Revolt of the Nonpersons

Faced with a Kafkaesque maze of shifting restrictions and all-powerful bureaucracies, the nation's 8,000,000 welfare recipients have tended to become what Supreme Court Justice Abe Fortas calls "constitutional nonpersons." Since the 1935 Social Security Act established the U.S. welfare system, federal officials, state agencies, municipal departments and even individual welfare workers have set up a profusion of separate standards as to who should and should not get aid.

Now the nonpersons are waking up to the fact that in many circumstances welfare is a legal right, based on need and enforceable by due-process standards of law. The 1935 act essentially rejected the ancient "gratuity" concept of public assistance as a charitable handout given to the humbly grateful. And recently, in state and federal courts, decisions have begun to vindicate the rights of welfare beneficiaries.

Illegitimate Siblings. Restrictions are highly varied and often arbitrary. The reason is that although the Federal Government pays 58% of the welfare bills, it has allowed the states almost complete freedom in deciding aid eligibility. The 14th Amendment forbids unreasonable state discrimination against individuals. But not only have some states enacted unfair eligibility provisions; they have also administered their own valid rules unfairly.

In 1960, for example, Louisiana families with dependent children were cut off from aid if they lived in "unsuitable" homes, meaning those sheltering any illegitimate child. Off the rolls went more than 23,000 children, most of them Negro and many of them legitimate half-brothers or -sisters of an illegitimate sibling. A federal ruling struck down that regulation, but other rules affecting children remain. Currently under attack is Georgia's "employable mothers" law, which allows counties to cut Negro mothers off the family-aid rolls whenever farmers need $2.50-a-day crop pickers. In 21 states, grants may not exceed a stated maximum no matter how many children a family has. Excess children must live in other homes or go hungry.

Residency rules are just as stringent. Federal law allows states to require newcomers with dependent children to wait as long as one year to become eligible for U.S.-backed aid. States can also withhold the funds of their own welfare programs for as long as they choose. A South Dakota law can bar needy outsiders from ever collecting welfare; in Massachusetts they can be deported to their native states. All such requirements sit uneasily with the spirit of a 1941 Supreme Court decision voiding California's "anti-Okie" law and guaranteeing indigents free access to any state. And last month a three-judge federal court in Connecticut cited that case in throwing out the state's one-year-residency requirement. Connecticut will appeal to the U.S. Supreme Court --and the residency laws of some 40 other states will ride on the results.

HEW, Too. Another long-standing grievance is the practice of raiding homes of mothers on welfare to see whether there is a man around. If even a casual lover is flushed, he may be designated a "substitute father," which can disqualify the family for welfare aid. The raids ae conducted without search warrants or voluntary consent. Earlier this year, after Social Worker Benny Max Parrish refused to go on one, the California Supreme Court ruled that pre-dawn raids aimed at discovering a "man in the house" are unconstitutional. The California ruling may prompt challenges to such raids in other states. In Alabama a federal suit has been filed alleging that the substitute-father law is used primarily against Negroes, punishes children for a deserted mother's sex life and violates her right of privacy. And now, the Health, Education and Welfare Department has taken initial steps to limit the raids to normal hours, and then only with the recipient's permission.

Then there is the question of whether a welfare recipient may be jailed if he refuses to take an available job. The New York Court of Appeals recently said no in the case of Mose Pickett, 32, a jobless father of three who spurned state offers of a $1.50-an-hour laborer's job because, he said, he was looking for a better job. He lost his welfare, and although he subsequently took a similar job, he got a 30-day jail sentence from the City Court of Niagara Falls. The court voided Pickett's conviction, implying that such a requirement verged on "involuntary servitude."

Behind this growing body of pro-recipient decisions is a band of concerned lawyers paid by the federal poverty program. The drive is also supported by such diverse groups as the American Bar Association, the N.A.A.C.P. Legal Defense Fund and Columbia University's Center on Social Welfare Policy and Law. The lawyers' aim is to make sure that welfare workers and agencies obey the rule of law, not just their own notion of what is good for welfare recipients. Responding, the Health, Education and Welfare Department has come out for the same thing. It recently commanded the states to pay far closer attention to "the constitutional and statutory rights of recipients."

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