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C H A P T E R

2 The Judiciary as a Shaperof Social Policy, Program, and Practice

Introduction

To understand the main business in this chapter, how the U.S. judiciary and its courts of law establish social policy and shape program operations, the reader has to be clear on some fundamentals about how the U.S. government works. The question is: Since the task of the courts is not to administer social policies and programs, how can the courts affect them within other branches of government? In this introduction, we will answer that question. We’ll begin with a description of the relationship of the Judiciary (the courts) to other branches of government.

Recall that there are three branches of government established by the U.S. Consti- tution: the legislative, the executive, and the judicial. At the heart of our Constitution is the idea that each of these has very different responsibilities and is to be independent of the others as each goes about its business. The Constitution establishes “checks and bal- ances” between them so that no one branch of government has complete power over the affairs of the nation. So (oversimplifying here), it is the business of the legislative branch, the Congress and Senate, to legislate—that is, to propose and enact laws. It is the busi- ness of the executive branch to see that these laws are put into effect through various gov- ernmental departments (the president is “in charge” of all government departments and offices). Health and Human Services (HHS) is the relevant example for us here. And it is the business of the judiciary (the courts) to “adjudicate”—that is, to make judgments about who is right or wrong according to the law as in (a) disagreements between citizens (civil law), (b) deciding the guilt or innocence of citizens who disobey laws (criminal law), and (c) disagreements between citizens and government agencies (often administrative law). Court orders reinstating an (“unfairly”) terminated government disability benefit or revoking the commitment of a person to a mental institution are examples of checks and balances in action. The judicial branch of government (the court) is checking (or balanc- ing) the action of the executive branch. Other examples are when a president vetoes leg- islation that the Congress has passed, when a federal or Supreme Court voids an act of Congress (or regulations imposed by the president) as unconstitutional, and when Con- gress passes certain kinds of laws that clarify its legislative intentions and, thus, makes inoperative a Supreme Court decision. These are all examples of the constitutional idea

Bacon. Copyright © 2005 by Pearson Education, Inc. Social Policy and Social Programs: A Method for the Practical Public Policy Analyst, Fourth Edition, by Donald E. Chambers and Kenneth R. Wedel. Published by Allyn and

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that a democracy has to have a way to constrain government abuse of power. That idea is worth celebrating since, despite all the “warts” on our form of government, it’s kept us free from the worst of tyranny for over 200 years.

Before a social policy or program can come before the Judiciary, someone must think a law has been broken. So, let us now look briefly at how laws establishing and funding public social policies and programs come into being.

How Are Public Programs Established and Funded? The Political and Legislative Processes

Public social programs can be established at any governmental level (city, county, state, or federal). Since technical legislative details will vary state by state, city by city, and so on, what follows are not those but the (far more interesting and useful) political processes. Ordinarily, legislation begins with a group of citizens who are concerned about a diffi- culty they have in common—it is not always so, but we might call it a social problem. Of course, self-interests can be corporate and financial; no reader should be surprised to learn of the corporate self-interest of pharmaceutical companies in lobbying Congress and the administration to deny U.S. citizens opportunities to purchase imported prescription drugs at discounted prices, or the large energy corporations in seeking con- gressional approval for oil exploration and production in government-owned wilder- ness areas that are off-limits for such ventures. Interest groups can also be convened on moral grounds for or against civil rights of minorities, discrimination on the basis of gen- der or sexual orientation, and so on.

Legislative Tasks The first task for an interest group is to define its issue clearly and achieve unanimity on what the problem is and what it wants by way of legislation, not always an easy task, by the way. It is crucial because the general public and individual legislators need to know exactly what the interest group wants if they are to give legislative and public support.

The second task is to frame a position paper that organizes the arguments (pro and con) and summarizes what is known (or unknown) about the issue or problem, perhaps seeking experts for advice. Although data and argument may not persuade every oppo- nent, they often can be used to get the support of those who are on the fence, neutral, or unmoved. The social problem analysis, familiar to readers from the first chapter of this book, is the kind of background necessary for preparing these preadvocacy position papers. It must be done carefully, with one eye on the truth and the other for the center around which political consensus can congeal. Bringing together coalitions of supporters requires compromise.

The third task in the legislative process is to create solutions for the social problem of concern, that is, a public policy, program design, or provision (benefit) that will plau- sibly correct the problem. That is not a simple task to do well; actual legislative propos- als vary from excellent to simplistic and all the way to unbelievably simpleminded. Theories that suggest interventions or resources or planning have to be converted to

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practical, financially feasible, concrete program processes and outcomes in order for legislatures to have a basis on which they can rationally decide whether the whole proj- ect has merit. Notice that legislators have to have answers to questions from their voter- constituents about the reasonableness of legislation they are being asked to sponsor, promote, or vote for. It is the responsibility of interest groups to provide their legisla- tive supporters with such answers.

The fourth task is to organize public support for their issue. In order to motivate legislators to identify themselves with an issue and recruit other legislators as well, large- scale public support is essential. Everything else pales into insignificance without it.

The fifth task in the legislative process is to convince a legislator to “sign on” to the bill in the sense of turning the social problem analysis, prospective social program de- sign features, and position papers into a legislative proposal and officially introducing (sponsoring) it as a legislative bill. Although legislative staff personnel can be very help- ful in crafting the proposed bill, only a legislator can introduce a bill. After the bill is in- troduced, it will then be referred to a committee of the legislature for study and recommendation. Committee assignment is critical. Supporters do well to have those with influence (usually other legislators) convince leadership making committee assign- ments to send it to an appropriate committee for study and recommendation. If leader- ship is not supportive of the bill, it likely will be assigned to a committee known to be a graveyard for bills. Part of the study for a bill moving successfully through this task area is a legislative hearing on the bill.

