Townsend v. Swank

PETITIONER:Townsend
RESPONDENT:Swank
LOCATION:Former Ada County Courthouse

DOCKET NO.: 70-5021
DECIDED BY: Burger Court (1971-1972)
LOWER COURT:

CITATION: 404 US 282 (1971)
ARGUED: Nov 08, 1971
DECIDED: Dec 20, 1971

ADVOCATES:
Donald J. Veverka – for appellees
Michael F. Lefkow – for Georgia Townsend
M. James Spitzer, Jr. – for Loverta Alexander and others pro hac vice, by special leave of Court

Facts of the case

Question

Audio Transcription for Oral Argument – November 08, 1971 in Townsend v. Swank

Warren E. Burger:

We will hear arguments next in number 5021, Townsend against The Illinois Department of Public Aid.

Mr. Lefkow, you may proceed whenever you are ready.

Michael F. Lefkow:

Mr. Chief Justice and may it please the Court.

The State of Illinois makes payments under its federally subsidized program of Aid to Families with Dependent Children, to needy dependent children between the ages of 18 to 21 years old, attending a vocational or technical training school, but denies payments to children attending a junior college, a college or a university.

The issue in this case, is whether the discrimination is inconsistent with the requirements and the purposes of the Social Security Act and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

Mrs. Georgia Townsend and her daughter Omega were a family within the meaning of the Act and Omega was a dependent child, but they were cut-off and denied any aid under the AFDC program while they met all the requirements, specified by Congress.

Appellant’s rely on this Court’s decision in King versus Smith which invalidated Alabama scheme of absolute disqualification of eligible children on the fiction that they had a substitute father.

There, Alabama defined parent in a manner inconsistent with the Act and with its purposes.

Illinois likewise, has defined dependent children in a manner inconsistent with the Act and its purposes, by totally excluding from AFDC benefits, children attending a college or university.

We believe that King clearly prohibits the Illinois’ absolute disqualification.

A reading of King requires an interpretation of the definitional section for Section 406 (a) that it is mandatory upon the State of Illinois to provide some aid to all those defined by Congress as dependent children.

This requirement on the States was affirmed by this Court in Dandridge versus Williams.

That in order to avoid violating the statute itself, a state must provide some aid to all eligible families and all eligible children.

Now, we submit that in addition to these two cases, there are a number of other important reasons why this statute is mandatory.

One is the plain meaning of the statute.

Another, is necessary to make a mandatory to avoid frustrating the purposes of the Act.

It is necessary for harmonious construction of the Federal Statutory Scheme.

It is necessary because of the legislative history.

It is necessary to avoid an Equal Protection violation and it is necessary to prevent Illinois from withdrawing from this part of the AFDC program.

I will return to the plain meaning of the statute.

The state has asserted that it had discretion whether it wants to adopt the definitional Section of 406 (a).

We submit that there is — the plain wording of the statute grants the state no discretion.

A similar section, Section 407, would on its face grant the state discretion to participate in the unemployed or underemployed program which was added to the Act in 1961.

And this Court has stated in King versus Smith that that particular Section 407 is optional with the state, but there is nothing on the face of the statute in 406 (a) to indicate that the state has discretion to pick and choose among the children made eligible by Congress.

We submit that the legal standard for testing a state’s compliance is the Act itself.

Next, it is necessary to make it mandatory to avoid frustrating the purposes of the Act.

The purpose of the Act is interpreted by this Court in King, is for the protection of dependent children.

That is the paramount goal and Congress in 1964, in amending the Social Security Act, stated that the assumption that children are no longer dependent, is not valid as applied to children still attending school.

Further, by denying these children —

Warren E. Burger:

What if they were 25 years old and attending graduate school, would the argument be the same?

Michael F. Lefkow:

They will not be eligible, Your Honor, because Congress did not make them eligible.

Warren E. Burger:

That is my point, is that a denial of Equal Protection?

Michael F. Lefkow:

I do not believe that it would be, Your Honor.

Warren E. Burger:

Why did — but it is if you are dealing up to 21, is that it?

Michael F. Lefkow:

In terms of the Equal Protection, it is if you distinguish between children attending a vocational or technical school and those attending a college or university up to the age 21.

In determining violation of the Equal Protection, you have to take into consideration the purposes of the Act and the purpose of this Act is to provide AFDC sustenance benefits up to age 21.

So measured in terms of purpose of the Act, a denial to college and university students would be a denial of Equal Protection because we submit that there is simply no rational basis for what the state has done by saying that if much it says over the door of the school to technical or vocational school, we are not going to grant these children aid in spite of the fact, that much technical or vocational education is provided in junior colleges, colleges and universities.

In fact, the State of Illinois and the Federal Government fund junior colleges in Illinois to the tune of $ 6.5 million a year to provide technical or vocational education and these children are excluded from participating in that because they do not have the money to have the food and the clothing and the shelter they need, so they can attend these schools.

We would further point out —

Harry A. Blackmun:

Mr. Lefkow, is it your position that the difference in receiving the aid under AFDC and not receiving it makes the difference between going to school or not?

Michael F. Lefkow:

Yes, Your Honor that would be our position.

Because all AFDC does, Your Honor, is provide, bring a person up to a minimal living level so that they have enough money to subsist on for food, for clothing and for shelter.

