssdemsteniitcesnctiniianiiteabascietigiti 56

ss eens SER ule SI eS 59

5 FETAL HOA EIU CALE EO 61

Aprenpix A

) Details of AFDC Maximum Grant Schedules, by

Type and State .................... i 65

Aprenpix B

7 Effects of Grant Maximums on Plaintiffs in Ad-

judicated Cases .......................... 70

Tas.e or AUTHORITIES

Cases:

Anderson v. Burson, 300 F. Supp. 401 (N.D. Ga. 1968) .. 16,

Baxtrom v, Herald, 383 U.S. 107 (1966)

Boddie v. Connecticut, No. 265 (O.T. 1969)

Brown v. Bd. of Education, 347 U.S. 483 (1954)

Carrington v. Rash, 380 U.S. 89 (1965)

Collins v. Board of Social Welfare, 248 Iowa 369, 81

N.W.2d 4 (1957) 12

Cox v. Louisiana, 379 U.S. 536 (1965) ...... 16-17

Damico v. California, —— F. Supp. ——, Civ. No.

46538 (N.D. Cal. 1969) 46

Dews v. Henry, 297 IF. Supp. 587 (D. Ariz. 1969) ..3, 9, 12, 24,

Doe v. Shapiro, 302 F. Supp. 761 (1969) .

Douglas v. California, 372 U.S. 353 (1963)

F. S. Royster Guano Co. v. Virginia, 253 U.S. 412

(1920)

Ginsberg v. New York, 390 U.S. 629 (1968), reh. den.

391 U.S. 971

Goldberg v. Kelly, No. 62 (O.T. 1969)

Griffin v. Illinois, 351 U.S. 12 (1956)

Griswold v. Connecticut, 381 U.S. 479 (1965) 24, 32, 49

Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U.S. 150

(1896) 15

PAGE

Harper v. Virginia Bd. of Elections, 383 U.S. 663

(1966)

Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967),

aff’d sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C.

Cir. 1969)

Kaiser v. Montgomery, —— F. Supp. ——, Civ. No.

49613 (N.D. Cal. 1969) 3-4, 12, 16, 26, 50, 52

Kelly v. Wyman, 294 F. Supp. 893 (S.D.N.Y. 1968),

prob. juris. noted sub nom. Goldberg v. Kelly, 394

U.S. 970 (1969)

Keokee Coke Co. v. Taylor, 234 U.S. 224 (1914)

King v. Smith, 392 U.S. 309 (1968)

Levy v. Louisiana, 391 U.S. 68 (1968) 18, 25, 26, 49

Lindsey v. Smith, —— F. Supp. ——, Civ. No. 7636

(W.D. Wash. 1969)

Loving v. Virginia, 388 U.S. 1 ( 1967)

McLaughlin v. Florida, 379 U.S. 184 (1964)

Meyer v. Nebraska, 262 U.S. 390 (1923)

Monroe v. Bd. of Commissioners, 391 U.S. 450 (1968) .. 25

Mutual Loan Co. v. Martel, 222 U.S. 225 (1911)

Oyama v. California, 332 U.S. 633 (1948)

Pierce v. Society of Sisters, 268 U.S. 510 (1925)

Poe v. Ullman, 367 U.S. 497 (1961)

Powers v. Vincent, Civ. No. 68-170 (S.D. W.Va.)

Prince v. Massachusetts, 321 U.S. 158 (1944)

Parin

Toaade v¥. Wiainan, Ne. 640 (0.7, bon) Y, bd

Rathatein ¥, enagenes HOW. Aapp, HO (RL DANY,

tay). 16, 17, BI, Be, oO

Malagar v¥. Geodwin, Civ, Ne, XOB7? CD. No Mea) oo. 4

Nanka v. Geargia, No. Bd COLT, Todt) : y

Shapiro v. ‘Mhempaon, M4 UR. GIN CINE) 0B 10, 1%, a),

At), Hil, Ah

Shelton v. Tucker, Hdd UN, 470 (1N00) |. 4)

Nherhert ¥. Verner, W74 U8. WN (106i) HY, 40

Simmons v, Housing Authority of West Haven, No,

aL (OT, Wap) ...... bisseuntenaeassvimcrinet ‘a y

Skinner ¥, Oklahoma, HG ULM, B46 (14) | 1M, iY, 40

Smith v. Hoard of Commiasioners of the Diateiet of

Columbia, 24) 1. Supp. 484 (DDO. HMA)

Smith v. Ring, 877. Supp. a) CD, Ala, 1067) aff'd on

oth, ada, 802 U.S, #00 (1bGa) ssabanieibbapidankente 1¢

Thomas v. Burson, Civ, No. SYN (MAD. Gag coon... | 4

United States ¥. Carolene Produeta, 404 U.N, 144

COED = scenes a eidlllie Niedakeasbdibdaheaibbasiisiiteidednestineadshidinhsinecies:

Ward vy. Winstead, Civ, No, GC G820-K (NLD. Mina). Ul

Weat Coast Hotel v. Parriah, 300 U.S, 370 (1987) ... os

Westberry vy. Fisher, 207 F. Supp. 1100 (D. Me,

| ee sree Be)

Wheeler v, Montgomery, No. 4 (0."0, SD icacssneese Nass 2

Williams v. Dandridge, 297 F. Supp. 450 (D. Mad.

SE IEEE vindttiiticsentnthcsiadicyinuienictiinhentitenanil 12, 24, 28, 31, 40

Williamson y. Lee Optical Co., 348 U.S "483 (1955) ...

vil

Constitutional Proitainoe

U, &. Constitution:

Wiret Atendinent

Mourteenth Amendment

Federal Ntatitea

42 U.R.0', Q001 (LomM)

42 ULK.0, Q00¥(H)(7)

42 UN.0, §000(H)(K) |

43 UK.C'. $d02(H) (M) (ii)

42 U.K.0, 90d (Hn) (0)

42 U.8.0, §002(H) (10)

4 UA.C. Q00R(H) (IH) |.

42 UB.C. §002(n) (15) (9) (1)

42 U.S.C, Q002(H) CH) CC)

42.8.0, 2002(4) (19)

ULC, 402(H) (1) (A) (i) a sinaans ;

@ULN.C, 4002(a) (19) (A) (ii)...

2.8.0, QO02 (a) (19) (A) (iii)

2 UNC, QO02(A)(ID)(A)(¥) co

2 U.S.C, §002() (19) (A) (vi)

@U,N.C, 9002(a) (19) (A) (vii) ............

2 UN.C. §002(a) (19) (YC) occ

@ULS.C. §602(8) (19) HP) cocoon consasosnessescoass

I ia sccdorccncccstninnicetneonces cc. ce,

MAO, SOOGLG) CD) consaccccreresesossacese....

BA, GOBBER) ccsccvcssasccsccecssnssecssss-..

PAUP

Ady By OT A,

4,27, 0M)

MW,

ines sorsccsscesssassonsscons

42 ULB.C. SoM)

42 UAC. SONNE)

42 UBC. QO cn.

42 ULC, SORT

42 UAC, Lana)

42 UAC. grapabc dd)

Maryland Statute:

Ann. Code of Maryland

Artivle 27, 9988-00 0...

Article BRA, $17

Artiele BBA, 944A ..... i

BET es WD hsacecasencdsissasccssceosicsiaceiasieassissacnis

Maine Statute:

Maine I.8.A. $9741 (Supp, 1908-09) oo...

Social Security Amendments of 1907;

PL. 87-048, 70 Stat. 172 00.

PL. 90-248, 81 Stat. 82) oO, 04, On

Regulations:

45 C.F. $220.85, 84 Fed. Reg. 1857 (Jan, 28, 1969) ..40, 4

45 CLR. $283.20(a) (1), 34 Fed, Reg. 1894 (Jan. 20,

PAU

Other Authovition:

Bureau of Bovlal Selene Resenreh, tne, Living Comte

and Welfare Payinente fa (iat) 1")

Buren of Movlal Selenee Teaeareh, tne, Mie Layele

lative Hintory of Ald to Deqendent Childrens A

Chronuloglon! Aveount and Analyale of the Mederal

Leoglalative Procwme Y4t CON) . ha

Burne, Childhood Poverty and the Childven'n Allow

anee, IW Chlhdren'a Allowaneet and the Heonomle

Welfare of Children & (iene, ed, 100K) uit

Californin Wollnrve & Tate, Code 411¥08 27

Citivena’ Honrd of Inquiry into Hanger and Malu

triton in the United States, Hunger, ULSLA, 98

(1908) v1

Cohen, Hearings before the Nenate Aeleet Comm, on

Nutrition and Human Nevda, 00th Cong, 2d Benn,

part ¥, at 860 (INE) A |

Conf, Rep, No, 1080, HOt Cong, lat Sean, 69 (147) i)

Cont, Rep. No, 2000, 1 US, Code Cong, & Adin, News,

87th Cong, 2d Seas, 180 (1002) fi7

Conf, Rep, No, 2OO6 at 1080 fs

Developments in the Law—Hqual Protection, 42 Harv.

EVs RUUD (LOCO) exsssassessscsssinossesanssssnssossspsasscsssamosornscnity OO

Friedman, The Official Hatimates Are Wrong, in

Poverty American Style 106 (Miller, ed, 1966) ........ iy

Handbook of Public Assiatance Adminiatration, Part

NON wasidncasishbidsihadssilcoscastsistssibnsbdonssadanndaton Sassiitilidias |

Harrington, The Other America 13 (1962) idssbadiaaseabaal ,

PAGE

House Committee on Ways and Means, Hearings on

H.R, 5710, 90th Cong., Ist Sess. 59 (1967) 2000... i

House Committee on Ways and Means, Section-by-

Section Analysis of H.R, 5710, 90th Cong., Ist Sess.

37 (1967)

H.R. Rep. No. 544, 90th Cong,, Ist Sess. 3 (1967) ........ 41, 59

H.R. Rep. No. 615, 74th Cong., Ist Sess. 10 (1935) ........ 31

H.R. Rep. No. 1080, 90th Cong., Ist Sess. 58

IT ian lin sachentstaanepiaiitasignccdseniamahanadilionieetinnscdhgmeed 41, 55

H.R. Rep, No. 1414, 87th Cong., 2d Sess. 17 (1962) ... 57

gs CRT hale ae ANON a ele a a a eA 4

LeBeaux, Life on A.D.C.;: Budgets of Despair, in

Poverty in America 519 (Ferman, Kornbluh, and

Haber, eds. 1968)

Maryland State Department of Social Service, Pro-

file of Caseloads, Research Report No. 5 at 6

(1969) .... 21, 38, 39

National Center for Social Statistics, Social and Re-

habilitation Service, U.S. Dept. of Health, Educa-

tion, and Welfare, Report D-3 (Oct. 1968) ................ 6

menace

Orshansky, Counting the Poor: Another Look at the

Poverty Profile, in Poverty in America 67 (Ferman,

Kornbluh, and Haber, eds. 1968)

Perrella, “Women and the Labor Force,” Monthly

Labor Review (U.S. Dept. of Labor), Feb. 1968, p.3 3

Public Welfare Amendments of 1962, 1 U.S. Code

Cong. & Adm. News, 87th Cong., 2d Sess. 236

(1962) 58

Ribicoff, Hearings on H.R. 10606 Before the Senate

Comm, on Finance, 87th Cong., 2d Sess. 137 (1962) .. 57

PAGE

§. Rep. No. 744, 90th Cong,, Ist Sess. 176 (1967) ....54, 59, 60

§. Rep. No. 1589, 1 U.S. Code Cong. & Adm. News,

87th Cong., 2d Sess. 1956 (1962) ccc cceceseceseeee 58

Speth, Cotton, Bell, Mindus, A Model Negative Income

Tax Statute, 78 Yale L.J. 269 (1968) 2... 19

State of Maryland, Manual of the Dept. of Public

Welfare $215.19 (superseded Nov. 1, 1968) ................ 39

State of Maryland, Manual of the Dept. of Social Ser-

IID TIN AP ns ccesscascasiushiasipiinaettienmsanshepisnsmasiioeniniblictniaie 10

State of Maryland, Manual of the Dept. of Social Ser-

SIE TIEN GIIDCIIIS, cchchccstpessinnnesenetenisibineendahsiohtecenieinnshinuiniguiinneis 43

The President’s Commission on Income Maintenance

Programs, Poverty Amid Plenty: The American

Paradox 29 (mimeo Nov. 12, 1969) 19

Tussman & tenBroek, The Equal Protection of the

Laws, 37 Calif. L. Rev. 341 (1949) ooo. tcceeseeeee 29

U.S. Dept. of Health, Education and Welfare, Wel-

fare Administration, Division of Research, Growing

Up Poor 7 (1966) 23

U.S. Dept. of Health, Education and Welfare, Wel-

fare Administration, Division of Research, Low-In-

come Life Styles 4 (1968) 22

U.S. Dept. of Health, Education and Welfare, Divi-

sion of Program Statistics and Analysis, Character-

istics of Families Receiving AFDC, Nov.-Dec. 1961

(Apr. 1963) 45

U.S. Dept. of Health, Education, and Welfare, Guide-

lines for the Work Incentive Program (1969) -.......40, 42

U.S. Dept. of Labor, Work Incentive Program Hand-

book §412-H-K (1968) 40, 43

113 Cong. Rec. 23062 (1967) 59

113 Cong. Rec. 33560 (1967) 55

IN THE

Supreme Court of the United States

Ocroser Term, 1969

No. 131

Epmunv P. Danpringe, Jr., CHAIRMAN OF THE MARYLAND

State Boarp or Pusiic WELFARE, ET AL.,

Appellants,

—V.—

Linpa WILLIAMS, ET AL.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BRIEF OF AMICI CURIAE: THE CENTER ON SOCIAL

WELFARE POLICY AND LAW, NATIONAL WELFARE

RIGHTS ORGANIZATION, ASSOCIATED CATHOLIC

CHARITIES, INCORPORATED, AND SEVEN NEIGH-

BORHOOD LEGAL SERVICES OFFICES NOW PROSE-

CUTING SIMILAR CASES

Interest of Amici Curiae*

The Center on Social Welfare Policy and Law is the

specialized welfare law resource of the Legal Services

Program of the Office of Economie Opportunity. Affiliated

*Letters from appellants and appellees consenting to the sub-

mission of this brief amici curiae have been filed with the Clerk.

with the Columbia University School of Law, the Center

undertakes research pertaining to the legal rights of wel.

fare recipients and supports OEO-funded legal services

programs and other legal organizations through education

and assistance in the preparation of important litigation.