The sixth task in the legislative process is to organize appearances at the aforemen- tioned committee hearings with regard to the bill. The purpose of the committee hear- ings is for committee members to ask questions, receive answers, and debate the merits of the bill. Naturally, one function of the hearings is for the committee to gauge the amount of public support for or against the bill. It is to the interest of the supporters of a bill to turn out their fellow supporters either en masse or carefully selected depending on political strategy. Most effective lobbying groups take great care in choosing who ex- presses to legislators their point of view for or against the proposed legislation. At some point, the committee will vote on whether the bill will go forward to the whole legisla- ture for a final vote. Or it can vote to table the bill for action at a later date. That can be next week, next month, or never.

The seventh task in the legislative process is to lobby legislators, other than the one who introduced the bill, for their support when it is finally voted on by the whole (fed- eral, state, or city) legislative body. Supporters need to turn out in strength. Lobbying is most effective when it is coordinated, timed, and clear in what it wants legislators to vote for. Once again, the agenda is to show legislators why it is in their political interest to vote in a particular way on legislation.

Assuming that the bill passed into law, the last task in the legislative process is lob- bying for money (appropriations) to run the program that is contained in the legislation. It is discouraging in the extreme to work so hard for passage of legislation only to see it gathering dust when no funds are appropriated to get it up and running. So, it is neces- sary to repeat lobbying efforts in the hearings of whatever legislative committee (finance or perhaps appropriations committee) controls appropriations. No doubt, “it’s a long and a dusty road.”

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Social workers and other human service practitioners are encouraged by their professional associations to become involved in the legislative process. The National Association of Social Workers (NASW), for example, prepares policy briefs on major social policy and program issues. These policy briefs are available online at the NASW Web site (www.naswdc.org) to encourage advocacy efforts by social work professionals and students, multiple partner organizations, and media representatives. In addition to task 1 and 2 activities, social work advocates lobby legislators attend legislative sessions and provide expert testimony at committee hearings. NASW also hires professional lobbyists at the national level, and many state chapters do likewise.

The Regulatory Process Following Enactment Once legislation is passed (at whatever level of government) and appropriations made, the bill is sent to the executive branch for the chief executive officer (president, gover- nor, mayor, and so on) to sign and implement a program—put into action the provisions of legislation. It is of utmost importance that the practical public policy analyst under- stand that the actual form and substance of social programs and policies as they effect ordinary citizens are substantially created, not by legislators, but by civil servants at departmental and subdepartmental levels. Legislation usually speaks of social policies and programs in only the most general, yes, even vague, language. Thus, the period following the legislation is, very often, the most important time for detailed social program and social policy de- sign. It may come as some surprise to learn that legislators don’t design most programs. The reason has partly to do with the amount of time and expertise legislators have, but in an important way, it concerns the politics of legislation. The political reality is that the more detailed a legislative bill, the more likely that someone will find something ob- jectionable in it. Federal legislation of the 1990s providing for states to take on new re- sponsibilities for moving welfare recipients to incomes from work and wages is a good example. So, legislators will pass the issues of details on to civil servants to work out. It is slightly irrational, but there is in it a political wisdom that is charming.

Many public regulations framed by civil servants from legislation are preceded by what are called “Opportunities for Public Comments.” They might be administrative de- partment public hearings or simple notices in newspapers and community bulletins so- liciting written citizen or other public opinion on the regulations. The executive branch of government is not often required to incorporate public comments into changes in reg- ulations, but when administrative officers are aware of widespread public opinion on a regulation they might be persuaded to do so. That can mean an opportunity to influence social program design for those prepared to take advantage of it.

Role of the Judiciary The judicial branch of government can wield great power because it can tell social pro- grams the clients that must be served, can totally eliminate programs under certain con- ditions, and can entitle or disentitle citizens from benefits, among other things. The judicial branch restricts or expands the power of government administrators and officials

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so that they are consistent with past court decisions, with governmental principles, and (sometimes) with the fundamental constitutional rights of citizens. Virtually all fields of practice are affected by social and organizational policy made by judicial decisions. This includes social workers doing clinical practice, serving individuals afflicted by various kinds of emotional conditions. Certain policy created by judicial decisions prevents social work and human service administrators from doing certain things: for example, the rul- ing in Goldberg v. Kelley prevents practitioners from terminating public cash benefits without explanation to the beneficiary—an application of the citizen’s right under the U.S. Constitution to due process, of which more will be said later.1 On the other hand, a series of state court decisions has created policy that holds practitioners responsible for taking due care to notify people directly who have been specifically and personally threatened with violence or physical harm by the clients/consumers of the social worker or human services worker (Tarasoff v. The Regents of the University of California, 1976).2

Some court decisions make public policy in the sense of holding social workers and human service workers responsible for their professional actions, the explicit policy being that they are accountable to their own professional standards for competent prac- tice. Consequently, they can be sued for their actions (or lack thereof) to the fullest ex- tent allowed by law. Besharov lists a whole catalog of legal horrors that can beset the unwary practitioner:3

� Treatment without consent: a social worker and her employer were sued by a service recipient who claimed that her [the recipient’s] consent to treatment was given only because she was threatened with loss of her job if she did not complete res- idential treatment for substance abuse.