It does not provide any additional benefits.

Although I will point out that in this case, the child that has been in a technical or vocational school, the State of Illinois will pay a substantial tuition to these private schools.

But, and this education, same education is available in a junior college.

In effect the taxpayer is paying twice by Illinois’ arbitrary distinction between by having the over the door requirement, so that is —

Harry A. Blackmun:

Is your position here that Omega would have gone to school had she been able to obtain the AFDC benefits?

Michael F. Lefkow:

She did go to school, Your Honor and she is in school today.

Harry A. Blackmun:

Well then, conceding that is not your lawsuit merely one for a certain amount of money?

Michael F. Lefkow:

Yes, Your Honor that is what AFDC eligibility is.

It provides money for sustenance benefits.

We pointed out in our brief that she and her mother had been forced to live at an intolerable level of existence.

Her mother is a very sick woman, suffering from systemic erythematosus.

They live on about 15 cents a meal.

They have no — hardly any furniture in their house.

They are suffering terribly and no child should have to go through that in order to obtain an education and that is what Congress meant by making sure that the sustenance benefits would be available for them.

And I would further like to point out that what Illinois has done is pause on this allocation of Federal Resources, Congress has determined that Federal funds should not flow to these children.

But Illinois has prohibited that and has unduly limited the welfare rules in Illinois by approximately a thousand children a year, who may want take advantage of this provision.

I further like to point out that the legislative history of the Act shows that Congress has continually expanded eligibility to meet rising educational requirements and opportunity as they become available in our society.

In 1935, the child had to be under age of 16.

Michael F. Lefkow:

In 1939, Congress amended it to under 16 or under age 18, if the state determines the child is in school.

In 1956, Congress lifted the school age requirement.

In 1964, they reinforced the school age requirement and in 1965, they added the college and university so that the child could be attending in effect any school.

As long as he is attending any type of school in pursuit of an education between 18 and 21, he would be eligible for these benefits.

We would further like to point out that it is necessary for this Court to hold that this Section 406 (a) is mandatory because the section itself says, when used in this part, part (a) which is Title IV of the Social Security Act, these definitions are used throughout the whole Title of the Act and Section 402 (a) (10) which requires the aid to be furnished with reasonable promptness combined with Section 406 (a) clearly mandates this child should receive some aid.

In King versus Smith, the Court said in combination of these two sections clearly require that some aid be furnished.

In Dandridge versus Williams, this Court held that a state may allocate among those who are already on the rolls, but it must provide some aid to all eligible families and all eligible individuals.

I think it is clear from the Court’s opinion, Dandridge, both the majority and the dissent that the one thing everybody has agreed on, is that Congress fixes the federal eligibility requirements.

That it was Congress to determine who is dependent and the states are allowed to determine who is needy.

The states have ample opportunity to protect themselves from adverse fiscal impact under this Court’s decision in Rosado, allowing percentage reductions and in Dandridge allowing the imposition of maximum grants.

So there is no — the State of Illinois need to suffer no harm by a reversal of this opinion.

In an effect, as I pointed out in my reply brief, the fiscal effect on the State of Illinois would be minimal.

It would be approximately $500,000.00 a year and the Federal Government would point, put up the $500,000.00 a year making a total of approximately $1 million.

We would also like to point out to the Court that the state’s purpose of encouraging employability which the state and the Court below has a whole purpose of the state statute denying assistance to college and university children, was to encourage employability.

But we will submit that rationale under this Court’s decision in Shapiro is not permissible or not logical.

In Shapiro, the court said that, encouraging employability was no justification for imposing one year residency requirement.

That if you are going to impose that type of requirement, you would have to impose that not just on the ones who moved to new residence, moving into the state, but all the residence and we submit the same type of logic applies in this case.

That if you are going to require a child to go to work just because he is in college and university, it is only fair then for technical or vocational schools, that same standard to be applied.

However, I want to point out that HEW has clearly prohibited working requirements while the children are attending school between the ages of 18 and 21.

Byron R. White:

While your statutory argument was brought out I suppose if — no, it would be the same if Illinois did not give grants to the children over 18, who are attending vocational school?

Michael F. Lefkow:

That is correct, Your Honor, that is still mandatory.

Byron R. White:

Yes, it still be mandatory but your Equal Protection argument would not obtain?

Michael F. Lefkow:

That is correct, Your Honor.

That is exactly right.

Byron R. White:

So you think that both the Federal Government and the state may fail to give grants to students over 16?

Michael F. Lefkow:

No, I do not believe that the state —

Byron R. White:

Entirely?

Michael F. Lefkow:

No, I do not believe —

Byron R. White:

Let us assume the Federal Government though said that the Act did not require or did not even contribute to grants for children over 16?

Michael F. Lefkow:

Alright, what is your question then, Your Honor?

Byron R. White:

Well, would there be any denial of the Equal Protection of the law in such a law?

Michael F. Lefkow:

I do not know, if I understand your question correctly —

Byron R. White:

I will put it the other way.

Suppose the Federal Government, and suppose the Section 406 went up to age 18, but went no further?

Michael F. Lefkow:

Yes.

Byron R. White:

And the state, went up to 18 and went no further, any denial of Equal Protection?

