Brutal Need

Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973

Martha F. Davis
Copyright Date: 1993
Published by: Yale University Press
Pages: 200
https://www.jstor.org/stable/j.ctt32bdnd
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    Brutal Need
    Book Description:

    During the 1960s a new breed of "poverty lawyers"-in collaboration with welfare recipient activists-mounted a legal campaign to create a constitutional right to welfare. The collaboration worked significant changes in the social welfare system of the United States and in the scope of individual constitutional rights. In this book, Martha F. Davis tells the behind-the-scenes story of the strategies, successes, failures, and frustrations of that important campaign.Drawing on interviews with many of the people who participated in the welfare rights movement, as well as on original sources, Davis traces the historical and philosophical connections among welfare rights lawyers, the settlement house movement of the late nineteenth and early twentieth centuries, and the civil rights movement, and she shows how the legal campaign for the poor followed and built on the litigation strategies developed by the NAACP Legal Defense and Educational Fund's earlier effort to desegregate the public schools. She outlines the creation of welfare law in the 1960s and provides the first detailed account of the strategy to use law as a mechanism for organizing and expanding the rights of welfare recipients. She vividly describes seminal cases and individual lawyers and activists, including Edward Sparer, the lawyer acknowledged as the father of welfare law; George Wiley, founder of the National Welfare Rights Organization; and Charles Reich, whose theories were crucial to the formulation of the plaintiffs' position inGoldberg v. Kelly, the landmark case that argued that welfare benefits were protected by the due process clause and should not be terminated without a hearing. Even though 1960s welfare rights litigation was ultimately unsuccessful in broadly reforming the welfare system, Davis shows the important role legal strategies and lawyers themselves have played in this social movement of the poor.

    eISBN: 978-0-300-16263-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction
    (pp. 1-5)

    The 1960s was a decade of innovation and expansion in government programs providing services to the poor. It began with President Kennedyʹs efforts to fund, on a small scale, creative programs addressing poverty and juvenile delinquency. From the 1964 declaration of the War on Poverty through the 1968 election, President Johnson oversaw the implementation of an array of federal programs for Medicare and Medicaid, housing assistance, job training, and public education.¹

    The 1960s was also a time of increased interest in individual rights as an organizing principle for a diverse society. The civil rights movement, then in full flower, was...

  5. Chapter 1 Welfare and ʺThe Manʺ
    (pp. 6-9)

    The story of welfare in the early to mid twentieth century is one of gradually increasing control by federal and state governments. For 300 years prior to the New Deal the federal government had eschewed direct responsibility for care of Americaʹs poor. During most of that time poor relief was the province of such private agencies as churches or social clubs that offered assistance to the ʺdeservingʺ poor (children, widows, trainable immigrants) with minimal state support or regulation. But during the two prosperous decades leading up to the Great Depression, Progressive party activists ushered significant welfare reforms through many state...

  6. Chapter 2 Poor Law and Poverty Lawyers
    (pp. 10-21)

    Until the 1960s practicing poverty law meant little more than giving routine legal advice to poor people. A handful of lawyers—most notably the 400 or so employed by Legal Aid societies across the country—had specialized in representing the poor since the late nineteenth century, but no cohesive body of poverty law had been developed by the litigants or the courts. Except in a few academic circles, labor law, family law, administrative law, and constitutional law were not recognized as having unique impacts on poor people. Instead, legal theorists held to the laissez-faire notion that the law was class-blind.¹...

  7. Chapter 3 The Welfare Law Guru
    (pp. 22-39)

    Edward V. Sparer was concerned with issues of class and of economic redistribution at a time when most progressive lawyers were focused on establishing racial equality.¹ Sparer was a few years older than most of his law school classmates, who had come of age in the 1950s, once the United States was entrenched in the cold war against Eastern Europe and afterBrown v. Board of Educationhad heralded a new age of racial equality. Sparerʹs adult life had begun in the 1940s, when the promise of socialism hinted at by the New Deal had not yet been abandoned and...

  8. Chapter 4 The Movement
    (pp. 40-55)

    By the mid-1960s the popular view that poverty was a by-product of the social organization of the slums rather than a personal, moral failure had eliminated some of the stigma associated with welfare. The civil rights and womenʹs movements contributed to recipientsʹ increasing willingness to demand recognition of their rights. Welfare recipients were starting to organize.