� Inappropriate treatment: “. . . half the claims for erroneous diagnosis made under the NASW insurance malpractice program were based on a charge that the client’s problem was actually medical. . . .”

� Inappropriate release of a client from hospitalization, confinement, or supervision. � False imprisonment: a client is wrongly detained or committed on the basis of false

or inadequate information given to a physician who recommended commitment. � Failure to be available when needed.

Social workers must be aware of these and other decisions not just to keep their prac- tice within the law but also to take advantage of social policies that are in the best in- terest of their clients/consumers. In addition to exercising due care with regard to confidentiality, they must be prepared to take strong positions in clinical staff discus- sions about whether to recommend commitment of a client/consumer. Not only must they be wary of participating in agency decisions that may violate a client’s civil rights, but also they must be wary of participating in those organizational decisions that vio- late social policy in their state. For example, public agencies cannot act arbitrarily and capriciously and must follow their own rules, as long as those rules are legal.4 It is particularly problematic when public agencies deliberately change administrative rules and regula- tions, thereby changing laws that Congress has enacted to affirm specific social poli- cies. That was certainly the case when hundreds of thousands of Social Security Disability Insurance (SSDI) beneficiaries were terminated “arbitrarily and capri- ciously” (illegally, the courts finally ruled) in the mid-1980s.5

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Social workers and human service practitioners need to be aware of the judiciary as an instrument of social policy as they assist in the preparation of court cases that have the potential to serve and better the interest of their clients/consumers. Practitioners can be called to testify in all manner of court proceedings—termination of parental rights, commitment and guardianship hearings, malpractice suits, disputes over public agency benefits, and so forth. It is always possible that their testimony may be crucial in court decisions that break new ground in social policy. In all these ways, social work- ers must understand that as they interact with the courts they are molding their pro- fession’s destiny.6

Ordinarily, public policy is initially framed via the political process. But the judi- ciary can modify or completely negate legislation, so the courts hold trump cards. This fact is simple evidence of the operation of constitutional checks and balances between the legislative, judicial, and executive branches of government. It is a mistake to be mis- led by the prevalent view that somehow state and federal statutes (enacted legislation) are self-revealing. Certainly, court rulings produce effects beyond those that legislators had in mind. As Ehrmann says:

The authority of a court to declare laws and official acts unconstitutional is a practice that . . . gives to judges so obvious a share in policymaking that . . . there is little room left for the pretense that judges only apply the law.7

The judiciary both creates anew and reshapes old social policy. One example is the Roe v. Wade decision, which in effect made abortion a public policy by making it legal for the public sector to provide for the cost of abortions. Another example is the final Cruzan v. Danforth decision, which as public policy denied to parents the right to remove life support from their comatose daughter who over an eight-year period had been in a persistent vegetative state. Clearly, those were not public policies made by an elected legislature, and yet they nonetheless were social policy, which has literally meant life and death to other persons. Or consider all judicial decisions on the nature and distribution of education rights and resources: Brown v. Board of Education (1954)8 and the hundreds of education desegregation court orders that followed. Of more di- rect relevance for human service and social work practitioners are decisions that (1) ap- pointed Court masters to oversee the development of treatment programs for the institutionalized developmentally disabled in Alabama (Wyatt v. Stickney),9 (2) stopped the massive terminations of Social Security benefits (cash and medical care) for the dis- abled during the Reagan administration of the 1980s,10 and (3) established welfare benefits as a new form of property to which certain property rights are attached (under specific conditions—Goldberg v. Kelley).11 As stated by Notes:

The courts in their relationship with public policy are also involved in an evaluative process . . . (which is) interpretive and not . . . political. It is impervious to electoral judgment, unrestricted by the constraints of partisan ideologies and relatively immune to the requirement of (political) compromise. The public policy values the court is free to evaluate are related to but independent from the political values which motivated the existence or absence of a statute. Parliament passes laws, courts decide what the laws mean and in so doing courts react to what they feel are the public policy values that underlie the statute.12

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Those who take the view that such decisions deform the original, pristine intent of the framers of the U.S. Constitution are likely to call such acts “judicial activism.” To them the power to make public policy belongs solely with the legislative branch, using the Constitution as a stringent framework. This chapter will assume that, whatever its mer- its or demerits or whatever its historical status relative to the founding fathers’ inten- tions, judicial activism is a reality that shapes social policy in this country and any analysis that fails to attend to it is incomplete at best.

Here are a few things to think about in understanding the judiciary as a shaper of social policy. First, in the United States, at least, courts must perform their interpreta- tive magic on a concrete case, a dispute in which at least two parties have an interest at stake and go to court to establish which interest shall prevail under the law. In short, the courts cannot act on abstract issues. In many European countries, the situation is quite the opposite: Judicial decisions can be made in the abstract, absent any legislation, pend- ing or otherwise, or absent any concrete controversy between interested parties. Sec- ond, courts can shape and frame social policy in regard to administrative rulings as well as legislation—administrative rules are interpretations made by public officials about how and when legislation is to be applied in concrete cases.