Michael F. Lefkow:

Not in terms of this case, Your Honor.

In another words, the college and university students with children over age 18, there would not be a denial.

Byron R. White:

Even though, most of the children over 18 would be in college and most them under 18 would be in high school?

Michael F. Lefkow:

That is right! But you see, in this case Congress has made a determination.

Byron R. White:

I understand that, I was just trying to find out your Equal Protection Argument?

Michael F. Lefkow:

I see.

My time has expired.

Byron R. White:

I am sorry.

Michael F. Lefkow:

I would like to reserve two minutes for rebuttal.

M. James Spitzer, Jr.:

Mr. Chief Justice and may it please the Court.

I should like to begin with the statutory argument and I should like to address initially.

I should submit that in viewing the statutory argument, one has to look at it in the framework of the AFDC program.

That Illinois, in excluding college children from the definition of dependent children, but including other forms of post-secondary education, that is post-secondary vocational education, has done something which has the unfortunate effect of perpetuating poverty which is clearly contrary to the purposes of the Act.

Warren E. Burger:

Is the vocational education uniformly post-secondary as you have described in —

M. James Spitzer, Jr.:

Uniformly, no sir.

But it is both post-secondary and not post-secondary.

They do — Illinois definitely does provide post-secondary vocational training.

In those instances where children did not attend college, however, I am including here the junior colleges, public community colleges, because both of the named appellants here did attend public community colleges.

These colleges are the only free schools that I know of in the State of Illinois.

The vocational institutes, the technical institutes that are included in the appendix to the appellee’s brief, are all tuition paying Institutions with the tuition payments of up to $3,800.00.

I should emphasize here, that we do not suggest or intimate that there is a requirement to pay tuition.

Though in fact, Illinois does under some circumstances.

In this case, the children involved, the appellants, the named appellants were attending free schools supported by state and federal moneys.

All that is involved here is their basic subsistence grant.

M. James Spitzer, Jr.:

I say all that is involved here, but obviously that grant covers their food, which they need to eat, shelter and clothing, the real essentials of life.

It should not be against it.

We differ slightly with the position of the other appellants in this case on the statutorily argument.

It is not our position that the definition is mandatory in every instance.

We recognize that Congress has in certain instances, indicated very clearly and unmistakably, at least in my judgment, that the program was intended to be optional and the states were to have a choice of either going into it or not going into it.

An example of this is involved in this case, and that is the extension of the 18 to 21-year-old group, was in my judgment clearly optional that the senate report stated under existing law, states at their option may continue payments to needy children up to age 21 in the Aid to Families with Dependent Children program.

Then it goes on, however, providing they are regularly attending a high school in pursuance of a course of study, leading to a high school diploma or its equivalent.

The committee added an amendment extending this provision, referring to the Educational requirement provision, so as to include needy children under 21 who are regularly attending a school, college or university.

In other words, the program which is optional is the extension of AFDC to the age 18 to 21-year-old group, but the educational requirement provision is different and that was instituted according to the report which was deleted from the references by the Solicitor General and the appellees in their brief.

It is included in our original brief in our reply brief on page 9 that the educational requirement provision and the extension of college students was to bring the educational requirements more nearly in line with the provision of the bill relating to the continuation of a child’s benefits under the OASDI System which is mandatory.

Then it goes on; the objective of the provision, that is the educational requirement provision and the amendment to include colleges is to assure as far as possible that children will not be prevented from going to school or college because they are deprived of parental support.

In the Solicitor General’s brief, the Solicitor General states, that the department referring to the Department of Health Education and Welfare, believes that the omission of college children from AFDC may have the unfortunate effect of perpetuating poverty.

That in viewing the statute, one must be view it, in terms of its purposes and in terms of its structure and we submit that under both standards, it requires reading this provision as being mandatory.

Potter Stewart:

Mr. Spitzer, what is OASDI?

M. James Spitzer, Jr.:

This is the Old Age Survivor’s Benefits and Social Security Act also.

These are the payments where —

Potter Stewart:

It is not involved in this case?

M. James Spitzer, Jr.:

No, it is not, but the reason why I mentioned and it is included in the committee report and these provisions were done in tandem, that Congress evinced a clear purpose to make the provisions as nearly alike as possible.

That the college requirement’s provision was added to AFDC because it was done in OASDI and they wanted to make the two as nearly as like as possible and that is the only reason why I mention that.

No, it is not directly involved in this case though.

As soon as the bill was passed and completely in line with the Solicitor General statement that it will have the unfortunate effect of perpetuating poverty and in line with the senate report, the Department of Health Education and Welfare in its handbook interpreted this and they state that within the age limit set by the state; this is at page 5 of our brief, within the age limit set by the state, there should be a choice of attending a school, college or university or taking a course of vocational or technical training for gainful employment.

I think, it is very, very important to recognize here, the educational structure in Illinois as such that vocational training and one of the chief weapons used in order to obtain vocational training for people are public community colleges.

We have submitted as an appendix to our brief, the college catalog for these junior colleges.

There are courses such as air conditioning, inhalation therapy.

These children are being denied the right to attend these courses.

The entire role of vocational education in a state is being moved into this area.

In terms of the question earlier, if Congress had decided to cut it off at age 16, there clearly is no Equal Protection violation involved.

