Representing race outside of explicitly racialized contexts.

• Author: Cahn, Naomi R.
• Position: Symposium: Representing Race

INTRODUCTION

Welfare "as we know it" ended in 1996,(1) a victim of a conservatism that views welfare recipients as lazy and immoral. One aspect of welfare that is, however, unlikely to experience radical change is child support.(2) More vigorous child support enforcement has become an increasingly important component of federal welfare reform bills over the past two decades because of the twin hopes of fiscal and parental responsibility: first, that child support will reimburse welfare costs, and second, that fathers will take more responsibility for their children.(3)

Child support programs within the welfare system perpetuate a negative perception of poor people. Many individuals assume that poor men and women are uncooperative -- that women would rather stay home on the government dole than collect child support or find work, and that men have left their homes and are unwilling to support their children. These images of poor people are not just class based; they also rely on stereotypes of gendered and raced behavior.

This essay argues that we must challenge the gendered and raced images in welfare reform cases by making explicit the stereotypes that inform public welfare regulations. Even though such advocacy may not change the actual outcomes of the cases, it can begin to change the rhetoric, raising public awareness of the effect of such programs. Ultimately, advocates can take apart the raced and gendered spaces in which poor people live, allowing them both to stay at home and to leave the home. Representation in welfare reform litigation, then, allows advocates to point out the racialized aspects of their cases. It shows the relevance of race to litigation claims and the litigation process.

As an introductory matter, I want to connect my essay with others in this Symposium. Unlike many other participants, I am examining an issue that is not explicitly race based. There are white and black recipients of welfare; this article is not about violence between the races, or about competition for jobs between the races, or even about litigation between parties who belong to different racial groups. Although welfare reform is not an explicitly raced issue, I want to use it to show the implicitly raced nature of various forms of representation. The goal of this essay, then, is not just to discuss substantive welfare reform; I also would like to examine critically the role of race as it appears throughout the representation process.

How, then, is representing welfare recipients "raced"?(4) There are several different levels of response that interweave substantive law and lawyering concerns. First, notwithstanding the numbers, the public perception of welfare is raced black.(5) Thus, regardless of the actual impact of Aid to Families with Dependent Children ("AFDC") regulations, their implementation is perceived as affecting blacks, even though this perception does not reflect reality. Indeed, welfare reform can be seen as an attempt to control poor black women.(6) Thus, although welfare is not explicitly raced, it is implicitly a raced issue.

Second, African Americans are disproportionately recipients of welfare; they are disproportionately poor, and disproportionately in single-parent households.(7) Thus, even though blacks do not constitute the majority of public welfare(8) recipients, welfare has a disproportionate effect on the African-American community.(9) It follows, then, that African Americans will constitute a significant number of legal-services clients, and that welfare reform will have a significant impact on them.

Third, the legal system is overwhelmingly white. Over 85% of the legal profession is white; only 3.3% is African American.(10) The legal services lawyers who do much of the welfare representation are white; given the race of low-income people, there will be interrace (as well as intrarace) representation.(11) In addition, judges are overwhelmingly white, meaning that a black plaintiff will, most likely, face a white judge. And, as studies of race discrimination in the courts show, racial biases infect the American judicial process.(12)

Fourth, all representation can be raced.(13) Each of us has a race, even though whites tend to think that everyone except them has a race,(14) or else they find it difficult to confront the role that race plays in their own lives, a role that is very different from the role that race plays in the lives of people of color.(15) Thus, the mere fact of representation implicates race, regardless of the race of the client or the actors in the legal system. Race will inevitably affect how the representation is conducted.(16) The interaction between the lawyer and the client, and the decision whether to make race an explicit issue in a complaint, are "infected" by race consciousness.(17)

Finally, welfare reform lawyering shows how race might appear in lawyering, when the actual legal problem is not explicitly about race. Although the legal issues in welfare reform do not appear to involve particularly racialized issues because there is no interracial conflict -- unlike, for example, with affirmative action -- the "race question" still needs to be asked. How then should race be represented in this lawyering? Is it appropriate not to mention race? When advocates describe their clients, or when judges write opinions, where is race?(18) It is this issue -- the tension between making race explicit, and not mentioning it at all -- that is at the core of this article. It could be that discussing race, even when it, for example, invokes existing stereotypes of blacks, will be beneficial to black plaintiffs, and therefore justifiable;(19) or it may be that the stereotypes are too destructive.(20) Thinking about race in the context of welfare lawyering may focus too much attention on the negative images of black recipients. On the other hand, and especially in light of all of the reasons that this representation process is "raced," why not make it explicit? Yet, given that legal issues in welfare reform affect all races, does race really matter?

In thinking about how to represent race in welfare lawyering, I hope to draw some lessons more generally for litigation in which race issues otherwise might not seem visible. My goal is to explore the implications of an ethic of race consciousness in a variety of different contexts. This essay is, then, concerned with representing race on two different, albeit intertwined, levels: the first is law reform, and the second is lawyering reform. Part I briefly discusses the relationship between child support and public welfare, and then focuses on the requirement that welfare recipients cooperate in establishing child support. Part I first shows how the cooperation requirement itself represents various negative images of black men and women, and then explores how courts have addressed these images when confronting legal challenges to the cooperation requirement. By rereading these decisions Part I demonstrates how race and gender are absent and appear not to affect the litigation process. Part II examines gender theory and shows the gendered nature of these different representations of black men and women. Finally, Part III suggests methods for challenging the legislative and judicial representations of black men and women portrayed through the cooperation requirement, and discusses reasons to consider making representation raced.

1. CHILD SUPPORT: AT HOME WOMEN(21) AND ABSENT MEN

   In contemporary culture, public welfare,(22) race, and gender are integrally connected. While it is true that, proportionately, there are more African American recipients of welfare than white recipients, and proportionately, there are more blacks living in poverty than whites, the majority of AFDC recipients nevertheless are not black.(23) Yet the media routinely depict welfare recipients as African-American women, and, correspondingly, as lazy and immoral.(24) Race has also affected the distribution of welfare benefits -- the history of AFDC shows repeated attempts to exclude African Americans through morality requirements.(25)

   AFDC recipients are also gendered: they are mothers,(26) and they are unmarried. Statistics show that single mothers comprise ninety-five percent of the adults on AFDC.(27) Historically, however, all unmarried women and African American women were generally excluded from welfare because of their failure to comply with morality requirements.(28)

   Aid to Dependent Children ("ADC") was part of the Social Security Act of 1935, although its roots reach far earlier. Attempts to provide support for the children of morally worthy widows first received national attention at a 1909 White House Conference on Children.(29) Illinois enacted a Mother's Aid Law in 1911, which provided money to women so that they could mother their own children; the law limited eligibility to widows who were American citizens.(30) Thirty-eight states had enacted similar legislation by 1919.(31) The actual benefits received from these programs were highly variable -- not only did a large percentage of potentially eligible mothers not receive aid, but the amount received was generally insufficient to allow women to stay home as full-time mothers.(32) Moreover, in light of the morality standards written into such laws, large categories of women could not receive aid. Only three of the laws allowed unmarried mothers to receive pensions,(33) and, in a 1931 study, the U.S. Children's Bureau found that ninety-six percent of the recipients were white, and only three percent were black.(34) After the enactment of ADC, blacks continued to be excluded through morality requirements;(35) "man-in-the-house" rules(36) simultaneously discouraged the formation of two-parent families while policing the behavior of single women.

   The history of aid to poor women is thus replete with attempts to control their lives by conditioning public welfare on their compliance with...