Finally, practitioners must understand the attitude taken by the courts toward so- cial science, an attitude social workers may find surprising; in fact the courts only re- luctantly accept such findings.13 Webster says that the courts are on unfamiliar ground in dealing with testimony of this kind, and that its plausibility is “. . . never taken for granted as is medicine or law itself. . . .”14 Some might not agree, but Webster is prob- ably correct that there are very few unequivocal social science findings and that be- cause those few quickly find their way into common knowledge, they lose any potential status as scientific conclusions. Not only that, but the typical social science finding is usually stated as a probability, so that individual variability is always an alternative ex- planation. That is a big problem because always and everywhere the court is concerned with unique, individual cases, not averages; the opposing legal counsel can always argue away the data of social science on the basis that her or his client is simply the plausible exception to the average case.

In court, human service personnel often make ambiguous responses, giving “it de- pends” answers because they are trained to think conditionally. However, courts want “the truth,” definite answers, a categorical yes or no.15

The power of the judiciary to shape social policy is embedded in its present power to review legislation and the decisions of public officials. That power was estab- lished in the 1800s by Chief Justice John Marshall in his opinion justifying the major- ity ruling of the U.S. Supreme Court in Marbury v. Madison,16 the cornerstone of U.S. administrative law. Marshall’s fundamental guiding principle was that the direct and current will of the people regarding laws and government must always be served. In part, he feared that legislative alliances did not always represent the will of the people. On the other hand, judicial review was one possible way to remedy the problem when legislatures went so far that they intervened in private affairs in ways that were contrary to the constitutionally established rights of citizens.17 Hence, the Marshall court also ruled that in principle, the court could intervene in private affairs, and so it became pos- sible for the U.S. Supreme Court to concern itself with abortion—with what goes on even inside a citizen’s body.

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A Simple Framework for Examining Judicial Decisions B. C. Canon’s four basic questions will be of use to social workers and administrators in understanding how judicial decisions bear on public social policy and social programs:

1. Whether and in what way new judicial decisions negate earlier legislative acts 2. The degree to which earlier judicial precedents are altered 3. Determining what specific policy consequences follow from a judicial decision 4. How new judicial decisions affect future administrative discretion

Negation of the Legislative Process. Canon suggests that if we want to think about how a new judicial decision affects public social policy, the first thing we ought to con- sider is whether and the extent to which it is a change away from whatever was directly legis- lated by a sitting or elected assembly (e.g., the Congress, state legislatures, city councils).18

One good example is the U.S. Supreme Court decision in O’Connor v. Donaldson,19 a case that marked the first time a Supreme Court decision recognized the legitimacy of the courts’ involvement in activities that earlier legislation clearly had defined to be the exclusive domain of psychiatrists (O’Connor v. Donaldson, 1975). What is relevant here is that up to the moment of the Supreme Court’s decision, state statutes had clearly as- signed to clinicians—psychiatrists in particular—the professional discretion to continue to confine citizens and determine when, where, how much, and what kind of psychiatric treatment was needed. A 48-year-old Florida man, Kenneth Donaldson, was committed to the Chattahoochee State Hospital at the request of his parents. Some fifteen years later, Donaldson and his friends were still trying to obtain his freedom. They did so over the objections of his psychiatrist, who found Donaldson dangerous to himself and others; nor was Donaldson receiving treatment that he could not have received as an outpatient. Donaldson was deprived of his liberty as a free citizen (a basic due process, constitutional, Bill of Rights issue), and the concern of the Court was whether he was dangerous. Was he competent enough to avoid “the hazards of freedom,” and could he receive the same treatment outside the hospital—conditions that might mitigate the citizen’s right to lib- erty. The Court decided that indeed he could, and in doing so, the O’Connor v. Donaldson court decision has fundamentally changed public social policy so that

. . . no longer can the professional base his decisions as to the most appropriate treat- ment modality solely on clinical grounds. He must become cognizant of such issues as whether the patient will be viewed as dangerous by a judge or jury, whether the recom- mended program will be considered adequate treatment or even treatment at all, and whether he will be considered liable for denying the patient his constitutional rights if he continues to hold him in the hospital because he considers him dangerous if a future court hearing finds the patient not dangerous.20

Notice how this Court decision changed the usual relationships between the legislative and executive branches of government, which implement legislation. The Court ruled that prior legislation was unconstitutional and required the administrative branch (in this case, public officials and professionals—probably psychiatrists employed by the state

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hospital system, usually a state mental health or institutional service—in the employ of government) to follow the Court order rather than the legislation.

Judicial Precedents. Remember that in contrast to European judicial systems, the U.S. legal system is ordinarily guided by earlier court decisions (precedents). So, in prin- ciple, the greater the departure from prior court decisions, the more we ought to consider a judicial decision to be important, all other things being equal. Let us take as an example the 1969 decision of the U.S. Supreme Court (reaffirmative in 1997), which found that state laws were unconstitutional in using a period of state residence as an entitlement rule for welfare benefits. For two hundred years all states had very stringent residence re- quirements (usually a year) for a person to be entitled to a state welfare benefit.

Residency requirements created all sorts of problems for poor and low-income cit- izens, many of whom were necessarily mobile and who qualified for welfare benefits but were not state residents. Consider what a hardship that might be if, for example, unem- ployed auto workers left Michigan with their families to go to Nebraska to look for work—perhaps an economically rational and otherwise virtuous idea. If they needed wel- fare benefits until the first check from the new job arrived, they would be out of luck— not because they didn’t need it, but because they hadn’t lived in Nebraska for a year. In short, the Supreme Court ruled that such state laws are unconstitutional because they hinder the free movement of persons, a constitutionally protected right. Furthermore, labor must have the ability to move freely in order for the economic wheels of the coun- try to grind efficiently. From the day of the Court’s decision, states cannot lawfully deny access to welfare benefits simply on grounds of the applicant’s residency.21 In this deci- sion, the Supreme Court overturned 150 years of its own precedent (and perhaps 600 years of British Poor Law).