If they had cut it off at age 18, there would not (Inaudible), but Congress has not done that here.

Congress has identified a group of people whom it considered needy and in need of federal protection, it defined them and call them dependent children, and provided financial aid to them.

Illinois participates in the program, receives huge amounts of federal money and still attempts to exclude some of those people that Congress wanted to provide benefits to.

M. James Spitzer, Jr.:

We submit that this is wrong.

We submit that this frustrates the purpose of Congress.

Byron R. White:

You are saying that if the state wants to move in to that 18 to 21 category at all, it must support all those children in that age group?

M. James Spitzer, Jr.:

That is correct.

Byron R. White:

If they are going to any kind of the school?

M. James Spitzer, Jr.:

That is —

Byron R. White:

Although they could exclude them wholly?

M. James Spitzer, Jr.:

They could exclude the 18 to 21-year-old group wholly.

That within the standards established by the department of HEW, they must take everyone within that group.

Byron R. White:

It is an all or none thing?

M. James Spitzer, Jr.:

That is correct.

I think that is the only possible reading of the Act.

Indeed when you look at the Legislative History of the Act —

Potter Stewart:

That they must and also that they have, that Congress has?

M. James Spitzer, Jr.:

That is right.

Potter Stewart:

They use that too?

M. James Spitzer, Jr.:

That is right.

Potter Stewart:

And I think, I am not sure, if (Inaudible) would address himself to the constitutional issue and that would be that the state must do it, but certainly your statutory argument is that Congress has done it?

M. James Spitzer, Jr.:

That is right.

Our statutory argument is that Congress has done it and our argument in terms of the Equal Protection Clause, is that in view of what Congress is done in the AFDC program.

Potter Stewart:

The state violates the Equal Protection Clause by discriminating difference as among 18 to 21-year-old —

M. James Spitzer, Jr.:

That is correct.

Potter Stewart:

Well, I thought you were arguing that the state by supporting only prior of the 18 to 21-year-old group in school, is going contrary to the Social Security Act?

M. James Spitzer, Jr.:

I am arguing both positions here, Mr. Justice White.

Byron R. White:

A supremacy argument and (Voice Overlap)

M. James Spitzer, Jr.:

That is absolutely correct.

As I read the Equal Protection Clause and as I read Dandridge, when one views classifications made within the state, they must be rational, but they must also be rational within the framework of the program in which the classification is made.

This is particularly true in this case, where you have a total exclusion of some children from a federally defined class.

We do not have a kind of case as in Dandridge where everyone received some benefits.

And the Court went out of its way to point that out, it seems to me.

M. James Spitzer, Jr.:

Whereas here, we do have this total exclusion; there is no doubt that the state has a justifiable interest in protecting its fiscal integrity and in conserving its AFDC resources.

We do not challenge that here.

What we do challenge is whether they have chosen the appropriate vehicle for so doing.

That is whether they can do this by excluding children from the class or whether they must provide at least some benefits to everyone and simply reduce if they must, the level of benefits.

The Department of Health Education and Welfare has taken — argues that King does not require that the definition of dependent children be read as a Federal definition requiring the states to participate wholly.

They argue that the term parent in King was is some way essential to the purposes of the Act and that there was a clear congressional intent to include all those children with an absent parent and the state could not define parents in a way contrary to the Social Security Act which in its legislative history meant legally obligated to support.

And in Lewis against Martin, there was a man assuming the role of a spouse who was actually living in the house, there was none of the fiction involved in King of a casual sexual liaison or whatever.

Here, we actually have a man in the house, living their and assumed the role of a spouse, but the Court said that children where a man lives there cannot be totally excluded from this program.

It seems to me that that requires this Court to say, that the definition was mandatory, that it has been held to be mandatory.

In Dandridge, the Court suggested that the definition was fixed by Federal Law and if it is fixed by Federal Law, then the state can have absolutely no right whatsoever to exclude some of those needy children from the program.

The Doctrine of Equitable Treatment which is advanced by the Department of Health Education and Welfare to explain King creates a total anomaly.

They have devised a doctrine without standard.

The cases which they have taken positions on cannot be squared in my judgment.

King was required, Lewis was required in Arizona where otherwise eligible children living with relatives not having legal custody over the child and where the child had a sibling living with his natural parents were excluded from the Act.

In these cases, the Department of Health Education Welfare concedes that the states went to stray and they have violated the federal definition and improperly excluded needy children from that definition.

But in the educational requirement which the senate report indicates clearly in my judgment, was intended to provide benefits to college children, to make sure that needy children, deprived of a parent were not denied the right to an education in college, at least where the state goes into the 18 to 21-year-old program.

And it emphasizes that by saying as far as possible that those children can be excluded, that in Carter against Stanton which will be heard next by this Court, they interpret continued absence of being optional with the states and that where the parents have deserted or have been separated from the house for less than six months, the state is free to exclude needy children.

There is no standard here we would submit.

In sum, that when one takes a look at the purposes of this Act, and when one takes a look at the classification that is involved here whether one looks at it in terms of the definition of dependent children under the Supremacy Clause or that when one looks at the difference between vocational training which is post-secondary and college training which is post-secondary, all of which end at the age of 21, neither of which involved tuition payments.