    Beginning in 1963 women on afdc around the country met, often at the neighborhood centers established by the federal Community Action Program, to talk about their experiences. Gradually these discussion groups, many of which were organized by local chapters of Students for a Democratic...

  9. Chapter 5 Southern Strategy
    (pp. 56-69)

    The litigation strategy to constitutionalize welfare owed much to the naacp Legal Defense and Educational Fund and its campaign against racial segregation. Like the naacp Legal Defense Fund lawyers, Ed Sparer and his colleagues at the Center on Social Welfare Policy and Law mapped out which issues should be litigated, in which courts they were likely to succeed, and how they should be presented. And, just as the naacp Legal Defense Fund attempted to manage the desegregation campaign, the Center made every effort to dictate the course of all litigation in the welfare area.¹

    Sparer wanted to begin the campaign...

  10. Chapter 6 The Middle Years
    (pp. 70-80)

    By 1967 the confidence that marked the early years of federal antipoverty efforts was beginning to wane. Even Sargent Shriver, the eternally optimistic head of the Office of Economic Opportunity, conceded that eliminating poverty would take longer than originally anticipated. Despite growing criticism of the federal spending entailed by the War on Poverty, President Johnson continued to support the program. ʺPoverty is curable,ʺ Johnson told a group of antipoverty volunteers in May 1967. ʺWe are not backing off from our commitment to fight poverty, nor will we so long as I have anything to say about it.ʺ¹

    With the Vietnam...

  11. Chapter 7 Life, Liberty, Property, and Welfare
    (pp. 81-98)

    For centuries welfare had been viewed as a gift from the state to the poor. The Social Security Act of 1935 did not alter this basic premise.¹ The welfare recipient had no legalrightto receive welfare; the state could give it or not so long as it did not violate any federal laws (after the Supreme Court decision inKing v. Smith) or infringe on the recipientʹs fundamental constitutional rights by the manner in which it dispensed its largess (after the decision inShapiro v. Thompson).

    The legal status of welfare as a gratuity was directly at odds with...

  12. Chapter 8 The Road to Washington
    (pp. 99-118)

    In their seminal article setting out a blueprint for federal legal services, ʺThe War on Poverty: A Civilian Perspective,ʺ Edgar and Jean Cahn rejected lawyer-driven test case strategies as a means for social change. Instead, they argued that it was imperative for poor people to participate in their own representation and for poverty lawyers to respond directly to the needs of their clients.¹

    The goal of the Center on Social Welfare Policy and Law, in contrast, was to create a corps of lawyers who would be removed from the community and have the leisure to think strategically about welfare issues...

  13. Chapter 9 The Impasse
    (pp. 119-132)

    As poor people across the country joined the welfare rolls and organized to claim more benefits, the cost of operating welfare programs soared. Increased scrutiny by the federal courts ensured that states could no longer control the number of recipients by imposing arbitrary eligibility rules. The states looked to Congress to relieve the pressure, and in late 1967 Congress responded.

    In August 1967 the Democrat-led House of Representatives passed, 415–3, a social security bill that would set up mandatory work training programs for afdc recipients, provide day-care centers to help welfare mothers work, and allow recipients to keep a...

  14. Chapter 10 A Different America
    (pp. 133-141)

    Even from the distance of his office at University of Pennsylvania Law School, Ed Sparer was perhaps more shaken by the collapse of his litigation strategy afterDandridgethan were his colleagues on the front lines. As he wrote a year after the decision,

    A contrary result inDandridgewould have permitted wholesale challenges to the barriers created by state legislatures and Congress to deny welfare assistance to groups of needy people. Distinctions between grant levels of individuals in equal need, whether because of differences in categories or their state of residence, might have been brought down. Traditional divisions between...

  15. Chapter 11 Open Questions
    (pp. 142-146)

    During the 1960s poor peopleʹs organizations first established a sustained collaboration with lawyers in pursuit of social change through litigation and legislation. Such a joint effort had been impossible so long as legal aid to the poor was limited to routine services designed simply to reduce public opposition to the legal monopoly held by the bar. But once the political coalition to establish federally funded legal services was in place, the new poverty lawyers worked with their clients to redefine poverty law. Drawing on settlement house models, storefront law offices were situated in poor communities, accessible to clients. Looking to...

  16. List of Individuals Interviewed
    (pp. 147-147)
  17. Note on Archival Sources
    (pp. 148-149)
  18. List of Abbreviations
    (pp. 150-152)
  19. Notes
    (pp. 153-180)
  20. Index
    (pp. 181-187)