It is an important example because it reveals that not only are abstract issues of freedom and legal rights at stake, but current and concrete agency operations are also at issue. Since the decision, state welfare administrators not only must take the necessary administrative means to stop implementation but also must prepare budget estimates of what costs the Court’s decision will impose on the state’s welfare programs. For exam- ple, eliminating the residency requirement may add more beneficiaries to welfare rolls where there are high worker in-migration rates. The other side of the in-migration coin, of course, is that it reduces the welfare budget of other states. An influx of workers may benefit a state’s economy, but a side effect is increased demand on general assistance and indigent medical care funds.

A case in point occurred in California (a leading in-migration state) when policy was enacted to help ease budgetary pressures. The California legislature passed a law (never enforced because of lower court rulings) to provide lower welfare payments to new residents than the benefit rates for individuals and families who had been residents of the state for one year or more. In 1999, the U.S. Supreme Court set another prece- dent on a residency-related public welfare issue by thwarting state plans to provide lower TANF payments to new California residents. Justice John Paul Stevens wrote for the court, “The state’s legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens.”22

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Type and Effect of Policy Concerned. Canon advises us to think about the type of social policy a judicial decision concerns and its practical effects on operating procedure and policy. These criteria will give direction to our inquiry about the practical effects of the judicial decision. The courts can and do make social policy of two types: (1) proce- dural policy and (2) substantive policy. Procedural policy has to do with rights ultimately derived—indirectly or directly—from the Bill of Rights of the U.S. Constitution: for example, all citizens have a right to a fair trial, an opportunity to confront witnesses, be informed of charges against them, and so on.

Goldberg v. Kelley is a leading example of how the judiciary creates social policy: in Goldberg, the U.S. Supreme Court held that once a benefit is legislated for citizens and administratively granted to them, that interest constitutes a type of property to which due process rights apply. Thus, in this decision, the Court created for Mrs. Goldberg (and others who follow her) a substantive right to this welfare benefit. When welfare ben- efits are interpreted in this light, it is clear that not all of them can be withdrawn by the simple act of administrative discretion. In fact, this judicial decision establishes that once welfare benefits are granted, to withdraw them after the fact, the government must pro- vide procedural rights: that is, the client-beneficiary must get advance notice of a hearing in which the action will be reviewed; furthermore, the client-beneficiary has a right to ap- pear and argue his or her point of view, have benefit of counsel, the opportunity to con- front witnesses, and so on.

The Supreme Court decided that Mrs. Goldberg had not been given such a hear- ing and ordered the (Texas) Department of Welfare to do so. Note that in addition to other constraints on their application, these procedural rights do not apply to all bene- ficiaries or to all benefit programs. Goldberg is an important type of judicially created so- cial policy if only because it obliges public organizations that administer benefits to establish fair hearing systems with due process features.23 Those features are neither trivial from the client’s/consumer’s point of view—because they can restore benefits that were illegally or unjustly terminated—nor trivial from the organizations’ point of view—because they are expensive and complicated to administer.

In summary then, analysis of a judicial decision as a social policy document should always include clarification about whether the issue at hand is one that concerns sub- stantive policy or due process (procedural) issues. It should also include an examination of the practical effects on organizational operating policy and procedures (such as the need to add to or modify fair hearing features as discussed before).

Parameters for Agency Discretion. Canon advises a fourth consideration in analyz- ing judicial decisions that influence public social policy: the degree to which a judicial deci- sion establishes policy itself rather than leaving its details to the discretion of other agencies or individuals. It is clear that with reference to the residency requirements, the Supreme Court left no discretion to state administrators—the Court order simply forbade use of this disentitlement rule. An example of how agencies are endowed with discretion is found in the Federal Appeals Court decision of the 1980s that forbade the Social Secu- rity Administration (SSA) to use its psychiatric classification as a basis for awarding or denying mental disability benefits.24 It also ordered SSA to develop a new one based on more contemporary thinking. That instance is a clear example of the Court’s leaving the

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discretion about the specific policy rule to the administrative agency and acknowledg- ing the agency’s competence and resources to do so.

Another way the judiciary can influence agency discretion is to rule on compliance with existing social policy laws. Such is the example in Olmstead v. L.C. and E.W.25 This case involves two women who have mental illness and developmental disabilities and were confined in a Georgia state hospital. Hospital staff agreed that both women were ready for discharge to the community, and they were placed on a long waiting list of per- sons qualified for community placements. L.C. and E.W. remained unnecessarily insti- tutionalized for years as they waited to be placed. In 1995, a lawsuit was filed by the Atlanta Legal Aid Society on behalf of L.C. and E.W., against Tommy Olmstead, Com- missioner of Georgia’s Department of Human Resources. The lawsuit charged Olm- stead with a violation of the Americans with Disabilities Act of 1990 (ADA). After several years of litigation, the Supreme Court was requested to decide whether unnec- essary institutionalization of individuals with disabilities is a form of discrimination pro- hibited by the ADA. In 1999, the High Court ruled that the denial of community placements to individuals with disabilities is precisely the kind of segregation that Con- gress sought to eliminate in passing the ADA. As a result of the Supreme Court ruling, states have stepped up efforts in planning for community services to ensure their com- pliance with ADA.

