The stereotype of the lazy, black welfare mother who “breeds children at the expense of the taxpayers in order to increase the amount of her welfare check” informs and justifies the ongoing welfare debate. This debate has led to the passage of recent federal welfare “reform” legislation eliminating the federal entitlement program of Aid to Families withDependent Children (AFDC). The debate now continues at the state level, as states formulate their own welfare programs under the new block grant program. Because certain stereotypes perpetuate the myth that poverty is caused primarily by the “irresponsibility” of the poor, many states seek to “reform” welfare by enacting measures aimed at modifying recipients’ perceived behavior. Many of these measures are steeped in a history of racism, yet evade meaningful judicial review under federal equal protection analysis.
One such measure, the child exclusion provision, penalizes welfare recipients who have additional children by denying otherwise automatic increases in benefits when a child is born into a recipient family. Denial of the grant increase bars dependent children conceived by welfare recipients from receiving public assistance grants necessary for their care, maintenance, support and protection. Although facially race-neutral, child exclusion provisions are rooted in a history of racial discrimination that has restricted black women’s access to welfare.
This article argues that we must examine the intersection of race and class in the imagery and historical treatment of welfare recipients to expose the race discrimination underlying child exclusion provisions. Federal equal protection analysis of welfare legislation misses this race discrimination. This failure of equal protection jurisprudence is due, in part, to the way in which the Court defines race discrimination: rather than examining the context in which a challenged measure operates, the Court merely looks for a “purposeful intent” to discriminate. Because of the federal courts’ limited approach to equal protection, advocates for the poor must look to the broader protections offered by some state constitutions as means of articulating the historical and social context in which welfare measures operate.
Part One of this article explores how child exclusion provisions are aimed at women of color. It begins by discussing what Professor Charles Lawrence calls the “cultural meaning” of legislation and its operation in child exclusion provisions. The “cultural meaning” of child exclusion provisions is evident in the welfare system’s historical discrimination against black women, as well as in the racist stereotypes and myths surrounding welfare recipients. Specifically, I will show that child exclusion provisions are implicitly aimed at black women.
Part Two details how federal equal protection jurisprudence is limited because of its failure to recognize that race and class are inextricably intertwined. These limits have curtailed protections against race discrimination in welfare legislation. The Equal Protection Clause isdesigned to eliminate invidious classifications, which include race but not economic class. Thus, legislation directed at poor people is judged by a deferential standard assigned to economic regulations. Furthermore, a plaintiff alleging a constitutional violation in this context must show that the defendant had a “purposeful intent” to discriminate. This test mistakes the way race operates in our culture and excludes situations in which economic class plays a significant role in race discrimination. Attempts to challenge welfare reform measures have been frustrated by these inadequacies in current equal protection jurisprudence.
Part Three focuses on the utility of state constitutions as an alternative to the federal Equal Protection Clause for challenging the unconscious racism that underlies child exclusion provisions. In particular, I will argue that under the Massachusetts state constitution, a child exclusion provision may be judged racially discriminatory. The reasons for this are two-fold: the Massachusetts court has shown its willingness to afford greater protections under the Massachusetts Constitution than the U.S. Constitution; and the court has indicated its acceptance of and ability to explore context and history in discerning race discrimination.
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