In this capacity the Center has rendered substantial as.

sistance in most of the cases challenging maximum grants

in public assistance. The Center has also appeared before

this Court in two arguments this term (Goldberg v. Kelly,

No. 62, and Rosado v. Wyman, No. 540) and has submitted

briefs amicus curiae in King v. Smith, 392 U.S. 309 (1968),

Shapiro v. Thompson, 394 U.S. 618 (1969), Simmons vy.

Housing Authority of West Haven, O.T. 1969, No. 8&1;

Boddie v. Connecticut, O.T. 1969, No. 265; Sanks v. Geor-

gia, O.T. 1969, No. 266; and Wheeler v. Montgomery, 0.T.

1969, No. 14. The Center also maintains the nation’s only

comprehensive private collection of state public assistance

regulations and manuals. The Center, together with the

federally funded legal services programs throughout the

nation, has a vital interest in presenting to this Court

the full range of issues raised and rules affected by this

case.

The National Welfare Rights Organization was formed

in 1967 by recipients of public assistance to enable them to

learn of their rights and entitlements and to organize and

teach individuals in need of financial assistance how to

secure public assistance benefits. The membership of the

National Welfare Rights Organization includes more than

30,000 households organized in 200 affiliated groups in

70 communities in 37 states. Since many of its members

receive far less than the amounts their state departments

of welfare have determined are necessary for minimal

subsistence, often as the result of the imposition of grant

maximums, the organization has devoted much of its ener-

gies and resources to the abolition of arbitrary restrictions

on grant amounts.

Associated Catholic Charities, Incorporated is a private

charitable organization that provides counseling and other

services, as well as limited material aid, to many of the

poor people in the City of Baltimore who lack the basic ne-

cessities of life. Catholic Charities has insufficient funds,

however, to meet the dire needs of all those individuals

and families who seek its assistance. It is particularly

concerned about that group of the poorest of the poor

families, iarge families with little or no income. It thus

has a vital interest in apprising this Court of the manifest

injustices resulting from the State of Maryland’s imposi-

tion of a maximum AFDC grant applying regardless of

family size.

The legal services offices that appear as amici curiae

have represented plaintiffs in the actions other than this

case in which grant maximums have been declared uncon-

stitutional by various three-judge district courts, or are

representing plaintiffs in actions currently pending in

three-judge district courts in which the validity of grant

maximums are being challenged, as follows: Pine Tree

Legal Assistance, Inc. (Portland, Maine)—Westberry v.

Fisher, 297 F. Supp. 1109 (D. Me., S.D. 1969); Legal Aid

Society of the Pima County Bar Association (Tucson,

Arizona)—Dews v. Henry, 297 F. Supp. 587 (D. Ariz.

1969) ; Seattle Legal Services Center (Seattle, Washing-

ton)—Lindsey v. Smith, —— F. Supp. —— (Civ. No. 7636,

W.D. Wash., opinion filed Aug. 20, 1969); Neighborhood

Legal Assistance Foundation (San Francisco, California)

—Kaiser v. Montgomery, —— F. Supp. —— (Civ. No.

49613, N.D. Cal., opinion filed Aug. 28, 1969); Legal Aid

Society of Charleston (Charleston, West Virginia)—

Powers v. Vincent, Civ. No. 68-170, S.D. W.Va.; Legal Aid

Society of Albuquerque (Albuquerque, New Mexico)—

Salazar v. Goodwin, Civ. No. 8027, D. N.Mex.; Atlanta

Legal Aid Society, together with Michael A. Doyle, Esq.

(Atlanta, Georgia)—Thomas v. Burson, Civ. No. 2381, M.D.

Ga. These offices are directly and vitally concerned with

the decision of this Court, which will determine the right

of their clients and the class they represent to receive an

amount of public assistance not limited by the application

of an arbitrary grant maximum.

Statement of the Case

Every state in the union provides financial assistance to

needy dependent children under the Aid to Families with

Dependent Children (AFDC) program.’ Through this pro-

gram, states distribute funds, the major portion of which

is obtained from federal grants-in-aid, pursuant to the

Social Security Act of 1935 for the purpose of:

1. “encouraging the care of dependent children in their

own homes . . . to help maintain and strengthen

family life,” and

2. “furnish[ing] financial assistance . . . to needy de-

pendent children and the parents or relatives with

whom they are living.” (The Social Security Act of

1935, §401, 42 U.S.C. §601.)

To receive aid, a child must satisfy three basic federal re-

quirements. The child must be: (1) needy, (2) “deprived of

1 See King v. Smith, 392 U.S. 309, 311 (1968).

parental support or care by reason of the death, continued

absence from the home, or physical or mental incapacity of

a parent” and (3) living with a parent or other statutorily

specified relative. 42 U.S.C. 4606. In addition, the child

must satisfy any state-imposed eligibility condition con-

sistent with the Social Security Act and the United States

Constitution.

The state determines the amount of assistance payable

to a child by first determining need, that is, the type and

quantity of goods and services minimally necessary for

subsistence and the amounts of money required to pur-

chase such goods and services.? (For example, appellants

determined need for Mrs. Williams and her eight children

as being $296.15 per month and that for Mr. and Mrs.

Gary and their eight children as being $331.50.) From

need, the state subtracts available resources, such as earned

income, savings, and Social Security benefits, to determine

the recipient’s “budgetary deficit.” (Neither appellee family

possessed such resources.) To supply a child or family with

the basic wherewithal necessary for subsistence, a state

would have to grant an amount equal to this budgetary

deficit. However, many states do not meet the full budget-

ary deficit, leaving families with less than the state’s con-

servative, often penurious, estimate of the minimum amount

needed for subsistence. Twenty-three states currently im-

pose various types of maximums limiting public assistance

to some fraction of the state-determined budgetary deficit.*

There are two principal types of such maximums: indi-

vidual maximums and family maximums. States imposing

*Id., at 318-19, n. 14.

*See Appendix A for details of the maximum grant schedules

of all states imposing them.

individual maximums simply limit the assistance available

to any person or class of persons to a fixed amount. This

amount may be the same for all public assistance recipients

or it may vary with some characteristic of the individual,

as for example the number of children in his family. The

maximum may be expressed as a flat dollar amount (indi-

vidual maximum) or a percentage of the family’s budgetary

deficit (percentage reduction) or in both such ways.* Thus,

the state of Mississippi limits the amount of AFDC assist-

ance payable to $30 per month for the first child in any

family, $18 for the second, and $12 for the third, while

simultaneously limiting assistance to no more than 30 per

cent of a child’s budgetary deficit and paying the lesser

of the amounts indicated by these two limitations. Listed

in Table 1 below are the fixed-dollar individual maximums

imposed by the various states as of varying recent dates.’

TaBLeE 1—InprvipvaL Maxmmums

First Second Fifth

State Child Child Child

Arkansas $ 60 $ 10 $ 10

Delaware 75 12 10

Tennessee 48 16 16

*The percentage reduction device is in no rity Be issue in this

case. For details as to those states that impose both grant maxi-

mums and a percentage reduction, see National Center for Social

Statistics, Social and Rehabilitation Service, U.S. Dept. of Health,

Education, and Welfare, Report D-3 (Oct. 1968), Tables 2 and 3.

*See Appendix A, Tables 2 and 3 for further details and effec-

tive dates. Ten of the 17 states listed combine individual maxi-

mums with family maximums, see Table 2 infra, the effect of

which is to cut off payments before the tenth child is reached.

Wyoming 100

Individual maximums may or may not be imposed as to

all classes of public assistance recipients. Typically, they

are imposed with particular ferocity upon AFDC children.

Thus, the state of Mississippi pays 100 per cent of need

(subject to certain fixed-dollar maximums) to recipients

in the “adult categories” of public assistance, the aged

(OAA), the blind (AB) and the disabled (APTD), while

* Amount represents payment for first child and one adult; no

allocation given between adult and child.

*®Plus 20 per cent of unmet need.

paying 30 per cent of need to children. Similarly, the fixed-

dollar maximum applicable to the Mississippi adult cate-

gories is more than four times the fixed-dollar maximum

applicable to third and subsequent children.

The second principal type of maximum is the family

maximum challenged in this case, whereby a state limits the

amount of assistance available to a family to some fixed-

dollar figure, irrespective of the children’s or family’s state-

determined need or budgetary deficit. Because of the Mary-

land family maximum, appellees Gary and Williams, resi-

dents of Baltimore, received family grants of only $250 per

month despite the fact that the state determined their

budgetary deficits to be $296.15 and $331.50 respectively.‘

As is indicated in Table 2 below, family maximums are

in force in 16 states, 10 of which also impose individual

maximums."

TaBLE 2—F amity Maximums

State Family Maximum

Mississippi $108

Arkansas 120

Delaware 150

Tennessee 150

Georgia 164

West Virginia 165

*For families residing in Maryland outside the city of Balti-

more, the family maximum is per month.

*See Appendix A, Tables 1 and 2 for further details and effec-

tive dates.

State

Alabama

New Mexico

Arizona

Wyoming

Virginia

Maine

Maryland

Kentucky

Washington

Oklahoma

States differ in the methods by which they relate family

maximums to available resources.* Maryland subtracts

available resources’ from need, so that a family having a

state-determined need of $350-per month and outside in-

come of $100 per month would have its need fully met

through a combination of the $250 family-maximum grant

and $100 of earnings. Under the Arizona maximum litigated

in Dews v. Henry, 297 F. Supp. 587 (D. Ariz. 1969), on the

other hand, available resources were subtracted from the

$220 family maximum, not from need. 297 F. Supp. at 590.

*42 U.S.C. §602(a)(7) provides that in determining need the

state shall take other income and resources of the child or care-

taker fully into consideration. That provision does not, however,

reach the issue of how other income and resources are to be

treated vis-A-vis a maximum grant unrelated to need.

*In defining available resources, all states must disregard a

portion of all income under the federal work incentive program.

42 U.S.C. §§602(a) (8), 602(a) (19), and 634.

Thus the family in the example given above would receive

only $220 as a combination of the AFDC grant ($120) plus

income ($100) and would face an unmet need of $130

monthly.*°

Despite these variations in state maximum-grant pro-

visions, they have in common one basic distinction. Two

classes of AFDC recipients are created: those whose state-

determined needs are less than the relevant maximum and

those whose needs exceed that figure. Those recipients

whose needs do not exceed the maximum receive AFDC as-

sistance commensurate with their needs in conformity with

the central purpose of the AFDC program; those recipients

whose needs exceed the maximum receive a grant the

amount of which is fixed by the maximum and which con-

sequently fails to meet their need.”

10 A variation of this latter method is found in Westberry v.

Fisher, 297 F.Supp. 1109 (D. Me., S.D. 1969), in which the Maine

maximum grant of $250 was combined with a so-called maximum

budgeted need of $300. 297 F.Supp. at 1111-13. Income and

resources were subtracted from need unless need exceeded $300,

in which case they were subtracted from $300, payments in any

case not exceeding the maximum of $250. Thus in the example

given, subtracting income of $100 from the maximum budgeted

need of $300 would result in a grant of $200, leaving the family

with $50 of unmet monthly need.