Other examples abound, but one of the most extreme is Wyatt v. Stickney, a 1972 federal court order that established detailed standards of care that actually redefined public policy regarding institutionalized mental patients in the state of Alabama.26 In deciding what has come to be called “the right-to-treatment rule,” the Court deter- mined that Mr. Wyatt did indeed have such a right and did not place discretion with Al- abama’s mental health program administrators to decide of what the treatment had to consist. The Wyatt standards have never been overturned. Not only did the Court mandate standards of care, but also it appointed a Court administrator for the state mental hospital in question, a magistrate or master responsible only to the Court, to enforce those standards. Part of the lesson of the Wyatt decision is about the limits of judicial activism, the big problem courts have in actually enforcing such detailed pol- icy and program provisions.

When social programs are charged in lawsuits for violations of discretion that cause harm or are otherwise not in the best interests of clients/consumers, lengthy liti- gation may be avoided through a consent decree. A consent decree requires agreement by the defendant (social program) to cease activities asserted to be illegal, agreement by the plaintiff (aggrieved party), and approval by the court. Consent decrees may, however, involve years of effort to implement changes prescribed in the agreement and require oversight by a court-appointed compliance monitor who documents whether conditions of the agreement are being met. An example can be found in a lawsuit that brought sweeping changes in the way in which Oklahoma treats children in its custody. In 1978, the “Terry D.” lawsuit was filed by Legal Aid of Western Oklahoma on behalf of juve- niles, alleging they were denied basic care and basic rights (including physical restraint and isolation) in state-operated detention facilities. A consent decree was agreed on and the State of Oklahoma set about closing detention homes, developing community shel- ters, and overhauling the state’s programs for children and youth.27 Twenty years later,

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in 1998, the court’s compliance monitor gave the final report to the judge “that the major substance of the consent decree had been incorporated into DHS [Oklahoma Depart- ment of Human Services] policy.28

Here is another example of how a consent decree changed the way a state welfare program operates its child welfare system. The R.C. lawsuit was filed against the Com- missioner of the Alabama Department of Human Resources (DHR) in 1988, on behalf of a foster child who had been diagnosed with attention deficit hyperactivity disorder. The lawsuit alleged that the DHR had not maintained systems to ensure that emotion- ally disturbed or behaviorally disordered foster children were adequately provided for when placed in the foster care system. A “System of Care” was prescribed in the consent decree, and as of September 2, 2003, approximately fifty-one of Alabama’s sixty-seven counties had achieved conversion to the prescribed system.29

Using the Canon Framework to Analyze Judicial Decisions That Create or Alter Social Policy This section looks at some other examples that reveal how Canon’s framework can help analyze particular court decisions. The issue of termination of parental rights is a good example for this purpose. Almost all states have statutes about terminating parental rights in cases of child abandonment. Widely varied, they are useful because they demonstrate how different state courts develop both very different and very similar kinds of social policies on this inherently private family matter. Here the long arm of the state intrudes into the very heart of the family, determining in the last analysis such a basic issue as who shall and who shall not remain a member of a family group. Traditionally, courts have relied on common-law criteria to make this determination—whether the parent provided materially for the child or whether the parent was abusive, for example. These criteria proceed from what is taken to be “ordinary common sense,” that is, so- cially inarguable standards for parental conduct. Of course, the social world is a very dif- ferent place these days, far removed from the simplicity of a tightly knit and traditional agrarian society on whose long-established traditions common law is built. Small nuclear families, geographic mobility, and personal catastrophes such as marital breakup or drug addiction were not a part of the reality of those times; hence, common law did not speak to these contemporary realities. Therefore, the judiciary must consider criteria from other sources in applying its broad discretion in determining whether parental behavior is an indicator of intent to abandon or an indicator that parental responsibility should be terminated.

In terminating parental rights based on concepts that are beyond common-law traditions, courts must of necessity create new public social policy (negate earlier legisla- tion). In terms of parental rights, what is at stake is not only the private rights and in- terests of the child and the parents (and the family kin group) but also the public interest in terms of guarding the integrity of a future citizen’s (the child’s) developmental life, avoiding public expenditures for foster care, ensuring that the child has not only a fam- ily identity to carry into adult life but also a family or kin group that will socialize the child to dominant values.30

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For example, a Connecticut court terminated the rights of the parents of three minor children because the parents failed to “. . . maintain a reasonable degree of inter- est, concern or responsibility as to the welfare of (their) child.”31 The Connecticut statute gave only the most general definition of abandonment: “. . . the parents’ failure to maintain a reasonable degree of interest, concern or responsibility as to the welfare of their child.” This court was forced to define it more concretely. Note the many very dif- ferent, perhaps even opposing, interpretations that could be given this abstract defini- tion. For example, some might define church attendance or corporal punishment as a necessary ingredient of “assuming parental responsibility,” whereas others might not. Ultimately, the Chignon court decided that “maintaining a reasonable degree of interest” means that a parent had to have continuous, face-to-face contacts with the child over time and, thus, this mother’s average three visits per year to the child, infrequent phone calls and letters, and moving to another state (Maryland) did not meet that standard. In applying Canon’s concepts for the analysis of judicial decisions, we first must think about the degree to which this decision departs from a directly legislated social policy. It is clear that the legislation (state statute) concerned with this matter leaves the crucial operating term “maintaining a reasonable degree of interest [in the child]” entirely undefined. The court then sets about defining the term and giving it concrete meaning, in effect acting to create law independent of the elected legislature. On that account and following Canon’s advice, we would take note in our analysis that In re Chignon is surely an impor- tant court decision with direct impact on citizens in that it sets the basic policy by which state and other social agencies deal with citizens.