We can see no rational difference whatsoever.

What we do find is we find a concerted effort to keep certain poor people from attending free public and publicly supported institutions.

We find that an intrusion into the family and its right to determine the child’s education which has an effect on the child’s entire future.

We think that this is tragic and wrong.

We think does the Solicitor General that this tends to perpetuate poverty.

We ask for this case to be reversed.

Potter Stewart:

How many others states Mr. Spitzer, in addition to Illinois have done this, any other state?

M. James Spitzer, Jr.:

Nine other states.

Potter Stewart:

Nine other states and how and the other 40 states have done this?

M. James Spitzer, Jr.:

There is a wide variety of programs.

Some states do not enter into the 18 to 21-year-old category at all.

Potter Stewart:

At all.

M. James Spitzer, Jr.:

Some have gone into age limit.

Some only extend up to the age of it of 19 rather than to 18.

Byron R. White:

Today — would you think that would be proper?

M. James Spitzer, Jr.:

I do not think that that is proper, no sir.

Byron R. White:

Not under your definition?

M. James Spitzer, Jr.:

That is right.

I believe that once they go into the 18 to 21-year-old category, they are in it.

Byron R. White:

Well, I thought your position was that, your statutory argument was that they had to go in it and go all out into it?

M. James Spitzer, Jr.:

Now on my statute argument they do not have to go into the 18 to 21-year-old group.

Potter Stewart:

But if they do?

M. James Spitzer, Jr.:

They have to go all the way out.

That is correct.

It is my position and to answer that question also however, under the Equal Protection Clause, I have no doubt that cutting off 19 does satisfy.

William O. Douglas:

May I ask, looking at 606 (2) (a) (10), why is it you say that you do not have to go into that statute under the 18 to 21?

M. James Spitzer, Jr.:

Under the term law is that 606 (2) (a) (10) requires all eligible individuals to be given aid and dependent children is included under 606 (a) (2) (B) includes the 18 to 21-year-old group.

The only reason why I say that they do not have to be included, and I read it from a plain reading of the statute, they should be.

When one looks at the senate reports and the house reports, committee reports, there is a clear legislative intent it seems to me.

Potter Stewart:

That is about an option?

M. James Spitzer, Jr.:

That is right.

It said that there is an option.

William J. Brennan, Jr.:

There is, I see that an option to go in or not but —

M. James Spitzer, Jr.:

That is right.

William J. Brennan, Jr.:

But does the legislative history supports the position that if they go in at all, they must go about —

M. James Spitzer, Jr.:

They refer to the 18 to 21-year-old extension as a program.

They say that the program is optional.

They say that the provision is designed to bring into line with OASDI and that the provision, that is the Educational Requirement Provision, is to make certain that states who implement such a program for payments, will extend it to school or college and that children will not be prevented from going to school or college because they are deprived of parental support.

That is the reason why I take that position is one of the only exceptions in the Act that I can find in which there is any kind of clear legislative intent to make the program optional.

Warren E. Burger:

Thank you, Mr. Spitzer.

Mr. Veverka, you may proceed.

Donald J. Veverka:

Mr. Chief Justice and may it please the Court.

I would like to first point out that although AFDC benefits were cut-off at the time that these children attended a college or university that they were provided with general assistance funds.

I believe the issue before this Court —

Potter Stewart:

That was wholly a state program?

Donald J. Veverka:

That is true, Your Honor.

Potter Stewart:

The general assistance funds?

Donald J. Veverka:

I believe the issue before this Court is whether the Equal Protection Clause or the Supremacy Clause requires the states to participate fully in the federal AFDC program regardless of their financial condition.

I think this is contrary to the congressional intent which provided that the programs would be implemented or that financial assistance would be provided, as far as practicable under the conditions in each state.

I think it is somewhat important to know that Illinois’ involvement in this case is not because that it has cut grants, as a matter of fact, Illinois provides a 100% of need or not because that it has established any strange eligibility requirements, but simply because it adopted a classification which was originally established by Congress in 1964.

Now, prior to 1964, the federal definition of a dependent child was a child under 18.

Then in 1964, Congress amended the definition and it defined a dependent child as someone under the age of 18 or someone under the age of 21 who is attending a high school which would lead — a high school course of study which would lead to the diploma or vocational training school which would lead to gainful employment.

At the time that Congress amended its definition of a dependent child, Illinois similarly amended its Public Aid Code to provide essentially the same definition.

And in 1965, one year later, Congress again expanded the definition but unfortunately, the financial conditions in State of Illinois and the nine others states have not allowed it to expand the definition.

Although Congress has consistently, since 1940, recognized that the state does not have to expand its benefits every time that Congress expands its definition of a dependent child.

For example, in 1940, the age limit was 16 and Congress raised the age limit of a dependent child from 16 to 18, and at that time the House Report stated, it is estimated that about a 100,000 additional children may obtain the aid by virtue of this change provided all states amend their laws accordingly.

This is set forth in our brief on page 36.

Byron R. White:

Well, you would not think that Congress could or that the state could say give support payments to just half of the children under 16?

You would not take just in terms of being able to limit the state’s investment that will take every other child and give him support?

Donald J. Veverka:

No, that is true, Your Honor.