1In general, the difference between the two classes of families

is one of size, although special needs such as medically mandated

diet requirements and school supplies play some part in increasing

a family’s level of need. Maryland bases its need determination on

a single standard for subsistence (food, clothing, household mainte-

nance, and household replacements) that varies by family size; a

shelter requirement based on rent actually paid within a schedule

of maximums differing by family size and geographical location;

separate requirement standards for children cared for by a relative

other than a parent; and special requirement standards, when ap-

propriate, covering special diet requirements, school supplies for

children attending school, laundry costs, and life insurance pre-

miums to provide for burial. State of Maryland, Manual of the

Department of Social Service, Rule 200-V.

Family maximums, in addition, impose another and more

egregiously unlawful distinction, namely, that between

children (and parents) in large families and those in smaller

families. In Maryland, a child born into a penurious single-

parent family will have his state-determined needs met in

full if no more than four siblings preceded him. For the

sixth and subsequent children in a single-parent family,

nothing is paid. Such a child the state wholly deprives of

benefits accorded children in smaller families. Of course it

is anticipated that such a child will share in the meager

amounts provided for his older brothers and sisters and his

mother or other caretaker relative. The effect of his

deprivation may thus be thought of as diffused among all

members of his family, thus expanding the class of those

disadvantaged by the state of Maryland’s distinction to all

members, child and adult, of the larger family. Taking this

more expanded view of the disadvantaged class sharply

narrows the difference between family maximums and in-

dividual maximums such as Mississippi’s (under which the

first child receives a maximum of $30 per month and the

third and subsequent children receive $12), at least where

the difference bears no relation to the economies of larger

families.’

Subclasses are even formed within the class of children

in those families subject to the maximum grant. Such

children receive per-capita grants the amount of which

is based solely on the number in the family. Thus a child

in a family of eight receives 50 per cent more than a child

* Indeed, in Ward v. Winstead, now pending in the Northern

District of Mississippi (Civ. No. GC 6829-K), the state has asked

the court to ony adjudication because the Court’s decision in

this case will be di itive.

in a family of 12, and in neither case is the size of the grant

based on need.’

The balance of this brief is devoted to an analysis of the

discriminatory deprivation worked by this distinction be.

tween recipients in large families and recipients in smaller

families and to an ultimately futile search for some jus-

tification for this apparently discriminatory distinction. In

the end, it is devoted to an explanation of why family maxi-

mums have been declared unconstitutional by every court,

state and federal, that has considered the question. See Wil-

liams v. Dandridge, 297 F. Supp. 450 (D. Md. 1968, 1969);

Dews v. Henry, 297 F. Supp. 587 (D. Ariz. 1969); West.

berry v. Fisher, 297 F. Supp. 1109 (D. Me. 1969) ; Lindsey

v. Smith, —— F. Supp. —— (Civ. No. 7636, W.D. Wash.

1969) ; Collins v. Board of Social Welfare, 248 Iowa 369,

81 N.W.2d 4 (1957). See also Kaiser v. Montgomery, —

F. Supp. —— (Civ. No. 49613, N.D. Cal. 1969), enjoining

application of California’s individual maximums.

Summary of Argument

The Maryland regulation establishing a ceiling on the

size of the grant any family may receive under the fed-

erally funded Aid to Families with Dependent Children

(AFDC) program creates two classes of recipient families:

Those families whose state-determined needs do not exceed

7#e Parents with a sufficient number of children to be affected by

the grant maximum receive aid the amount of which is based solely

on the number of their children, decreasing in amount as children

increase in number, rather than being based on need. This result

infringes not only on their right to the equal protection of the laws,

but also on their exercise of constitutionally protected activity, see

p. 48, infra.

the maximum receive a grant commensurate with their

needs, while those families whose needs exceed the maxi-

mum receive a grant the amount of which is below, and

bears no relation to, their needs. The difference between

the two classes of families is in general one of size, with

larger families comprising the disadvantaged class.

The classification thus created denies the equal protec-

tion of the laws to members of the disadvantaged class in

that the classification bears no relation to, but is subversive

of, the dual purposes of Title IV of the Social Security Act:

fulfilling the financial needs of needy dependent children

and their caretakers and promoting the care of such chil-

dren in the family home. As to the former, the grant maxi-

mum ignores a significant portion of the needs of those

families affected by it; as to the latter, the grant maximum

encourages the placement of children outside the family

home and in the custody of a relative eligible to receive

benefits on their behalf unaffected by the maximum.

The grant maximum and the classification it creates war-

rants the strict scrutiny of this Court for a number of rea-

sons: the classification affects appellees’ ability to obtain

the fundamental necessities of existence; it reaches a class

characterized by political powerlessness ; it undermines the

integrity of the basic family unit; and it creates a class of

children based on a status over which they have no control.

The various state interests proffered as justifying the

imposition of a grant maximum fail to save the challenged

dassification from invalidity under the Equal Protection

Clause. They are but tenuously related to the composition

of the disadvantaged class; they ignore and subvert the

intent of Congress as to how these interests are to be at-

tained ; they are constitutionally impermissible.

Finally, the imposition of a grant maximum violates

the congressional mandate that aid be furnished to all indi.

viduals eligible under the Social Security Act. The maxi-

mum can be seen as denying aid outright to certain mem.

bers of eligible families or as conditioning the scope of

eligibility on the size of the recipient family, in either

case in violation of the Social Security Act.

Imposition of the family maximum denies appellees

the equal protection to which they are entitled under

the Fourteenth Amendment.

A. The family maximum divides public assistance

recipients into two classes and imposes depriva-

tions on those children in larger families.

Appellees’ basic contention, accepted by each of the five

lower courts that have passed on the question, is that the

family maximum violates the Equal Protection Clause of

the Fourteenth Amendment because that maximum divides

AFDC recipients into two classes and imposes depriva-

tions on one of those two classes that lack rational relation

to, and indeed frustrate attainment of, the central purposes

of the Social Security Act, namely, the assistance of needy

children and the preservation of the family unit.

In Maryland, any child born into a wholly penurious

single-parent family already having five or more children

will be denied assistance altogether. If one takes account

of the fact that the $250 paid to such a family will be

shared among its members, all members of such a family

are denied assistance commensurate with their needs. Such

deprivation is visited upon recipients falling within this

—_— aa ae

class, while assistance commensurate with state-determined

needs is afforded others, because of the fact that the dis-

favored recipients live in larger families.“ It is this dis-

tinction that appellees argue is without rational foundation.

B. The Equal Protection Clause requiree a rational

justification for the deprivation imposed by the

family maximum.

To fulfill the constitutional command that “no State...

shall deny to any person within its jurisdiction the equal

protection of the laws,” a state-imposed classification must

“rest upon some difference which bears a reasonable and

just relation to the act in respect to which the classification

is proposed.” Gulf, Colorado & Santa Fe Ry. v. Ellis, 165

U.S. 150, 155 (1896). It “must be reasonable, not arbitrary,

and must rest upon some ground of difference having a

fair and substantial relation to the object of the legislation,

so that all persons similarly circumstanced shall be treated

alike.” F. S. Royster Guano Co. v. Virginia, 253 U.S. 412,

415 (1920). ;

This assurance of even-handed treatment reaches all gov-

ernmental action, whether it be to impose limitations on in-

dividual conduct or to distribute public benefits. The no-

tion that public benefits are “absolutely discretionary” and

that therefore there “is no judicial review of the manner in

which that discretion is exercised” (Smith v. Board of Com-

missioners of the District of Columbia, 259 F. Supp. 423, 424

(D.D.C. 1966) ) has been thoroughly and finally repudiated.

The protections of the Equal Protection Clause have been

| applied to shield public assistance recipients against the

“Or possibly because their needs are extraordinary, see note 11,

mepra.

imposition of: (1) durational residence restrictions,

Shapiro v. Thompson, 394 U.S. 618 (1969); (2) the substi.

tute-father rule, which deprived children of benefits be.

cause of their mothers’ relationships, Smith v. King, 27

F. Supp. 31 (D. Ala. 1967), aff'd on other grounds, 39

U.S. 309 (1968) ; (3) denial to working mothers of benefits

allowed to mothers with like unearned income, Anderson

v. Burson, 300 F. Supp. 401 (N.D. Ga. 1968) ; (4) arbitrary

variations in benefit levels between different areas within

a state, Rothstein v. Wyman, 303 F. Supp. 339 (S.D.N.Y,

1969); and (5) the family maximum involved in this case

and the related individual maximums involved in Kaiser

v. Montgomery, supra.

C. A searching appraisal of the family maximum is required

because of the fundamental importance of public assis

ance, the powerlessness of AFDC children, the effect of the

maximum on the maintenance of an intact family unit

and the classification of children based on parental conduct

over which they have no control,

1. The challenged classification affects the availability of

the fundamental rudiments of human existence.

Not only is it clear that the benefits of the Equal

Protection Clause are applicable to the receipt of public

assistance benefits; in recent months it has become clear

that governmental decisions affecting public assistance

benefits fall in that class of cases calling for the most

searching judicial appraisal. It has long been recognized

that standards of judicial review vary depending on the

situation involved and the interests, public and private,

implied. See Developments in the Law—Equal Protection,

82 Harv. L. Rev. 1065 (1969) ; Baxtrom v. Herald, 383 US.

107 (1966) (jury trial); Cox v. Louisiana, 379 U.S. 536

(1965) (speech and assembly); Carrington v. Rash, 380

U.S. 89 (1965), and Harper v. Virginia Bd. of Elections,

$83 U.S. 668 (1966) (voting); and Shapiro v. Thompson,

supra (interstate travel). It could scarcely be otherwise.

The judiciary cannot discharge the responsibilities as-

signed to it by the Constitution by treating alike the allo-

cation of subsistence rations and the licensing of pleasure

poats. Recognizing the judiciary’s peculiar responsibilities

in dealing with decisions affecting an individual’s basic

livelihood, a three-judge district court in the Southern Dis-

trict of New York has stated:

“Tt can hardly be doubted that the subsistence level of

our indigent and unemployable aged, blind and dis-

abled involves a more crucial aspect of life and liberty

than the right to operate a business on Sunday or to

extract gas from subsoil. We believe that with the

stakes so high in terms of human misery the equal

protection standard to be applied should be stricter

than that used upon review of commercial legislation

and more nearly approximate that applied to laws

affecting fundamental constitutional rights. Poverty is

a bitter enough brew. It should not be made even less

palatable by the addition of unjustifiable inequalities

or discriminations. It must not be forgotten that in

most cases public assistance represents the last re-

source of those bereft of any alternative.” Rothstein

v. Wyman, 303 F. Supp. 339, 347 (S.D.N.Y. 1969).

To similar effect is the court’s analysis in Kelly v. Wyman,

2% F. Supp. 893 (S.D.N.Y. 1968), prob. juris. noted sub

som. Goldberg v. Kelly, 394 U.S. 970 (1969):

“Suffice it to say that to cut off a welfare recipient in

the face of this kind of ‘brutal need’ without a prior

hearing of some sort is unconscionable, unless over.

whelming considerations justify it.” Id. at 900 (foot.

note omitted).

Appellees’ right to the most searching judicial protection

of their entitlement to even-handed allocation of public

assistance benefits is based quite simply on the elemental

importance of these benefits to them and of their conse.

quent status as fundamental human rights. This Court

has recognized the right to procreate as “one of the basic

civil rights of man” for the obvious reason that “[m]arriage

and procreation are fundamental to the very existence

and survival of the race.” Skinner v. Oklahoma, 316 US.

535, 541 (1942). Consequently, “strict scrutiny of the

classification which a State makes in a sterilization law is

essential.” Id. Similarly, this Court has dealt with “rights

[that] involve the intimate, familial relationship between

a child and his own mother” by noting that “we have been

extremely sensitive when it comes to basic civil rights ...

and have not hesitated to strike down an invidious classifi-

cation even though it had history and tradition on its side.”

Levy v. Louisiana, 391 U.S. 68, 71 (1968).

More even than marriage and procreation, the ability

to obtain food, clothing, and shelter is “fundamental to

the very existence and survival of the race,” Skinner, supra.

It is clear beyond peradventure that the interests at stake

in this action and the decision of this Court involve the

basic rudiments of human existence. The maximum grant

provides families with less than the amount necessary to

purchase minimally adequate food, clothing, shelter, and

utilities.

adi can te a a, te ee ee ee le eee ee ee: a ae ae

The Social Security Administration poverty index, con-

sidered by all experts to be the very lowest amount with

which a family can provide for itself, sets forth $5,090

as the income level for a nonfarm family of seven below

which such a family is considered poor. Orshansky, Count-

ing the Poor: Another Look at the Poverty Profile, in

Poverty in America 67, 75 (Ferman, Kornbluh, and Haber,

eds. 1968). (This is the familiar index setting forth a

poverty line of $3,130 for a nonfarm family of four.)