In analyzing this judicial decision the second aspect to consider is whether the legal issue at hand is one that concerns substantive policy or due process or procedural issues (social policy type and effect). It would be a due process or procedural issue if, for example, the case concerned the way in which the hearing to terminate parental rights was conducted, whether the parent had competent legal counsel, received timely notification of the hearing, had a chance to confront witnesses, and so on. As the reader can see, none of those were points at issue; rather, the issue was a substantive one: How should child abandonment be defined? This tells us that it isn’t the judicial or agency procedures that will have to be reshaped but the way in which the agency defines “abandonment.”

In analyzing this judicial decision, the third aspect Canon would have us consider is the degree to which earlier court decisions are altered. Unfortunately, the material in which this decision was reported does not give us that information.32 To complete our analysis of this judicial decision, we will have to locate the decision of this Connecticut court (with the help of our nearest and friendliest law school librarian) and review it for what it has to say about other earlier court decisions on related matters.

The fourth consideration, according to Canon, is the degree to which a judicial de- cision establishes policy itself rather than leaving discretion to other agencies or individ- uals. In regard to this decision, we can answer in the affirmative. Indeed the court went to great pains to establish policy itself and did not leave the matter of defining abandonment to other agencies nor to the discretion of individual state officials. Note that this is more than just an ab- stract point: In making a judgment about this analytic criterion, officials are alerted to the fact that the law will not sustain case decisions they make based simply on their own ad

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hoc criteria. An effective and efficient bureaucracy will take steps to know the law and in- corporate it into its operating policy.

Another case (this one in Kansas) created a new social policy when the court upheld termination of paternal rights of a father for the purpose of placing the child for adoption on the basis of his negligence as a parent in attending to the child.33 Again, the court had to make a decision in regard to what counted as negligence. The decision was based on a Kansas statute, which specified that the court could grant adoptions without the consent of the natural parents where the parent failed or refused to “. . . assume parental duties for two consecutive years prior to the filing of the adoption petition.”34 The court de- cided that the parental effort met this criterion and, therefore, constituted parental aban- donment. In this case, efforts had been limited to Christmas and birthday gifts and a few telephone calls but no financial support, written communication, or other form of emo- tional support. The court created new social policy in the sense of deciding that absence of financial support, coupled with lack of emotionally significant contact, constituted parental abandonment for any practical purpose and so termination of parental rights was in order. The court was obliged to make such a determination because legislation did not define fulfillment of parental duty so that the Kansas Supreme Court had no alterna- tive but to exercise its own judicial discretion. Because U.S. courts sometimes take notice of decisions of courts in other jurisdictions as well as by earlier and higher court deci- sions, that Kansas decision could influence courts in other states.

Finally, the West Virginia Supreme Court of Appeals created new social policy in that state when it upheld the parental rights of a father.35 Whereas West Virginia Code §548-4-3 provides for termination of parental rights in the instance of abandonment, it does not contain a definition of same. The West Virginia court held that the prospective adoptive parents had not shown that the father had abandoned the child because failure to pay child support was not by itself sufficient to constitute child abandonment. The fa- ther had sent gifts, cards, money, telephoned repeatedly, paid for health insurance, and written the mother seeking visitation (subsequent to her refusal to allow visitation as a means of prompting him to pay child support).36 In analyzing this decision following Canon’s advice, we would conclude that the West Virginia court had indeed ventured beyond what the elected legislature had decided in such matters.

Canon’s next concepts oblige us to consider whether what is at issue here is a sub- stantive matter or a due process right. Clearly it is the former, because, once again, the concern of the court is with what substantively constitutes child abandonment. Note that the father did not contest the procedures by which a lower court had arrived at its decision; rather, the entire focus is on what should be considered as child abandonment and whether the father’s behavior conformed to that definition.

Using Canon’s third analytic concept, we are led to conclude that in fact the West Virginia Supreme Court did not venture far from earlier court precedents but based its decision on them, citing an earlier court decision that provided precisely the definition of abandonment upon which it could base its work. This earlier case in a local (lower) court in effect defined abandonment as failure to provide support and maintenance, visit the child, or exercise parental rights, responsibilities, and authority.37 Notice that the West Virginia legislature could have (but did not) incorporate the standards for termination of parental rights from this case into legislation on the matter. Canon’s analytic concept yields practical information because (1) once it is known, as in this case, that these crite-

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ria for abandonment are part of a whole set of precedents, they become even more im- portant as public agency operating policy in the sense that policy implementers have some certainty that the criteria will have continuity over time; and (2) the decision came (partly) from a state supreme court, which ultimately binds the lower courts with which agencies and officials have to deal.

Using Canon’s fourth analytic concept, we can conclude that, as in the earlier case law cited, the West Virginia Supreme Court did not delegate to other agencies or offi- cials the responsibility to make general policy or case decisions but took responsibility to create its own.

Summary

This chapter has shown how the power of the judiciary to shape social policy is embed- ded in its present power to review legislation and the decisions of public officials. Judi- cial capacity can influence social policy of two types: (1) policy about due process and fundamental citizen rights and (2) policy about substantive matters—who gets what, when, in what form and under what conditions, and how benefits are financed. Some basic considerations about the judiciary were presented. For example, the judiciary must consider a concrete case that represents an issue between the vital interests of at least two citizens; courts can shape and frame social policy concerning administrative rulings as well as legislation; and the courts view with reluctance and suspicion the findings of social science and experimental psychology.