Byron R. White:

Well, if Congress says that here are matching funds to provide education for students over 18 in vocational schools or colleges and the state says well we will — you would not think they could just say half of the students in those categories we will support and the other half we will not?

Donald J. Veverka:

I think, Your Honor that if the state adopts a classification established by Congress that here is the right and Congress, I think has expressly recognized the fact that it has the right to take the same steps as are established by Congress.

I think that if it adopts the same requirements that Congress require, the same requirements that Congress adopts, it is acting rationally.

And again, I think that the test is rationality held from time to time when Congress has expanded the definition of what it is a dependent child.

For example, my recollection is that when they expanded it from 16 to 18, there was a requirement that they would be in school.

So the point is, is that Congress is taken this step, has taken this approach throughout the time that it is expanded the definition from time to time as it expanded.

Byron R. White:

Well, I understand, I understand that, but when they expanded it up to the 18-21-year-old category, they said that 18-21-year-old students who are attending vocational school or college?

Donald J. Veverka:

No, at the time that they first made the classification, it was vocational and technical school.

Byron R. White:

Yes.

Donald J. Veverka:

And then a year later, it was expanded to include kids who are in colleges or university.

Byron R. White:

So as it now stands, the definitions is students in vocational schools or in colleges?

Donald J. Veverka:

That is true, Your Honor.

Byron R. White:

And that is the congressional category that the Act defines?

Donald J. Veverka:

That is true, Your Honor but at the same time that they did that and at all times that they have expanded that definition, they have made it clear that the state can expand it if the financial conditions are as far as is practical under the laws of the state.

I believe that a state can take that approach as long as there is a rational distinction and I believe that there is a rational distinction here between the classification which Congress originally set up in 1964 and classification which is later adopted in 1965.

I was referring to the time that —

Thurgood Marshall:

(Inaudible) why you draw this line?

Donald J. Veverka:

Pardon me?

Thurgood Marshall:

Between the vocational, you said a minute ago that you go to high school, then you come out with a diploma and you go to vocation school, you come out with a job, what do you mean by that?

Donald J. Veverka:

Your Honor, I think that under the history of Social Security Act, Congress has recognized the fact that not all —

Thurgood Marshall:

Well, number one, do you get a diploma out of vocational high school or not or Illinois is different?

Donald J. Veverka:

I believe you do get a diploma, Your Honor.

Thurgood Marshall:

But why do you draw the difference?

You say one, you get a diploma and the other you get a job?

Donald J. Veverka:

Well, I draw that distinction because of the fact that normally, you speak of the diploma in terms of a formal type educational as opposed to vocational or technical type.

You do get a diploma of some kind.

Thurgood Marshall:

But you think there is a deputy in MIT and all that?

Donald J. Veverka:

No, I do not believe so, Your Honor.

Thurgood Marshall:

Is it just true that you want these poor people just to be limited to jobs that are trained skills, is that what you want?

Donald J. Veverka:

No, Your Honor.

Thurgood Marshall:

And you want to preclude liberal arts people?

Donald J. Veverka:

No, Your Honor.

Thurgood Marshall:

To get money?

Donald J. Veverka:

No, Your Honor.

I think that it is recognition.

I think that the fact that Congress picked up this category in the first place in 1964 and the way in which they did it.

I think that it was a realization that there are some who are not interested in a high school course of the action in formal education as we know it.

Thurgood Marshall:

Well, let me ask this?

Does a child in vocational school eat less food than a child in a high school?

Do they not eat the same food?

Donald J. Veverka:

That is true, Your Honor.

Thurgood Marshall:

Do they not wear the same clothes?

Donald J. Veverka:

That is true Your Honor.

Thurgood Marshall:

And do they not have the same needs, exact same needs?

Donald J. Veverka:

That is true, Your Honor.

A child in vocational and technical school and a child in high school and that is exactly my point.

Thurgood Marshall:

Or the child in college has the same problem?

Where do they changes so suddenly?

Donald J. Veverka:

Your Honor, it changes because —

Thurgood Marshall:

Is your theory that a poor child does not need a college education?

Donald J. Veverka:

No, that is not true, Your Honor.

The point that I am make is that if the State of Illinois had a $100 to give to someone and it had to take its choice between a child who is say 8-years-old and a 20-year-old child, that is true that under the definition of what is needy and I might point out that someone who is needy may be a 22-year-old or 23-year-old, it may involve —

Thurgood Marshall:

We are not dealing with that?

Donald J. Veverka:

— any particular age.

Thurgood Marshall:

We are dealing with two children that are eighteen-and-a-half-years-old.

One of them is in a vocational school and the other is in first year college.

One of them needs to eat and the other one does not?

Donald J. Veverka:

That is right, Your Honor.

Thurgood Marshall:

Thank you.

Donald J. Veverka:

Your Honor, but the difference is they have the same needs but the State of Illinois is filled in a different way.

The fact is, that when somebody graduates from high school and gets a high school diploma and enters the junior college or a college, he then is eligible as opposed to a child in vocational or technical school, he is then eligible to get tuition and grants.

A child who in technical or vocational school, has the same needs but he is not eligible because in most cases, he does not have a high school diploma and that is the key.