That income level is based on food prices as of January

1964; if appropriate adjustment is made for the increase

in the consumer price index for food between January 1964

and September 1969, Economic Indicators, September

1969 at 26, the poverty level for a family of seven becomes

$6,159. In contrast, the annual AFDC payments to fam-

ilies of seven (one parent and six children) under grant

maximums in effect in the following States are: Maryland

—$3,000; Alabama—$2,040; Utah—$2,952; Mississippi—

$1,296; Arizona—$2,640; Georgia—$1,968; Wyoming—

$2,680.

That the Court here deals with fundamental human rights

emerges even more clearly if the abstraction of the family

maximum is translated into the realities of appellee Wil-

liams’ life :

“After payment of her monthly rent, and the cost for

heating her home with coal, she has less than $175 per

“For criticism of the index see Speth, Cotton, Bell, Mindus,

4 Model Negative Income Tax Statute, 78 Yale L.J. 269, 298

(1968) ; Friedman, The Official Estimates Are Wrong, in Poverty

American Style 106, 109 (Miller, ed. 1966); Bureau of Social

Seienece Research, Inc., Living Costs and Welfare Payments 34-36

(1969) ; The President’s Commission on Income Maintenance Pro-

gams, Poverty Amid Plenty: The American Paradox 29-33

(mimeo Nov. 12, 1969).

month to feed and clothe her family [of eight children],

and to provide them with the other necessities of life,

She is constantly forced to buy clothes and shoes for

her children on credit, and she is already in serious

debt. Most of her children need shoes right now, and

they sometimes stay home from school, especially in

the wintertime, because they do not have the necessary

clothes to wear.” Stipulation of Facts, Appendix at 72.

As to appellees Junius and Jeanette Gary and their eight

children :

“After paying the monthly rent of $75 and the gas and

electricity bill, Mr. Gary has less than $150 to feed

and clothe his family and to provide them with all the

other necessities for the month. All of his children

are in school and are constantly in need of clothes and

shoes and money for other kinds of supplies. His gas

and electricity is sometimes shut off, because he is

unable to pay the bill. He is forced to buy clothing

and shoes for his children on credit and he is constantly

in debt as a result. Most of his children need shoes

and clothing now and sometimes they have to stay

home from school.” Stipulation of Facts, Appendix

at 74.

A Secretary of Health, Education, and Welfare testified

earlier this year that:

“T would make a categorical statement, although I have

not counted them, that the overwhelming proportion

of those 8 million people who are on welfare are mal-

nourished. I can’t come to any other conclusion after

looking at how much money they get every month.

I don’t see how those mothers can buy adequate milk

and food for those children even if they had the knowl-

edge for it.” Testimony of Secretary Wilbur J. Cohen,

Hearings before the Senate Select Comm. on Nutrition

and Human Needs, 90th Cong., 2d Sess., part 2, at 356

(1969) .***

2. Those subject to the deprivation created by the family

maximum comprise a politically impotent class requir-

ing this Court’s special protection.

Not only are appellees entitled to the Court’s most ex-

acting protection because of the character of the interest

affected; such protection is also called forth “by the de-

fenseless and disadvantaged state of the class of citizens

[involved], who are usually less able than others to enforce

their rights.” Rothstein v. Wyman, 303 F. Supp. at 347.

As this Court has recognized,

“prejudice against discrete and insular minorities may

be a special condition, which tends seriously to curtail

the operation of those political processes ordinarily

to be relied upon to protect minorities, and which may

call for a correspondingly more searching judicial

scrutiny.” United States v. Carolene Products, 304

U.S. 144, 153, n. 4 (1938).

«The Maryland State Department of Social Services has itself

reported the conclusion “that Baltimore has the unenviable dis-

tinction of being among the leading locales in the country in

malnutrition (of children).” Maryland State Department of So-

cial Service, Profile of Caseloads, Research Report No. 5 at 8

(1969). For more general information on malnutrition among

welfare recipients, see Hearings, supra, at 614-15; Citizens’ Board

of Inquiry into Hunger and Malnutrition in the United States,

Hunger, U.S.A. 28, 72 (1968) ; LeBeaux, Life on A.D.C.: Budgets

of Despair, in Poverty in America 519, 523-26 (Ferman, Korn-

bluh, and Haber, eds. 1968).

99.

A class comprising the poorest of the poor, consisting pri-

marily of children, frequently stigmatized by race and

illegitimacy in addition to their poverty, clearly qualifies

as such a discrete and insular minority:

“More than any other segment of society, the very

lowest economic stratum is socially isolated. The poor

man not only fails to comprehend society or his com-

munity, he is out of touch with it. He reads fewer

newspapers, hears fewer news programs, joins fewer

organizations, and knows less of the current life of

either the community or the larger world than more

prosperous, better educated people do.” U.S. Dept. of

Health, Education and Welfare, Welfare Administra-

tion, Division of Research, Low-Income Life Styles 45

(1968).

As Michael Harrington concluded in his classic study, “the

poor are politically invisible.” Harrington, The Other

America 13 (1962).**

The welfare poor are if anything even more isolated from

the social and political life of the large community than are

the poor as a whole:

18“'T}he poor and racial minorities . . . are not always assured

a full and fair hearing through the ordinary political processes, not

so much because of the chance of outright bias, but because of the

abiding danger that the power structure may incline to pay little

heed to even the deserving interests of a politically voiceless and

invisible minority. These considerations impel a closer judicial sur-

veillance and review of administrative judgments adversely affect-

ing racial minorities, and the poor, than would otherwise be neces-

sary.” Hobson v. Hansen, 269 F. Supp. 401, 507-08 (D.D.C. 1967),

aff'd sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969).

“[T]here are important differences between the very

poor who manage to maintain themselves without pub-

lic assistance and those who do not have the resources

to achieve even a minimum level of economic indepen-

dence. For example, negative public attitudes towards

mothers who are dependent on AFDC tend to transfer

to the mothers and their children, with an associated

sense of failure, strong self-disparagement and hope-

lessness.” U.S. Dept. of Health, Education and Wel-

fare, Welfare Administration, Division of Research,

Growing Up Poor 7 (1966).

And the most powerless of the poor, lacking even theo-

retical access to the political process through the franchise,

are the children whose livelihood is here at issue:

“fO]f all groups among the poor it is children who have

been most neglected and most shabbily treated by cur-

rent social policies, despite the fact that of all popula-

tion groups they are the most vulnerable.” Burns,

Childhood Poverty and the Children’s Allowance, in

Children’s Allowances and the Economic Welfare of

Children 3 (Burns, ed. 1968).

3. The challenged classification interferes with the

maintenance of an intact family unit.

By refusing to recognize the needs of families with large

numbers of children unless some of the children are re-

moved from the parental home, the Maryland grant maxi-

mum and its counterparts in other states undermine the

fundamental right of certain relatively intact families to

remain intact. “In effect, Maryland impermissibly condi-

tions . . . eligibility for benefits upon the relinquishment

of the parent-child relationship.” Williams v. Dandridge

297 F.Supp. at 459.** Such a result furnishes an additional

reason for this Court to subject the classifications createj

by the challenged regulation to the closest possible judicial

scrutiny.

This Court has long recognized the fundamental right of

a parent to bring up his children: Meyer v. Nebraska, 2}

U.S. 390, 399 (1923) (“liberty” in the Fourteenth Amend.

ment’s Due Process Clause “denotes not merely freedom

from bodily restraint but also the right of the individual

to contract, to acquire useful knowledge, to marry, estab.

lish a home, and bring up children ...”); Pierce v. Society

of Sisters, 268 U.S. 510 (1925); Prince v. Massachusetts,

321 U.S. 158, 166 (1944) (“It is cardinal with us that the

custody, care and nurture of the child reside first in the

parents, whose primary function and freedom include

preparations for obligations the state can neither supply

nor hinder.”); Poe v. Ullman, 367 U.S. 497, 543, 551-52

(1961) (Harlan, J., dissent) (the home is “the seat of family

life. And the integrity of that life is something so funda-

mental that it has been found to draw to its protection the

principles of more than one explicitly granted Constitv-

tional right.” The integrity of the family unit is one of

those interests that “require particularly careful scrutiny

of the state needs asserted to justify their abridgment.”);

Griswold v. Connecticut, 381 U.S. 479, 482-84 (1965) ; and

Ginsberg v. New York, 390 U.S. 629, 639 (1968), reh. den.

391 U.S. 971.

Family integrity has been protected not only against

gross forms of state intervention, but also against state

16 See also Dews v. Henry, 297 F. Supp. at 592.

action that erodes this “basic civil right” of the “intimate

family relationship,” through the denial of benefits or op-

portunities on a discriminatory basis. In Levy v. Louisiana,

supra, this Court invalidated a state statute that had been

construed to deny wrongful death benefits to illegitimate

children; in Loving v. Virginia, 388 U.S. 1, 12 (1967), this

Court struck down a racial barrier to marriage, “one of

the basic civil rights of man.” Since Maryland and 22

other states in constructing their AFDC grant levels have

sought to induce family separation and penalize mainte-

nance of the integrity of the family unit, the justifications

for such actions must undergo the most rigorous scrutiny.

4. The family maximum creates classifications of children

based on conduct of their parents over which they

have no control.

The effect of an AFDC grant maximum is to penalize

certain needy dependent children not because of any con-

duct of their own, but because of their status as members

of a large family. Classifications embodying discrimina-

tions based on personal characteristics over which an indi-

vidual has no control—such as race,” alienage,”* indigence,”

and, most recently, illegitimacy*—have been regarded by

this Court as inherently suspect and as calling forth “the

most rigid scrutiny.” Korematsu v. United States, 323

US. 214, 216 (1944).

"Eg., Monroe v. Bd. of Commissioners, 391 U.S. 450 (1968) ;

McLaughlin v. Florida, 379 U.S. 184 (1964); Brown v. Bd. of

Education, 347 U.S. 483 (1954).

* Eg., Oyama v. California, 332 U.S. 633 (1948).

“Eg., Harper v. Virginia Bd. of Elections, supra; Douglas v.

ro a 372 U.S. 353 (1963); Griffin v. Illinois, 351 U.S. 12

* Levy v. Louisiana, supra.

In the context of the statutory right to recover for the

wrongful death of a parent, this Court has concluded that

“jt is invidious to discriminate against [illegitimate chil.

dren] when no action, conduct or demeanor of theirs is

possibly relevant to the harm that was done the mother,”

Levy v. Louisiana, 391 U.S. at 72 (footnotes omitted). The

same rationale must apply to the statutory right to receive

AFDC assistance: It is invidious to discriminate against

certain innocent children “when no action, conduct or de.

meanor of theirs is possibly relevant” to their need. It is

particularly invidious in light of the fact that “protection

of such [dependent] children is the paramount goal of

AFDC.” King v. Smith, 392 U.S. at 325.”

Because this Court is here concerned with “the last re.

source of those bereft of any alternative,” Rothstein y.

Wyman, 303 F. Supp. at 347, because those who receive

that resource are among the most politically impotent mem-

bers of our society, because the right to maintain an intact

family is being threatened or penalized, and because chil-

dren are being burdened for reasons over which they have

no control, the “cruelties and anomalies” that appellants

admit result from imposition of a maximum grant (Brief

for Appellants at 37) must be subjected to the most search-

ing possible judicial examination. Such an inquiry, even

considering the proffered justifications for the challenged

classification, must inevitably iead to the conclusion that

appellees and the class they represent are being denied the

equal protection of the laws.

21 “The present scheme penalizes some recipients but not others on

the basis of circumstances which are beyond the control of the

recipients and have no rational relationship to the purpose of the

AFDC program.” Kaiser v. Montgomery, unreported opinion at 7.

D. Limiting public assistance by imposition of the fan.ily

maximum denies appellees equal protection.

Whether tested by the criteria generally applicable under

the Equal Protection Clause or the more stringent criteria

that amici urge are appropriate, the imposition of family

maximums denies those disadvantaged by it the equal pro-

tection of the laws guaranteed them by the Fourteenth

Amendment.

The dual purposes of Title IV of the Social Security

Act of 1935, as amended, 42 U.S.C. §§601-644 (1968)** and

of the various state implementing statutes,” are distinct

but complementary: assuring the basic necessities of life

to needy dependent children and their caretakers and

“For the purpose of encouraging the care of dependent children

in their own homes or in the homes of relatives by enabling each

State to furnish financial assistance and rehabilitation and other

services, as far as practicable under the conditions in such State, to

needy dependent children and the parents or relatives with whom

they are living to help maintain and strengthen family life and to

help such parents or relatives to attain or retain capability for

the maximum self-support and personal independence consistent

with the maintenance of continuing parental care and protection

...” Social Security Act §401, 42 U.S.C. §601.