Based on the work of B. C. Canon, a conceptual framework for the analysis of ju- dicial decisions with social policy relevance was given. This framework is founded on advising practitioners to be alert to four basic considerations:

1. The extent to which the judicial decision is a departure from legislation passed by a freely elected assembly.

2. The extent to which the decision concerns a due process or procedural issue, or a substantive policy issue.

3. The extent to which the decision represents a departure from prior judicial precedent.

4. The extent to which the court delegated the responsibility to other agencies or officials or took responsibility to make general policy to create its own.

N O T E S

1. J. Handler, Protecting the Social Services Client (New York: Academic Press, 1979), p. 31. 2. Tarasoff v. The Regents of the University of California, Sup. Ct. of California (July 1, 1976). 3. D. Besharov, The Vulnerable Social Worker (Silver Spring, MD: National Association of Social

Workers, 1985), pp. 2–9. 4. E. Gellhorn, Administrative Law and Process (St. Paul, MN: West, 1974). 5. D. E. Chambers, “Policy Weaknesses and Political Interventions,” Social Service Review, 42

(1987): 87–99.

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6. We are indebted to David Brown, J.D., of the legal staff of the Kansas Appeals Court, who kindly read this material and supplied this inviting comment.

7. H. W. Ehrmann, Comparative Legal Cultures (Englewood Cliffs, NJ: Prentice Hall, 1976), p. 138.

8. Brown v. Board of Education, 347 U.S. 483 (1954). 9. M. Levine, “The Role of Special Master in Institutional Reform Litigation,” Law and Policy, 8

(1986): 275–321. 10. D. E. Chambers, “The Reagan Administration Welfare Retrenchment Policy: Terminating So-

cial Security Benefits for the Disabled,” Policy Studies Review, 2 (1985): 207–215, 234–235. 11. Handler, Protecting the Social Services Client, p. 31. 12. J. Notes, “The Least Dangerous Branch,” Revue de Droit de McGill, 34 (1989): 1025–1028. 13. C. D. Webster, “On Gaining Acceptance: Why the Courts Accept Only Reluctantly Findings

from Experimental and Social Psychology,” International Journal of Law and Psychiatry, 7 (1984): 407–414.

14. Ibid., p. 410. 15. Ibid., p. 412. 16. Marbury v. Madison, 1 Cranch 137 (1803). 17. D. W. Jackson, “A Conceptual Framework for the Comparative Analysis of Judicial Review,”

Policy Studies Review, 19 (1991): 161–171. 18. B. C. Canon, “A Framework for the Analysis of Judicial Activism,” in S. C. Halpern and C. M.

Lamb (eds.), Supreme Court Activism and Restraint (Lexington, MA: Lexington Books, 1982). We have chosen to use only some of Canon’s analytical dimensions, omitting others when they seemed less rel- evant to the common practice of human service and social workers.

19. O’Connor v. Donaldson, 422 U.S. 563 (1975). 20. L. E. Kopolow, “A Review of Major Implications of the O’Connor v. Donaldson Decision,” Amer-

ican Journal of Psychiatry, 133(4) (1976): 379–383. 21. Although the Social Security Act required fair hearings for all programs funded with federal

money, it did not specify their mandatory features. 22. Sanez v. Roe, 526 U.S. 489 (1999). 23. D. E. Chambers, “Residence Requirements for Welfare Benefits,” Social Work, 14(4) (1969):

29–37. 24. Mental Health Association of Minnesota v. Schweiker, 554 Fed. Supp., 157 (D.C. Minn., 1983). 25. Olmstead v. L.C. (98-536) 527 U.S. 581 (199). 26. Levine, “The Role of Special Master,” p. 285. 27. J. Trzcinski, “Journey From Dark to Light and Then? The Legacy of Oklahoma’s Terry D.

Lawsuit,” Free Inquiry in Creative Sociology, 29(1): 27–34. 28. Associated Press, “The Norman Transcript,” January 27, 1998. 29. Alabama Department of Human Resources, R. C. Consent Decree. Retrieved from the World

Wide Web, September 2, 2003, www.dhr.state.al.us/legal/RCDecree.htm. 30. What will be lacking in using this issue as an example is the history of its legislative politics in

the initial framing of state statutes on termination of parental rights. This issue is seldom an occasion for high-profile political compromise, nor are the constituent (interest) groups either obvious or very visible. Naturally, parents themselves have a stake here, but the activist sentiments of most parents would not be engaged by a legislative proposal on an issue that for them is bound to be only potential, not actual. On that account, the political issues tend to be much more ideological, dividing legislators along lines of commitment to either the rights of parents or the rights of children.

31. In re Chignon. 32. Legal Analysis: “Infrequent Contacts with the Child, Grounds to Terminate Parental Rights in

Abandonment Cases,” 8 ABA Juvenile and Child Welfare Reporter (December 1989): 157–158. 33. Matter of Adoption of B.C.S., 777 P.2d 776 (Kan. 1989). 34. Kansas Statutes Ann. §59–2101(a)(1). 35. In the Matter of Adoption of Schoffstall, 368 S.E.2nd 720 (W. Va. 1988). 36. Ibid., p. 164. 37. Ibid., p. 158.

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