The difference between —

Thurgood Marshall:

You have to add another one, they are both eighteen-and-a-half, and one of them is in technical school and the other has graduated from high school but he just barely made it, and he is not capable of any scholarship aid.

What happens there?

Donald J. Veverka:

Under the Illinois scheme of providing grants, he does not have had to show the superior capacity.

The requirements for a tuition require that he be on the upper half of his class and that he —

Thurgood Marshall:

Well, are the children here get any tuition?

Donald J. Veverka:

Pardon me, Your Honor.

Thurgood Marshall:

Are the named appellants in this case are getting tuition?

Donald J. Veverka:

Neither one ever applied for a scholarship or a grant.

Thurgood Marshall:

They did not?

Donald J. Veverka:

No, they did not, Your Honor.

But they would get one automatically if they did?

Donald J. Veverka:

Your Honor, the grants are based solely —

Thurgood Marshall:

I thought you said they got it automatically.

Donald J. Veverka:

If they applied for it, Your Honor.

Thurgood Marshall:

They would automatically get scholarship aid?

Donald J. Veverka:

Based on financial needs, grants are based solely on financial needs.

Thurgood Marshall:

There is no question here, they need financing.

They meet the requirements.

So you say all they have to do is right now for a grant, to apply for the scholarship aid and they will get it?

Donald J. Veverka:

If they are a high school graduate, which they are.

Thurgood Marshall:

But I understand that this school here, they do not require it, they do not pay tuition?

Donald J. Veverka:

That is true, Your Honor.

Thurgood Marshall:

But how does that tuition help them?

How does scholarship help them in a school that does not have tuition?

Donald J. Veverka:

In addition of the scholarships, there are also grants under the —

Thurgood Marshall:

What grant?

Donald J. Veverka:

— the Illinois States Scholarship Commission, this was established in 1957.

Now, under that commission, the legislature set up a whole series of scholarships, grants and guaranteed loans which were designed solely for financially needy.

Now, a child —

Thurgood Marshall:

Was that for the course of schooling or course at home?

Donald J. Veverka:

That is for schooling.

Thurgood Marshall:

Well, I understand they do not need and they do not need to pay for their school?

Donald J. Veverka:

That is true, Your Honor, but in addition of the scholarship, they can also get grants.

Thurgood Marshall:

What is the grant?

You mean, they need grant for clothes?

Donald J. Veverka:

Your Honor the statute is silent on that.

I attempted to find out.

I do not know.

Thurgood Marshall:

Right.

Donald J. Veverka:

I understand that as a practical matter if the child is in a technical or vocational school and he is expected to pay tuition for example, which may be $850 or $900, as a practical matter, he is in approximately the same position as somebody who is attending a college, who is getting a grant to cover expenses at a college, but is not getting the living expenses.

We have provided — State of Illinois has provided aid in two different areas, but essentially, they have equalized the conditions.

The point that I am attempting to make is that if the State of Illinois had a $100 to give and it had a choice between an 8-year-old child and a 20-year-old child, now both of them could fall within the technical definition of what is a needy child in the sense that they are making less than the standard of need.

But the fact remains that if we assume that Illinois has $100 and it chooses to give it to the 8-year-old, I do not think it could be said to be arbitrary that it chose to give that $100.00 to the 8-year-old as opposed to 20-year-old.

The point being that even among those who are technically classified as needy, there are some who are more in the need of help than others.

The point is that here, those who are in technical or vocational school, although, they are technically as needy as somebody who is in a college or university, those children are still less in need of number one because it is more likely than not the kid in the technical or vocational school does not have a high school degree which means that he has no choice, he cannot get into a college or university.

He can only get into a technical school.

Secondly, he is not in as much need because of the fact that when he gets that high school degree, when he gets into a college or university, he is then available for this tuition which of course, would not apply in the case of a junior college and the grants in the guaranteed loans and especially the grant.

So as a matter of fact, the child who is in a technical or vocational school, educationally under most state is at a distinct disadvantage because of the fact that he cannot get the same assistance.

And again the point is, that a child, their high school degree does mark the difference between a child who is more in need of help than the other child.

And again, I would like to get back to the fact that in 1965, now when Congress established and expanded the definition, at that time, it pointed out and this is contained on pages 36 and 37 of our brief that under existing laws, states at their option may continue payments and then the Senatorial Committee Report went on to say federal sharing for this purpose would thus be available to states who implement such a program, for payments to children regularly attending a college or university as well as those attending high school or vocational school.

But Congress has made it clear that the states can as finances allow develop the program as long as there is a rational choice and again, I believe that there is a rational choice.

Counsel was candid enough to admit that we are talking about not only post-education, post-high school education but also the equivalent and for time that Congress originally established this classification, if you examine the classification as they set up, they spoke in terms of someone who is attending a high school and the course of study which would lead to a degree or vocational or technical school which would lead the gainful employment.

I think the point is that Congress at this time realized the fact that not everyone that the state was concerned with that not everyone that Congress was concerned about was somebody who would want to go back in high school and get a degree.

I think it was concerned about the kid who drops out of high school and finds that he has no aptitude for it and desires instead to go to a vocational or technical school.

But I think that we are not talking about the same class of kids.

I think that the principles of this Court has enunciated on a number of occasions that the state can attack as much of a problem as its finances allow.