* The Maryland statute, closely paralleling the federal Act, sets

forth the purpose of AFDC as being

“the strengthening of family life through services and financial

aid, whereby families may be assisted to maximum self-support

in homes meeting the requirements for child care established by

law in this State.” Ann. Code of Md., Art. 88A, §44A.

The statute goes on to provide that

“The amount of assistance which shall be granted for any de-

pendent child . . . shall be sufficient, when added to all other

income and support available to the child, to provide such child

with a reasonable subsistence compatible with decency and

health.” Ann. Code of Md., Art. 88A, §49.

Other statutes are similar. See, ¢.g., Maine R.S.A. §3741 (Supp.

1968-69) ; Cal. Welfare & Insts. Code §11205.

strengthening the family unit in which such children an

being raised.

Elaborate argument is hardy required to establish that

family maximums and the distinction they imply bear no

rational relation to the purpose of providing basic financial

protection to needy dependent children, which this Court

has recognized as “the paramount goal of AFDC.” King y,

Smith, 392 U.S. at 325. Nothing could be more obvious than

that a classification that results in fulfilling the needs of

some children and families while ignoring to a greater or

lesser extent the needs of other equally needy and equally

dependent children and families bears no relation to the

statutory purpose of aiding these children and their care

takers. Had one of the “excess” Williams or Gary children

been born into a smaller family, he would have received

assistance of $79 per month. Instead, he receives no public

assistance in his own right. Moreover, there is no sugges-

tion that such denial reflects a state’s determination that he

receives nothing because he is not in need. The very func.

tion of the family maximum is to limit public assistance

to an amount less than state-determined need. It would be

absurd to suggest that the evil of need and dependency

is “most felt” in small, rather than large, families, and

“Tf over 12 of age; $65 per month if six through twelve

years of age. Williams v. Dandridge, 297 F. Supp. at 453-54.

In the field of economic regulation, this Court has often been

tolerant of underinclusiveness in the coverage of regulatory statutes,

pet ition of the legitimacy of a legislative decision to attach an

experience shows it to be most felt,” Keokee Coke Co. v.

Fever 234 U.S. 224, 227 (1914) (emphasis supplied). See also,

, Williamson v. Lee Optical Co. 488, 289 (1055), Wee

Coast Hotel v. Parrish, US. $19, 400 (1987); Musort dom Ce

v. Martel, 222 U.S. 225, 235-36 (1911). Such cases are wholly in-

apposite when the state has assumed the obligation of fulfilling

is increasingly less severe as family size increases; yet small

families have their needs met while large families receive

amounts that are arbitrarily lower than their need and that

fall progressively further below such need as the size of

the family increases. The benefited class is thus “underin-

dlusive” by virtue of its failure to include all those similarly

situated with respect to the statutory purpose of aiding

needy dependent children,” a defect that establishes “a

prima facie violation of the equal protection requirement of

reasonable classification,” Tussman & tenBroek, The Equal

Protection of the Laws, 37 Calif. L. Rev. 341, 348 (1949).

The Georgia welfare regulation that denied aid to a

person employed full time regardless of his income but

provided assistance to needy persons employed part time

was found void for underinclusion by reasoning directly

applicable to the instant case:

“(T]he ... regulation . . . violates plaintiffs’ constitu-

tional rights established by the equal protection clause

of the Fourteenth Amendment to the Constitution in

that, although plaintiffs are as needy as other recipients

of assistance ..., the regulation operates to the finan-

the subsistence needs of the entire class of needy dependent chil-

a gees indeed, is required by federal law to extend assistance

to who meet the eligibility requirements of need and de-

pendency. 42 U.S.C. §602(a)(10) requires that “aid to families

with dependent children shall be furnished with reasonable prompt-

tes to all eligible individuals.” See King v. Smith, 392 U.S. at

ay which the provision is referred to as 42 U.S.C.

a °

_™Underinclusion has been defined as occurring “when a state

benefits or burdens persons in a manner that furthers a legitimate

purpose but does not confer this same benefit or place

same burden on others who are similarly situated.” Develop-

ments in the Law, supra, 82 Harv. L. Rev. at 1084.

cial disadvantage of plaintiffs on . . . a basis which

bears no reasonable relationship to plaintiffs’ finan.

cial needs and therefore to the purposes of the Social

Security Act.” Anderson v. Burson, 300 F. Supp. at

404.

In short, the family maximum creates a distinction be.

tween needy dependent children in small families and

equally needy dependent children in large families and de

prives children in the latter. lt thereby creates a dis.

crimination bearing no rational relation to the primary

purpose of the AFDC program: the relief of need among

all dependent children.

The maximum grant is equally subversive of the AFDC

program’s other principal goal: “to help maintain and

strengthen family life,” 42 U.S.C. §601. The rationale of

this statutory purpose has been expressed by the Depart-

ment of Heath, Education, and Welfare as follows:

“To live in the family to which he belongs is the founda-

tion of a child’s security. The public has an interest

and an obligation in sustaining the contribution which

parents and immediate family make to the development

of a child. Financial inability to meet a child’s needs,

therefore, should not be allowed to force a parent to

surrender responsibility for bringing up the child.

“The assumption underlying the aid to dependent

children program is that when a family circle is broken

or incomplete, or parents are handicapped by physical

or mental disability, the measure most conducive to the

child’s welfare is the strengthening of the home against

the financial impact of these lacks or losses and to give

his parent, or other relative, a chance to gain or re-

establish control over his affairs.” Handbook of Public

Assistance Administration, Part IV, §3401."

Far from strengthening family life, the maximum en-

courages family dissolution. Because eligibility for AFDC

is extended to a child living in the home of any one of a num-

ber of relatives other than his parents, 42 U.S.C. §606(a)

(1), the effect of the maximum can be avoided and a grant

based on need can be received if some of a family’s children

are removed from their original home and placed in the

home of an eligible relative. As illustrated in the opinion

of the court below:

“If Mrs. Williams were to place two of her children of

twelve years or over with relatives, each child so placed

would be eligible for assistance in the amount of $79.00

per month, and she and her six remaining children

would still be eligible to receive the maximum grant of

$250.00. If Mr. and Mrs. Gary were to place two of

their children between the ages of six and twelve with

relatives, each child so placed would be eligible for as-

sistance in the amount of $65.00 per month, and they

and their six children would still be eligible to receive

the maximum grant of $250.00.” Williams v. Dand-

ridge, 297 F. Supp. at 453-54.

"The following excerpt from the legislative history of the Social

Security Act bears out the Department’s interpretation of statu-

tory purpose :

“[I}t has long been recognized in this country that the best

provision that can be made for families of this description

[without a potential breadwinner] is public aid with respect

to dependent children in their own homes.” H.R. Rep. No. 615,

74th Cong., Ist Sess., at 10 (1935).

The pressure thus so obviously exerted upon the integrity

of the AFDC family trenches upon rights of constitutional

as well as statutory origin. The value placed upon the

maintenance and integrity of families by the Social Se

curity Act is but one reflection of the central position of

the family in our structure of values, a position protected

by Constitution as well as statute. Marriage and the family

are associations protected against governmental interfer.

ence by the First and Fourteenth Amendments. See, inter

alia, Skinner v. Oklahoma, supra; Pierce v. Society of Sis.

ters, supra; Griswold v. Connecticut, swpra. The right of

man to marry and have children is among the “basic civil

rights of man . . . fundamental to the very existence and

survival of the race.” Skinner v. Oklahoma, 316 U.S. at 541

The state may not unreasonably or arbitrarily interfere

with the integrity of the family. Even more clearly, the

state may not impose discriminatory regulations upon

family associations, exerting disintegrating pressures upon

those which the state, in its wisdom, deems too large. Cj.

Loving v. Virginia, supra; Sherbert v. Verner, 374 US.

398 (1963).

In sum, the imposition of a family maximum constitutes

a prima facie denial of equal protection because it deprives

children living in larger families of subsistence afforded

to similarly situated, equally needy children living in

smaller families. This distinction, based on the size of the

family unit, bears no rational relation to the principal

purposes of the AFDC program: (1) the relief of child-

hood need and (2) the strengthening of the family. Indeed,

the practice affirmatively frustrates the strengthening of

the family by forcing a mother to choose between sur-

rendering some of her children or depriving all of them.

This coercive pressure not only flaunts clearly enunciated

federal statutory policy; it also trenches upon the constitu-

tionally protected integrity of the family association by dis-

criminatorily exerting disintegrating pressures on larger

families.

E. The proffered siate interests fail to justify the

imposition of family maximums.

Amici now turn to coasideration of appellants’ justifica-

tions for the family maximum, in the following order of

increasing plausibility and decreasing acceptability: (1)

the family maximum is a work incentive, (2) the family

maximum discourages desertion, (3) the family maximum

is a birth-control measure, (4) the family maximum saves

funds, and (5) the family maximum is necessary to please

Maryland’s electorate. But first we pause for a few pre-

liminary comments on the nature of the justification re-

quired when a practice is challenged under the Equal Pro-

tection Clause. :

First, to justify a distinction, one must advert to legiti-

mate governmental policy considerations that justify dis-

parate treatment of the classes created by the distinction.

To say that there is a reason, other than pure disdain for

the disfavored class, for the disparate treatment is not

to justify the distinction. There is a reason, other than

simple group hatred, for most denials of equal protection.

What is required is a justification for the distinction, that

is, a difference between the classes that corresponds with,

that justifies the disparate treatment. To do this, the

dasses distinguished must have different objective char-

acteristics relevant to the policy being implemented. If the

reason advanced to justify imposition of disadvantage on

a class also applies to the class being favored, no justifica.

tion is afforded for the distinction. Similarly, if the reason

advanced to justify the imposition of disadvantage is ap.

plicable to only a small fraction of the disadvantaged class,

the line of demarcation between the favored and disfavored

classes is not justified, but rather some other line of dis.

tinction between the small fraction of the disadvantaged

class and whoever falls into the other class.

Second, the justification advanced must be the actual

policy pursued by the legislature or administration rather

than an afterthought displayed to mask an attempt at

invidious discrimination. If a state in fact seeks to dis.

criminate on a racial basis and disguises this attempt, a

court would not hesitate to strike down legislation upon

evidence of its true motivation. Particularly is this the

case where the later-discovered purpose is not attributed

to the legislature by direct evidence but only by inference

from the statute, and where the fit between the proffered

purpose and the actual effect of the statute is imperfect.

Third, the policy advanced must be legitimate. It must

be a policy that the state can constitutionally pursue. Thus

we cannot justify an apparently racially discriminatory

policy by invoking justifications that betray an effort to

suppress freedom of speech. In this case, one cannot advert

to a state policy that is inconsistent with the purposes of

the Social Security Act. In making funds available to the

states for public assistance purposes, the federal govern-

ment meant to attain certain purposes. In administering

public assistance, states must observe these policies.

1. Family maximums provide a work incentive.

Appellants place principal reliance on their argument

that the family maximum “provide[s] an incentive to em-

ployment not present in states not imposing maximums by

allowing recipients to retain earnings in excess of the

grant.” Brief for Appellants at 32. Appellants apparently

see a work incentive in the family maximum in that a

family a member of which earns $200 a month and has

state-determined needs of $350 a month in a state with

a maximum grant of $250 a month will be entitled to

keep $100 of the $200 earned, and thus the working member

has an incentive to work. What seems to have escaped ap-

pellants is that the incentive to which they refer derives not

from the imposition of the family maximum, but from the

fact that the recipient is permitted to retain funds in ex-

cess of the maximum. Thus in Dews v. Henry, supra, the

state of Arizona subtracts earnings from the family maxi-

mum, not from the level of need. More serious is the fact

that the same incentive can be achieved without reference

to the family maximum by permitting recipients to retain

some portion of their earnings over and above their need-

determined grant, which states must now do pursuant to

the Social Security Act.* In short, the incentive to work

that results from allowing a recipient to retain earnings

has nothing to do with the family maxiznum and hence can-

not serve as a justification for that practice. )

a. The work-incentive justification applies equally to

persons not affected by the family maximum.

The manner in which the family maximum does operate

to provide an incentive is by limiting the amount of as-

* See subpart c., infra.

sistance payable to a family to some level below subsistence,

Obviously if a person is confronted with the choice between

employment and receiving less than subsistence, incentive

to find employment will be greater than if his alternative is

some form of subsistence provision. But this incentive ef.

fect cannot serve to justify the family maximum, for it does

not explain why parents of large families should be sub-

jected to such coercion while those of smaller families are

exempt. Clearly the state has no grounds for pressuring

into employment adult members of large families while

not so pressuring persons in small families. As a justifica-

tion for the family maximum, the reason assigned is under-

inclusive. It does not distinguish between the classes in-

volved.

