Welfare Litigation to Prevent Homelessness


The 1980s have witnessed an extraordinary increase in homelessness among families with children. These families’ lives are completely disrupted. Such families depend on temporary shelter that is often the most makeshift, squalid, and overcrowded of accommodations. They are exposed to disease and other health hazards. Their children are discriminated against in education. They lose all semblance of normal family life. Indeed, the prospect of raising children in shelters for the homeless leads some parents to place their children in foster care, thereby cutting the child off from both parents and siblings. As Jonathan Kozol has written, our policies affecting homeless children are creating a new underclass which is not only beset with the material problems of extreme poverty but also with virtually no basis to hope for a better life.

The growth in homelessness coincides with both a drop in the level of benefits provided to poor families and a statutory and judicial retrenchment in protections afforded to applicants for, and recipients of, public assistance. Between 1975 and 1987, benefit levels for a family of three declined by an average of sixty dollars per month in real terms. In twelve states, the value of benefits declined by over one hundred dollars per month. There is not a single state that provides a combined allowance of Aid to Families with Dependent Children (AFDC) benefits and food stamps that is equal to the poverty level. Meanwhile, courts have upheld increasingly restrictive provisions for determining eligibility for welfare benefits and procedures for their reduction and termination.

The correlation between growing homelessness and restrictive welfare policies is far from coincidental. Studies of homeless families demonstrate that these families often became homeless because they were unable to pay their rent.” Welfare policies can contribute to this problem in numerous ways: benefit levels may be set too low to allow a family to maintain its housing; the manner in which the welfare program is administered may lead to the improper denial, termination, or reduction of benefits, thereby causing families that otherwise should be able to meet their housing costs on current welfare budgets to lose their housing nonetheless; substantive provisions for determining eligibility may operate to exclude persons who are in fact needy and who face homelessness in the absence of aid; and sanctions for noncompliance with program requirements may be set at levels where imposition of the sanction forces the family to lose its shelter. In short, any rule or procedure that has the effect of keeping a family from paying its rent can result in homelessness.

Ironically, the homelessness caused by restrictive welfare policies may be the key to challenging the policies themselves. This Article suggests that, in each major area of welfare litigation, the severe consequences of homelessness for families with children provide a basis for the courts to play a more active role in reviewing the legality of welfare policies. Although the courts have begun to play this role with respect to enforcing state standards for assessing the adequacy of welfare benefits, some courts have adopted a very restrictive view of their power to provide meaningful relief. With respect to other areas of welfare litigation, courts have not yet examined the implications of homelessness on the appropriate degree of scrutiny for evaluating welfare policies. This Article suggests some ways in which the prevention of homelessness should be considered in enforcing welfare rights.

Part I discusses the use of litigation to enforce state standards of benefit adequacy and the way in which the dire consequences of homelessness allow for the enforcement of state statutory and constitutional adequacy standards that have previously remained unenforced by the courts. Part II explores how homelessness provides a basis for more rigorous scrutiny of welfare policies under due process and equal protection analysis.

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