Now, no discussion would be complete without a picture of the situation in Illinois that exists now because of a substantial increase, applied full increase in the AFDC cases, Governor Ogilvie announced that there is a $108 million overall deficit in the welfare programs and specifically $107 million deficit in state funds.

Now, the Governor was faced with either cutting grants and in the report which he submit in October 1971, he spoke in terms of one-third cut in the standard of need as opposed to a 100%, giving a 100% standard of need they would mean roughly 67 or 70% standard of need.

In an attempt to alleviate this problem, what he did was he transferred funds from the General Assistance Funds, General Assistance Fund which is truly a state program into AFDC, he transferred $21 million and this is then met the AFDC budget.

Now, litigation resulted and as of this time, the governor has been enjoined from carrying out this program.

But the point is that at this time, there is a possibility of cutting the standard of need in AFDC cases.

We do not believe that the constitution requires the State of Illinois to take the money, assuming that this is the condition, we do not believe that the constitution requires the State of Illinois to take money from the 8-year-old and the 9-year-old and the 10-year-old and give it to a 20-year-old basketball player.

We believe that we have helped those who are most in need under Illinois law, namely those without the high school degree, those who say in a period of a short time could become employable within one employable report, we believe that the State of Illinois has acted rationally.

We believe that Congress has realized every time that it has expanded the definition.

From 1940 on they have expressed the opinion that the states were free to either adopt the amendments to expand the programs or not to.

HEW, the administrative body which administers the Act is here before this Court.

They filed an amicus curiae brief.

They have taken the position that the states are free to implement a program as its finances allow.

Donald J. Veverka:

In light of the views that Congress has expressed, the states are free to either expand their programs or not expand their programs and again as was pointed out, there are substantial number of states which do not comply 100% with the federal program which have not expanded the federal program.

Warren E. Burger:

How long are these vocational — is there a fixed period of the vocational training in Illinois under this program?

Donald J. Veverka:

It depends on the course and the appendix which I had support in my brief.

I took the Chicago area of vocational schools and I listed the course and their lengths of time.

In addition to that, I have cited in my brief that the report of the — it was by House Committee on Education and they found that, it was a Republican Task Force on Education and they found that the average length of a vocational school was with approximately four months to a year which is another point.

If somebody attends a junior college, we are talking essentially about a two-year program and again one thing I would like to mention is that the classification which plaintiffs sought to, — which the plaintiffs represent is not the two-year college student but rather a four-year college student.

This is the classification which they established in their pleadings and this I believe is the issue before this Court.

Also, the plaintiffs indicated the course of study which would have required a period of time far in excess of the two years.

Omega Minor will finish in about five-and-a-half years and the other plaintiff indicated that he intended to go on for a period of four years.

So again, the point is here that in a technical or vocational school, not only is it more likely than not that you have someone who does not have a high school degree, and therefore, is more in need of help but you also have a situation where the state can provide AFDC benefits for a period of perhaps four months to a year and be assured that at the end of that time that there is some chance that the recipient will no longer need the help of the state.

But going at to the point again, Congress has said every time that has amended the Act, the states are free to either expand the definition or not expand the definition.

HEW has defined or has made similar statements, they have set forth their views in the regulation which is cited in our brief and in that regulation, they have said that a state is free to — they have said specifically in their brief on page 39 that although the public assistance titles to find the coverage in which the Federal Government will participate financially, a state may provide coverage on a broader or more limited basis.

And in later views expressed by HEW and by Congress, we believe that the plaintiffs are asking for relief which both Congress and HEW has thus far refused to grant.

For this Court to grant this extended coverage would be contrary to the principles that is enunciated on a number of occasions that in the statutory construction case, its function is not to implement its own views, but rather to carry out the will of Congress and Congress has manifested its will that the states are free to do this.

Furthermore, I would point out that Congress can grant the relief which the plaintiffs are seeking, by passing the timely Assistance Act.

Now, the difference between this Court granting the relief sought by the plaintiffs and Congress achieving the same result, that under the family assistance plan, if this is done, if aid is extended to those in colleges or universities as well as those in technical or vocational schools, under the Act as it stands now, the Federal Government would provide additional funds other than what it now provides.

Of course, it now provides funds on a 50-50 basis under a portion of that the Family Assistance Act, it would fund 100% as opposed to 50%.

I believe that this is a realization by Congress that not all of the states can fully implement the Act and that if Congress wants the uniform system of welfare across the entire nation that it will have to provide additional benefits.

In conclusion, I would like to say that this Court recognized in Dandridge that eroding employability and saving funds were legitimate state ends.

The appellee submits to the Court that the course of the action which they have taken is rationally related to each of these two ends.

The state, we believe has made a reasonable choice.

We do not believe that the constitution requires the state to take money from the 8-year-old, the 9-year-old and the 10-year-old to take part of those benefits and share those benefits for the 20-year-old basketball player.

We believe that the other class is more needy.

The state has helped those and we believe that the state has acted constitutionally.

For these reasons, we ask that the decision of the Court below be affirmed.

Thank you, Your Honors.

Warren E. Burger:

Thank you.

You have consumed all your time, I think.

Let me see.

Yes your time is all consumed counsel.

Warren E. Burger:

The case is submitted.