Nor can comparison between Maryland’s family maxi-

mum and some imaginary paradigm situation involving the

federal minimum level of wages serve to justify the family

maximum as a work-incentive device. Equalization of the

maximum payable in welfare benefits with such level would

serve no work-incentive purpose capable of serving as a

justification for the family maximum. First, the fact is that

on a national basis there is no such correspondence be-

tween family maximums and minimum wages. As is in-

dicated in Table 2, supra, family maximums range from

$108 per month in Mississippi to $353 per month in Okla-

homa. Second, the employment pattern typical of AFDC

recipients is not represented by the federal minimum-

wage paradigm, but is rather characterized by part-time

employment consonant with a mother’s domestic duties and

employment in fields such as domestic service and agricul-

ture, which are exempt from federal minimum-wage legis-

lation. Thus most employment opportunities produce a

level of income lower than that represented by full-time em-

ployment at the federal minimum wage. An effective deter-

rent to reliance on welfare benefits would therefore re-

quire benefit levels far lower than those equivalent to the

federal minimum wage.

b. The work-incentive justification is of relevance

to only a small portion of those persons subject

to the family maximum.

Not only is the work-incentive justification insufficient

because it applies as well to smaller families and so renders

the family-maximum category underinclusive; it also fails

because only a small portion of AFDC recipients are em-

ployable, free enough of domestic responsibilities to seek

employment, and have employment opportunities, thus ex-

posing the majority of large AFDC families to primitive

incentives to which they are unable to respond.

Indeed, Maryland acknowledges the unsuitability of most

AFDC mothers for work: ‘

“In the typical mother-headed family receiving AFDC,

the mother who is in the home is not working. About

7% of mothers are employed, but their earnings,

whether full-time or part-time are below assistance

standards so that the family remains eligible on finan-

cial need. About 15% of the remaining mothers are

physically or mentally incapacitated for employment,

and another 11% are noted as having no marketable

skills or employment is not available for the kind of

work they have done in the past. Fully one-third are

noted as being needed in the home full-time to take care

of infants or children with various problems such that

employment is not feasible if value is placed on child

care. The remaining one-third could be trained o

placed in the labor market to varying degrees if day

care needs were met.” Maryland Dept. of Social Ser.

vices, Profile of Caseloads, Research Report No. 5, at

6 (1969).

In part, as Maryland has recognized, unavailability for en.

ployment stems from the pressure of domestic duties:

“For the ADC mother, the proper care of children is

the primary consideration. Significant for this con.

sideration are those factors that clarify the availability

and adequacy of a plan for the care of children; the

ability of the mother to work and continue to be respon.

sible for the care of the child in his day by day living,

and the effect that the children’s ages, health, and

behavior have on the mother’s earning capacity. No

one decision is to be sought, but the regard for the

value of employment to an individual and the participa-

tion of the mother in determining her earning capacity

need to be part of each decision.

“An examination with the mother of the factors that

are pertinent in her situation will provide the basis for

the Department’s decision relative to resource in earn-

ing capacity. For some mothers, the size of the family

will be the factor that determines inability to give

*° “Moreover, the more children a woman has, the shorter her

work life will be, on the average, because of the recurring inter-

ruption to continuous work or because of extended withdrawal

from the labor force . . . [T]he birth of each additional child

further reduces the average work life expectancy by from 2 to 3

ee Perrella, “Women and the Labor Force,” Monthly Labor

eview (U.S. Dept. of Labor), Feb. 1968, p. 3.

children care and to work. For other mothers, the

living arrangement will be the factor that determines

whether or not there is a resource in earning capacity.”

State of Maryland, Manual of the Dept. of Public Wel-

fare §215.19 (superseded Nov. 1, 1968; emphasis in

the original).*°

In part, unavailability stems from the inferior educa-

tional and work experience of AFDC mothers:

“With regard to employability, about one-half of the

mothers had education up to the second year of high

school. Only 16% graduated from high school and the

remainder have only a grade school education of

various levels. Twenty-two percent of the mothers

never held employment before receiving assistance and

of the remainder, the vast majority were domestic

workers or unskilled workers in various manufacturing

or service industries. Where mothers had worked in the

past, the average time span ef last employment was

less than 2 years. Also for this group, it had been 2.8

years since they last held employment—just about

equal to the average length of time of receiving assist-

ance as noted above.” Profile of Caseloads at 6-7.

In part, the unemployment of AFDC mothers stems from

the lack of employment opportunities. As of May 1966 the

Maryland State Employment Service estimated that there

were 18,760 jobs available in the Baltimore area. At the

same time, there were 26,000 unemployed persons actively

weking employment. Appendix at 153.

“This provision has been superseded by regulations adopted

mder the WIN program, described in subpart c., infra.

In short, the family maximum cannot be justified as »

em;1o0yment incentive where only a minority of the person

affected by it are susceptible of responding to such m

incentive. The justification is too narrow for the catego

to be justified. Thus the work-incentive argument fails t

explain the classes created by the family maximum. It is

at once too broad and too narrow. It fails of congruene

with the distinction so completely as to cast doubt on its

relevance. As the court below put it,

“the evidence before us at the original trial was crystal-

clear that the only reason why the maximum grant

regulation was continued was financial, 1.e., that the

Governor and General Assembly of Maryland had

failed to appropriate sufficient funds to finance the

cost of AFDC... .” 297 F. Supp. at 467 (1968).

e. Congress has mandated highly selective work incentive:

and requirements inconsistent with and preemptive oj

work-incentive devices that coerce the employable and

unemployable alike,

A Work Incentive Program (WIN) for recipients of

AFDC, mandatory on all states, was included in the 1967

Amendments to the Social Security Act." The WIN provi-

sions, described in greater detail below, were supplemented

with a requirement that states furnish child-care services

for the children of those referred to employment or train-

ing** and with a requirement that states exempt part of

%: P.L. 90-248, 81 Stat. 821, 42 U.S.C. §§602(a) (15), (19), 630-

639 (Supp. ITI, 1969). See also U.S. Dept. of Labor, Work Incen-

_ tive Handbook (1968); U.S. Dept. of Health, Education, and

Welfare, Guidelines for the Work Incentive Program (1969); 4

C.F.R. §220.35, 34 Fed. Reg. 1357 (Jan. 28, 1969).

82 42 U.S.C. §602(a) (15) (B) (i).

i ee ee ee ee eT

the recipient’s earnings from consideration in computing

the amount of the family’s grant.** The intent of Congress

in enacting the WIN provisions was “[t]o ‘give greater

emphasis to getting appropriate members of families draw-

ing aid to families with dependent children (AFDC) pay-

ments into employment” ;* indeed, “certain classes of per-

sons for whom any referral would be inappropriate are

specifically enumerated.” ** Congress recognized that the

employment potential of AFDC recipients

“ean be realized only with careful planning and with

the development of appropriate training, educational,

child care, and related resources on the part of the

State and local welfare agency.” *

There are a number of critical respects in which the

operation of the WIN program differs from that of a grant

maximum as a work incentive. At the outset, those re-

ferred to the WIN program must be “appropriate” for

referral ;*" certain classes of individuals are specifically

42 U.S.C. §602(a) (8) (ii), 602(a) (19) (E) (ii), 634, This “work

incentive” differs from a grant maximum in that it rewards the

person who works with a total income above minimum subsis-

tence, as opposed to punishing nonworkers by paying only a frac-

tion of subsistence. It is true that persons receiving less than full

need as determined by the State of Maryland may retain earnings

without diminution of benefits. This was not the case in Arizona,

Dews v. Henry, 297 F.Supp. at 590, and was true only to the extent

of $50 in Maine. Westberry v. Fisher, 297 F.Supp. at 1113.

“H.R. Rep. No. 544, 90th Cong., Ist Sess. 3 (1967) (emphasis

added).

“H.R. Rep. No. 1030 (Conference Report), 90th Cong., Ist

Sess. 58 (1967).

“H.R. Rep. No. 544 at 97.

* 42 U.S.C. §602(a) (19) (A) (i), (ii), and (iii).

exempted from the referral provision™ and individual de.

terminations are to be made in all other cases. Unlike

the assumption, which underlies the grant maximum, that

a recipient will be able to find employment on his own,

the congressional apj%ach is to require the Secretary of

Labor to provide testing and counseling to all those ap.

propriate persons referred to the WIN program and to

determine whether they are suitable for regular employ-

ment, for institutional and work-experience training, or

for special work projects.” Participants are assured that

appropriate health and safety standards are followed at

the work or training project to which they are referred,

that prevailing wages will be paid, that working condi-

tions are reasonable, and that workmen’s compensation

protection is provided.* Participants whose relocation is

necessary to their permanent employability may, if they

wish, obtain assistance in relocating.“ Work or training

may be refused for good cause, and if refused without

good cause, intensive counseling is provided.*

Congress required administrative fairness at critical

stages of the referral process. First, an individual dis-

satisfied with the determination that he is appropriate for

referral has the right to an administrative hearing before

88 42 U.S.C. $608 (a) (19) (A) (iv): (vii). Among those exempted

are those suffering from illness or incapacity; those living remote

distances from any employment or training to which they could

be referred; and those whose continuous presence in the home is

required because of the illness or incapacity of another member

of | the household.

42 U.S.C. §633 (a).

# 42 U.S.C. §633(f).

* 42 U.S.C. §637.

*? 42 U.S.C. §602(a) (19) (F).

the state welfare agency.** Second, the Secretary of Labor

must provide a hearing to determine whether an individual

refused without good cause to accept employment or par-

ticipate in training.** Ail these provisions reflect a congres-

sional determination that providing a work incentive for

AFDC recipients is a complex matter, requiring a particu-

larized approach.

Like all other states, Maryland has adopted the neces-

sary enabling legislation*® and implementing regulations

for a full-fledged work incentive program. Maryland now

refers appropriate people for training, employment, or

special work projects, and terminates the aid of any adult

who after sixty days of counseling refuses to participate

without good cause. The state also allows the retention

of a substantial share of earnings for persons on AFDC.

The state has not sought repeal of the Work Incentive

Program, nor has it decided to forego federal funding so

that ii may operate a public assistance program free of

the Work Incentive Program.

“

Whatever its effect as a crude starvation incentive for

adult AF'DC recipients to seek employment, the primary

effect of a grant maximum is to penalize needy dependent

children. Congress has now determined that employment

of AFDC recipients must be dealt with through a combina-

tion of counseling, training, and positive cash rewards

rather than punishment of children. The WIN amend-

* H.E.W. Guidelines §42.

— U.S.C. §633(g) ; Work Incentive Program Handbook §412-

* Ann. Code of Md., Art. 88A, §17.

“State of Maryland, Manual of the Department of Social Ser-

vices, Rule 200-IX.

ments expressly proscribe denying public assistance to

children living with an adult who refuses to cooperate with

the employment procedures contemplated.*’ While such

an adult’s needs are not considered in computing the

amount of the grant (and that only after lengthy counsel-

ing), payments must be made on behalf of the rest of the

family. Maryland, on the other hand, seeks to justify its

denial of aid to children in large families as a measure

to force adults into employment. In so doing, it places the

family maximum, as a work-incentive program, in direct

conflict with the Social Security Act both by utilizing an

unselective, blindly overreaching deprivation to force em-

ployment out of employable and unemployable alike and

by using that very method—denial of aid to children—

that the Act proscribes. As this Court said in King vy.

Smith, 392 U.S. at 325:

“Congress has determined that immorality and illegiti-

macy should be dealt with through rehabilitative

measures rather than measures that punish dependent

children and that protection of such children is the

paramount goal of AFDC.”

So also here, Maryland may not punish children to pro-

vide employment incentives to their parents, most of whom

are not in a position to accept employment.

2. Family maximums deter desertion.

Appellants urge that family maximums are justifiable

because they deter desertion of families by their fathers;

that is, that a father contemplating desertion will be less

** 42 U.S.C. §602(a) (19) (F) ; 45 C.F.R. §220.35(a) (6), 34 Fed

Reg. 1357 (Jan. 28, 1969).

likely to do so if the consequence of desertion is utter

destitution for his family rather than a subsistence exist-

ence. The forces that allow a man to desert his family

or constrain him from doing so are exceedingly complex

and powerful. Whether the differential between a family

maximum grant and one commensurate with state-deter-

mined need plays a significant role in this highly charged

decision is dubious. Indeed, many if not most parents in

this situation are likely wholly unaware of the existence of

the family maximum. What little evidence is available indi-

cates that Maryland’s highly touted marital adhesive is of

negligible sticking power. States without family maxi-

mums report that 3.9 per cent to 35.7 per cent of their

AFDC clientele result from desertion, wh«reas states in-

voking the family maximum experience a desertion ratio

ranging from 8.3 per cent to 26.6 per cent.*

Apart from such demonstrable inefficacy, Maryland’s

desertion-deterrence rationale is afflicted with the same

deficiencies as its work-incentive rationale. If grants below

subsistence deter desertion, why are comparable limitations

not imposed upon smaller families? Surely the state can-

not credibly profess disinterest in desertion of smaller

families. Conversely, why subject AFDC families where

the father is dead or disabled to the desertion disincentive?

To them, the “deterrence” is cruelly irrelevant. Thus as

with Maryland’s work-incentive argument, the state seeks

to justify the family maximum by adverting to policy

justifications that call for like treatment of smaller families

and are of relevance to only ea fraction of those disfavored

“US. Dept. of Health, Education, and Welfare, Division of

Program Statistics and Analysis, Characteristics of Families Re-

ceiving AFDC, Nov.-Dec. 1961, Table 12 (Apr. 1963).

by the policy. The policy fails to justify because it implies

restrictions broader and narrower than the class to which

the family maximum applies.

Also like Maryland’s work-incentive rationale, the deser.

tion-deterrence theory suffers from the defect of penalizing

children, the intended beneficiaries of AFDC, for the con.

duct of their parents. As noted by a three-judge district

court in invalidating a three-month waiting period for

receipt of AFDC that had been defended as a means of

“keeping families together”: “This legitimate interest is

clearly promoted by means impermissible under the fed.

eral Act, because it postulates deprivation of the children

as the club to keep the parents together.” Damico v. Cali-

fornia, —— F. Supp. —— (Civ. No. 46538, N.D. Cal., opin-

ion filed Sept. 12, 1969), unreported opinion at 7.

Moreover, the state of Maryland does not lack deterrents

designed in fact to deal with the problem of desertion.

Article 27, Sections 88-90 of the Maryland Code provide

civil and criminal sanctions, ranging up to incarceration

for a period of three years, to deter parents from desert-

ing their children. Just as the WIN program provides

Maryland with a specific, detailed program to cope with

unemployment among welfare recipients, so the Maryland

Code contains provisions designed to deal with desertion,

the particularity and sophistication of which expose the

speciousness of Maryland’s claim that the family maximum

constitutes a desertion deterrent.

Finally, there is the fact that Maryland permits the

parents to avoid the effect of the family maximum by

placing children with other relatives capable of affording

a home eligible for AFDC. If one is to traffic in specula-

tions—they are not more—concerning the impact of AFDC

benefit regulations upon a man desperately contemplating

desertion, what effect will knowledge of these possibilities

for avoiding the family maximum have? Will the coldly

calculating, fully informed deserter take cognizance of such

possibilities and desert as readily as though there were no

family maximum? Is this what is indicated by the deser-

tion figures mentioned at the outset, or do those statistics

rather indicate ignorance of the entire problem? In any

event, they do indicate that desertion is little affected by

the presence or absence of a family maximum.

3. The family maximum as family planning.

Appellants urge that the family maximum may be

justified as a birth-control device. Without repeating

demonstrations earlier attempted, we note in passing

difficulties of overinclusion and underinclusion. Why is it

that birth control takes hold at the sixth and subsequent

children, while the fecundity that begat the first five is so

easily forgiven?

Even more objectionable than the slippage between

means and end is the illegality of the means. However

urgent or desirable the limitation of population, one may

not lawfully pursue that end by punishing the offspring

one wishes were not born. Such a practice would be no

more justifiable than the attempted deterrence of extra-

marital sexual relations condemned on constitutional and

statutory grounds in King v. Smith, supra. As this Court

stated in striking down the substitute-father rule,

“In sum, Congress has determined that immorality and

illegitimacy should be dealt with through rehabilitative

measures rather than measures that punish depen-

dent children, and that protection of such children is

the paramount goal of AFDC. ... [I]t is simply §

inconceivable . . . that Alabama is free to discourage

immorality and illegitimacy by the device of absolute

disqualification of needy children. ... [T]he method it

has chosen plainly conflicts with the Act.” 392 U.S. at

325-27.

So also is it inconceivable that a state may, consistently

with the Social Security Act, deny public assistance to

children to prevent their parents from further procreation.

The means chosen to effect the purpose plainly conflict

with the Social Security Act. While 42 U.S.C. §602(a) (15)

(A) (ii) endorses the adoption of a state plan looking to

reducing the incidence of out of wedlock births, §602(a)

(15)(C) plainly provides “that the acceptance by such

child, relative or individual of family planning services

provided under the plan shall be voluntary . . . and shall

not be a prerequisite to eligibility for or the receipt of

any other service or aid under the plan.” Just as Ala-

bama was precluded from sacrificing protection of depen-

dent children to deter illegitimate births, so a fortion

is the state of Maryland precluded from sacrificing AFDC

children to deter legitimate births. Indeed, under the

Social Security Act, a state may not deny aid to even the

person at whom the birth-control practices are aimed, much

less deny aid to a child whose role is merely that of a pawn

in the state’s game to influence his parent. Surely, to

permit family maximums with their implicit denial of aid

to children, while proscribing termination of the adult

whose fecundity is at issue, would be absurd.

Indeed, even were the Social Security Act’s preemptive

disapproval of coercive family planning not so clear, a

state could not constitutionally punish a child to influence

his parents’ behavior. Surely all would agree that, morally

speaking, such practice would be a barbaric atavism, and,

constitutionally speaking, such practice would reek with

overtones of corruption and attainder long anathema to

our constitutional tradition. As this Court put the point in

Levy v. Louisiana, supra:

“We conclude that it is invidious to discriminate against

them when no action, conduct, or demeanor of theirs is

possibly relevant to the harm that was done the

mother.” 391 U.S. at 72.

The right to freedom of choice in procreation is clearly

a constitutional right. Griswold v. Connecticut, supra; cf.

Skinner v. OXlahoma, supra. States are forbidden to with-

hold payment of benefits because of the exercise of a con-

stitutional freedom. Sherbert v. Verner, supra; Shapiro v.

Thompson, supra. See, in general, Shelton v. Tucker, 364

U.S. 479 (1960), and cases cited. Particularly is such dis-

crimination patently wrong under a statute designed to

aid mothers in the best interests of the child.

4. The family maximum is necessary to save funds

and please voters.

When the Maryland family maximum was first challenged,

the state of Maryland dealt more simply (and perhaps more

frankly) with the problem of justification for the family

maximum. See opinions below. Its purpose was to save

money and please the electorate. However plausible these

statements of purpose, they are plainly unacceptable as con-

stitutional justifications. Any limitation, any deprivation

of a class of public assistance recipients will save money,

which may be spent on other recipients or on monuments to

public greatness. The question is rot whether a distinction

saves money.*® All deprivations of public assistance save

money, however blatantly discriminatory. The question

relevant to equal protection analysis is whether the deprived

class differs in any meaningful sense from the favored

class. To this question, no answer is provided by the

observation that more money would be spent if the depriva-

tion were removed.

Similarly, what pleases the electorate can hardly be

determinative of equal protection challenges. Unhappily,

some electorates prefer discrimination of the most blatant

and invidious sort. Indeed, it is just such preferences that

the Equal Protection Clause calls upon the judiciary to

repudiate.

II.

Establishment of an arbitrary ceiling on the amount

of an AFDC grant violates the Social Security Act.

It has been made clear by this Court that “any state law

or regulation inconsistent with [the] federal terms and

conditions” upon which federal funds are disbursed to the

state “is to that extent invalid.” King v. Smith, 392 U.S. at

333, n. 34. In establishing in Point I that a number of the

purposes for the maximum grant proffered by the state

(work incentive, family planning, desertion disincentive)

were not rationally achieved by the classification at issue,

* See, ¢.g., Shapiro v. Thompson, 394 U.S. at 633; Westberry v.

Fisher, 297 F. Supp. at 1114-15; Dews v. Henry, 297 F. Supp. at

592; Kaiser v. Montgomery, unreported opinion at 7; Rothstein v.

Wyman, 303 F. Supp. at 348.

we necessarily demonstrated that those purposes were being

achieved in a manner forbidden by the Social Security Act.

Of course this violation of federal mandate constitutes an

independent statutory ground for decision. We shall in this

section explore one further ground considered by the court

below and certain statutory defenses raised by appellants.

A. The maximum grant violates the statutory command

that aid shall be given to all eligible individuals.

The Social Security Act requires that a state plan for

AFDC “provide ... that aid .. . shall be furnished .. . to all

eligible individuals.” 42 U.S.C. §602(a)(10).1 The estab-

lishment of a maximum on the grant an AFDC family may

receive, unrelated to its need, violates the statutory mandate

in one of two ways: It denies assistance to eligible

children whose needs raise the family need above the level

of the maximum and which are therefore not considered in

determining the amount of the grant, or it conditions the

scope of eligibility of each family member on the number

of individuals in the recipient family.

First, the imposition of a grant maximum results, for

example, in no payment whatever being made on behalf of

the fifth child in a family living in Delaware (indeed, the

fourth child receives only $1) or in Georgia and in no

payment being made on behalf of the sixth child in a family

living in Alabama, Maryland, or Tennessee. Similar results

obtain in the other states that impose grant maximums.

Nothing, however, in the Act’s definition of “dependent

child” or in any other provision of the Act relates eligibility

_ See King v. Smith, 392 U.S. at 317, 333, in which the provision

is referred to as 42 U.S.C. §602(a) (9). (It was so numbered prior

to the enactment of the 1967 Social Security Amendments.)

for AFDC to the number of persons in an individual’s

family. Clearly, the fifth or sixth child in a given family is

as deprived of parental support as is the second; yet the

effect of the grant maximum is to ignore his existence and

to deny his eligibility. The maximum grant regulation is

thus a clear violation of the congressional mandate that

AFDC “be furnished with reasonable promptness to all

eligible individuals.”

An alternative effect of a grant maximum is to condition

the scope of the statutory entitlement established under

federal and state AFDC programs on the number of

individuals in the recipient family. Under the Maryland

maximum, for example, the members of a family of 12 are

granted only half the entitlement of the members of a

family of six.? While some diminution of per-capita entitle-

ment may be justified by economies of scale, neither Mary-

land nor the other states whose maximum grant schedules

have been the subject of litigation have defended such

schedules as bearing any relation to actual need.’ Federal

regulations require that “A state plan... must... provide

that the determination of need and amount of assistance

for all applicants and recipients will be made on an objec-

tive and equitable basis . . .” 45 C.F.R. §233.20(a) (1); 34

? Under a maximum such as California’s, which imposes indi-

vidual maximums on a rapidly declining scale but no overall family

maximum, the effect is less onerous but the scope of entitlement

is still significantly narrowed with an increase in the size of the

family. Thus a family of six in California receives $50 per person

($300 total), while a family of 12 receives only $33 per person

($399 total). The California benefit scale is set out in Kaiser v.

Monigomery, unreported opinion at 4, n. 3.

* Economies of scale are reflected in the need standard; the maxi-

mum grant reduces aid to large families below the need standard.

Fed. Reg. 1394 (Jan. 29, 1969). Absent such a rational

relation between the scope of entitlement and per-capita

need, it is just as irrational to condition the extent of the

statutory right to receive AFDC on the size of one’s family

as it would be to condition it on the color of one’s hair.

The bases for narrowing entitlement recognized by

Congress are found (1) in the requirement that state plans

provide that the determination of need shall take other in-

come or resources of the applicant into consideration, 42

U.S.C. §602(a) (7), and (2) the termination of assistance to

that member of the family unit who under the WIN pro-

gram refuses employment or training without good cause,

42 U.S.C. §602(a)(19)(F). Cf. Doe v. Shapiro, 302 F. Supp.

761 (D. Conn. 1969). Absent any other evidence of

congressional authorization for conditioning the scope of

eligibility on some characteristic of the recipient family,

the mandate that “aid ... shall be furnished .. . to all

eligible individuals” must mean that if the state furnishes

aid equivalent to need to a family of six, it must do likewise

with respect to a family of 12.

B. Congress has not endorsed maximum grants.

Appellants cite three provisions of the Social Security

Act as “recognizing [the] validity of state maximum grant

regulations.” Brief at 3. An examination of these pro-

visions and their legislative history shows, however, that

each represents at most a de facto acknowledgement of the

existence of grant maximums and that, like the provision

at issue in Shapiro v. Thompson, 394 U.S. at 639, “the

statute does not approve, much less prescribe” a system of

maximum grants.

1. Section 402(a) (23).

Section 402(a)(23) of the Act, 42 U.S.C. §$602(a) (23),

enacted as part of the Social Security Amendments of

1967, P.L. 90-248, 81 Stat. 821, is well known to this Court as

the statute at issue in Rosado v. Wyman, O.T. 1969, No.

540." It began its legislative history as an Administration

proposal to require states to meet fully their own standard

of need as in force during a base period and to reprice that

standard by July 1, 1969 and annually thereafter.‘ The bill

passed by the House as H.R. 12080, however, excluded any

provision requiring an increase in benefit levels.* In the

Senate Finance Committee the Administration proposal

was dropped insofar as it required meeting need in full.

The balance of the Administration proposal, requiring in

AFDC a cost-of-living adjustment by July 1, 1969 and

annually thereafter, was retained, and in place of the

payment-of-full-need requirement the Senate Committee

modified the language to require that “any maximums...

on the amount of aid” be proportionately adjusted.

Numerous amendments were added on the floor of the

*« The section reads:

“A State plan for aid and services to needy families with chil-

dren must .. . (23) provide that by July 1, 1969 the amounts

used by the State to determine the needs of individuals will

have been adjusted to reflect fully changes in living costs since

such amounts were established, and any maximums that the

State imposes on the amount of aid paid to families will have

been proportionately adjusted.”

* House Committee on Ways and Means, Hearings on H.R. 5710,

90th Cong., Ist Sess. at 59 (1967).

* Bureau of Social Science Research, Inc., The Legislative His

tory of Aid to Dependent Children: A Chronological Account and

Analysis of the Federal Legislative Process 249 (1969).

*S. Rep. No. 744, 90th Cong., Ist Sess. 293 (1967).

Senate, but condition 24 (now Section 402(a) (23) ) remained

intact.’ The Senate-House Conference Committee adopted

the Senate AFDC cost-of-living provision verbatim, omit-

ting only the requirement for annual updating of need

standards after July 1, 1969.*

The purpose of the adjustment-of-maximums require-

ment as part of a provision for “Increasing Income Of

Recipients Of Assistance”*® should be obvious: Without

such a requirement, those states imposing grant maximums

could nullify the cost-of-living-adjustment requirement by

retaining the grant ceilings in force before the adjustment

was made. Far from giving its stamp of approval to

maximum grants, Congress at most was acknowledging

their existence and taking precautions to ensure that they

would not be permitted to undercut the intended effect of

an ameliorative provision. As with the residency provision

at issue in Shapiro v. Thompson, supra, congressional con-

cern in enacting the cost-of-living-adjustment provision

was with alleviating hardships, not with sanctioning

restrictive state practices.

Moreover, the adjustment-of-maximums provision applies

equally to all devices used by states in decreasing benefit

levels below the standard of need, namely, individual maxi-

mums, family maximums, and percentage reductions. The

Administration’s proposed requirement of payment of need

in full clearly covered all three. The Administration sub-

mitted with its proposal two charts, one depicting the record

"113 Cong. Rec. 33560 (1967).

* E.R. Rep. No. 1030 (Conference Report), 90th Cong., Ist Sess.

63 (1967).

*Id.

of those states using one or more of these mechanisms, the

other expressing in dollar figures the “highest monthly

amounts payable for basic needs,” including those “amounts

resulting from the application of a percentage or flat

reduction to the amount of determined need.” *® The Ad.

ministration clearly did not distinguish among the variou

methods of benefit reduction in explaining the necessity for

requiring payment of full need. The Senate Committe

acted on this record in substituting a required adjustment

of “any maximums” for the meeting-need-in-full proposal.

This substitution was plainly intended to require propor.

tionate adjustments in those states not meeting need in full,

by whatever mechanism benefits were reduced. It clearly

did not focus on the particular device of the family maxi-

mum, which incorporates discriminations that are not

present at all in across-the-board percentage reductions and

that are present in less onerous form in a system of in-

dividual maximums.

2. Section 406(b).

Appellants next cite §108(a) of P.L. 87-543, 76 Stat. 172,

a provision of the Public Welfare Amendments of 1962 that

amended §406(b) of the Act, 42 U.S.C. §606(b). The amend.

ment (since superseded) expanded the definition of “aid to

families with dependent children” to include, for the first

time, so-called protective payments, that is, payments made

to an individual other than the relative with whom the

dependent child is living. The provision reflected a concem

that “some few [payees] have difficulty in handling their

*° House Comm. on Ways and Means, Section-by-Section Anal-

ysis of H.R. 5710, 90th Cong., Ist Sess. 37 (1967).

funds so that their children receive the full benefit of the

money made available by the State.”

The House bill included “a series of safeguarding pro-

visions,” one of which required “a meeting of all need as

determined by the State.”** The Senate Finance Commit-

tee approved §108 but amended it to specify that if an

individual’s assistance payment plus other income or re-

sources was equal to kis state-determined need, a protec-

tive payment would be included within the definition of

“aid to families with dependent children” and consequently

would be subject to federal financial participation. As

explained by the Senate Committee:

“The effect of this provision is to make it possible for

protective payments to be made in behalf of certain

ADC recipients in States in which there is a maxi-

mum limiting the amount of assistance an individual

* ~ at Testimony of Secretary Abraham Ribicoff of the Department

of Health, Education, and Welfare before the Senate Finance Com-

mittee, Hearings on H.R. 10606 Before the Senate Comm. on

Finance, 87th Cong., 2d Sess. at 137 (1962). See also H.R. Rep.

No. 1414, 87th Cong., 2d Sess. 17 (1962).

“H.R. Rep. No. 1414 at 18. See also id. at 33-34; Conf. Rep.

No. 2006, 1 U.S. Code Cong. & Adm. News, 87th Cong., 2d Sess.

1980 (1962). The House provision read, in relevant part:

“(b) The term ‘aid to families with dependent children’

includes . . . (2) payments with respect to any dependent child

eee which do not meet the preceding requirements of this

subsection, but which would meet such requirements except

that such payments are made to another person who... is

interested in or concerned with the welfare of such child and

relative, but only with respect to a State whose State plan

approved under section 402 includes provision for—

(B) meeting all of the need, as determined by the State,

of individuals with respect to whom aid to families with de-

pendent children is paid; .. .” H.R. Rep. No. 1414 at 52-53.

may receive. These are the cases in which the statp.

tory maximum does not prevent need from being met

in full according to the State’s standards.” S. Rep,

No. 1589, 1 U.S. Code Cong. & Adm. News, 87th Cong,

2d Sess. 1956 (1962).

No Senate debate touched upon the Senate amendment of

the House protective-payment provision, and §108 wa

passed as reported out by the Senate Committee.” In the

Senate-House Conference Committee the House conferees

receded and the Senate amendment became law."

Two facts about the Senate amendment to the House

version of §108 make it clear that there was no intention

to place a congressional stamp of approval on family grant

maximums. The first is the requirement that a state.

imposed maximum not affect an individual on whose behalf

a protective payment is being made. The second is the

reference in the Senate Committee report to “a maximum

limiting the amount of assistance an individual may re-

ceive.” Like the phrase “any maximums” in $402(a) (23),

this phrase is equally applicable to all methods of benefit

reduction, t.e., individual maximums, family maximums, or

percentage factors. There is thus no evidence that Con-

** Conf. Rep. No. 2006 at 1980.

14 Td. at 1981. The provision amended subpart (B) of §406(b),

supra note 12, to read as follows:

“(B) making such payments only in cases in which such pay-

ments will, under the rules otherwise applicable under

State plan for determining need and the amount of aid to

families with dependent children to be paid (and in conjunc

tion with other income and resources), meet all the need of

the individuals with respect to whom such payments are made;

...” Public Welfare Amendments of 1962, 1 U.S. Code Cong.

& Adm. News, 87th Cong., 2d Sess. 236 (1962).

gress focused on the particular discriminations character-

istic of the type of maximum here at issue, and there is

some evidence that Congress disapproved of maximums, at

least to the extent of determining not to extend the option

of federally funded protective payments to individuals

affected by grant maximums.

3. Section 1903(f).

Appellants finally cite another provision of the Social

Security Amendments of 1967, §220(a) of P.L. 90-248, 81

Stat. 821, which added to Title XIX of the Act (Medical

Assistance) a new §1903(f), 42 U.S.C. $1396b(f). This

provision dealt with those individuals for whom federally

funded Medical Assistance could be provided on the ground

that they were “medically indigent”; it reflected a congres-

sional concern that an upper limit on the income of those

eligible as medically indigent needed to be established.”

As reported out by the House Ways and Means Commit-

tee and passed by the House, §226(a) limited federal finan-

cial participation in Medical Assistance benefits to those

whose incomes did not exceed 13314 per cent of the highest

amount of AFDC assistance paid to a family of the same

size without any income or resources. An exception to the

basic formula was provided, however, authorizing the

Secretary of Health, Education and Welfare, “where the

operation of a uniform maximum limits payments to fam-

ilies of more than one size, to adjust the income limitation

amount to take account of families of different sizes.” **

*113 Cong. Rec. 23062 (1967) (remarks of Rep. Byrnes). See

also H.R. Rep. No. 544, 90th Cong., 1st Sess. 118 (1967); S. Rep.

No. 744, 90th Cong., 1st Sess. 176 (1967).

%* H.R. Rep. No. 544 at 183.

The Senate Finance Committee substituted a formula

based on 150 per cent of the states’ standards for Old Age

Assistance (OAA), rather than their standards for AFDC,

a change “designed to reach the same, perhaps even a

greater, magnitude of reduction in Federal obligation as

does the House-approved bill” but to do so “in a more

equitable, simple, and direct manner.”*’ The provision

was passed by the Senate and sent on to Conference, where |

the Senate conferees acceded to the House formula based

on 13314 per cent of the AFDC payment level.” As en.

acted, the relevant portion of the amendment provides:

“Tf the Secretary finds that the operation of a uniform

maximum limits payments to families of more than

one size, he may adjust the amounts otherwise deter.

mined under clause (i) to take account of families of

different sizes.” 42 U.S.C. §1396b(f) (1) (B) (ii).

The intent of this savings clause was clearly to avoid

penalizing those who would qualify as medically indigent

but for the operation of an AFDC grant maximum. Far

from approving the imposition of grant maximums, the

provision was designed to prevent their imposition on

those who would otherwise be eligible for Medical Assist-

ance benefits under Title XIX. Congress was here not

directly concerned with, and thus cannot be considered to

have passed on the validity of, grant maximums under

Title IV; it was concerned, however, with avoiding an ex-

tension of the arbitrariness of such maximums into Title

XIX.

17S. Rep. No. 744 at 176.

18 Conf. Rep. No. 1030, 90th Cong., Ist Sess. 63 (1967).

CONCLUSION

The Court should hold that the imposition of an arbi-

trary maximum on the amount of an AFDC grant is vio-

lative of the Equal Protection Clause of the Fourteenth

Amendment and of the Social Security Act in that it cre-

ates a disadvantaged class of large families, which classi-

fication does not further, but subverts, the purposes of the

Social Security Act and is not rationally related to any

permissible state interest. The decision of the court below

should be affirmed.

Respectfully submitted,

Pavut M. Dopyx

Henry A. FREEDMAN

LovutsE LANDER

401 W. 117th Street

New York, New York 10027

Attorneys for the Center on Social

Welfare Policy and Law

Cart RacHuin

1419 H Street, N. W.

Washington, D. C. 20005

Attorney for National Welfare Rights

Organization

Francis X. GALLAGHER

JosepH G. Finnerty, JR.

1 Charles Center

Baltimore, Maryland 21201

Attorneys for Associated Catholic

Charities, Incorporated

Donatp F. Fontaine

Rosert E. Mrrrei

156 Danforth Street

Portland, Maine 04101

Attorneys for Pine Tree Legal As.

sistance, Inc.

Antony B. Cuine

112 W. Pennington Street

Tucson, Arizona 85701

Attorney for the Legal Aid Society of

the Pima County Bar Association

JoHN Gant

Epmunp J. Woop

10414 Cherry

Seattle, Washington 98104

Attorneys for Seattle Legal Services

Center

Peter E. Srrxin

Steven J. ANTLER

1095 Market Street

San Francisco, California 94103

Attorneys for the Neighborhood

Legal Assistance Foundation

Joun L. Boetrner, JR.

1026 Quarrier Street

Charleston, West Virginia 25301

Attorney for the Legal Aid Society of

Charleston

Euus J. FrencH

HELENE Simson

MicHAEL BrowDE

Cartes Du Mars

County Courthouse Building

Albuquerque, New Mexico 87101

Attorneys for the Legal Aid Society

of Albuquerque

MicuaEt H. Terry

153 Pryor Street, S. W.

Atlanta, Georgia 30303

Attorney for Atlanta Legal Aid

Society

Micwart A. DoyLe

Citizens & Southern National

Bank Building

Atlanta, Georgia 30303

“

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.