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June 30, 1972

Fannie JEFFERIES, individually and on behalf of all other persons similarly situated, Plaintiff,
Jule SUGARMAN, as Commissioner of the Department of Social Services of the City of New York, and George K. Wyman, as Commissioner of the Department of Social Services of the State of New York, Defendants

The opinion of the court was delivered by: HAYS

HAYS, Circuit Judge:

In this class action Mrs. Jefferies *fn1" challenges the validity of New York Social Services Law § 131(4) (McKinney's Consol. Laws, c. 55, Supp. 1971 *fn2" and regulations adopted pursuant thereto, 18 N.Y.C.R.R. §§ 385.1, 385.7. *fn3" Mrs. Jefferies claims that the application of these provisions allows mothers who are enrolled in "vocational" training programs to receive welfare benefits if they are otherwise eligible, and denies such benefits to mothers who, except that they are enrolled in an "academic" course of instruction, are similarly situated and that these provisions thus applied violate her rights to due process and equal protection of the law, infringe her first amendment rights by penalizing her for going to college, and conflict with the federal Aid to Families with Dependent Children program, 42 U.S.C. § 601 et seq. (1970). Maxine Handel, Pearl Woods, and Alice Woods (hereinafter referred to as the Westchester plaintiffs), were permitted to intervene over the defendants' objections. *fn4"

Mrs. Jefferies purports to represent the class of "parents of minor children who are otherwise eligible for public assistance [AFDC] but who are denied such assistance on the grounds that they are enrolled in 'academic' rather than 'vocational' education programs and [are] therefore deemed available for employment." She is the mother of one child, and the father is absent. Before September, 1969 she was employed as a typist at a salary of $125 per week, and was not receiving any public assistance. She left her job to enter Queens Community College with the aim of becoming a teacher, aided by a full-tuition scholarship under the federally sponsored "College Discovery Program." She received emergency assistance from the New York City Department of Social Services from September 11 to December 11, 1969, at which time benefits to both her and her child were terminated, pursuant to the provisions of state law challenged here, because she refused to accept employment. In a Decision After Fair Hearing, benefits for the child were reinstated, but the denial of benefits to Mrs. Jefferies was affirmed. The defendants urge that since she already has shown the ability to be self-supporting, she is not "otherwise eligible for welfare" and thus does not adequately represent the class she claims to represent. We disagree; since her child is "both needy and dependent," Doe v. Swank, 332 F. Supp. 61, 63 (N.D. Ill.) (three-judge court), aff'd mem. sub nom. Weaver v. Doe, 404 U.S. 987, 92 S. Ct. 537, 30 L. Ed. 2d 539 (1971); Doe v. Shapiro, 302 F. Supp. 761, 764 (D. Conn. 1969) (three-judge court), appeal dismissed as untimely docketed, 396 U.S. 488, 90 S. Ct. 641, 24 L. Ed. 2d 677 (1970), the household is within the purview of the AFDC program, and she has standing to raise the issue of whether she can be denied benefits for refusal to accept employment while attending college, while those attending vocational schools and who refuse employment continue to receive benefits.

 The Westchester intervenors are in a different situation, and they perhaps present the issues in this case more clearly than does Mrs. Jefferies. They have from three to six minor children each and, since their husbands left the home, have continuously been receiving welfare benefits even when they have been employed. Thus, unlike Mrs. Jefferies, they have no history of being self-supporting in the regular economy. Each of them, with the approval of her caseworker, enrolled as a full-time student in a four-year college program, with a specific vocational objective. In June, 1971 each was advised that her welfare benefits would be terminated unless she enrolled in vocational training courses under the federal Work Incentive Program (WIN), 42 U.S.C. §§ 602(a)(19), 630 et seq. (1970).

 By now it is well settled that legislative classifications in the welfare area are not subject to the rule requiring "strict scrutiny." "If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.'" Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 1161, 25 L. Ed. 2d 491 (1970), quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 55 L. Ed. 369 (1911). See also Jefferson v. Hackney, U.S., 406 U.S. 535, 92 S. Ct. 1724, 32 L. Ed. 2d 285 (1972). Applying this standard to the case at hand, we cannot find that the "academic-vocational" distinction embodied in New York's welfare practices violates the equal protection clause. See Money v. Swank, 432 F.2d 1140 (7th Cir. 1970). Plaintiffs urge that the distinction is irrational in view of the purpose of the AFDC program to make families self-supporting, because college graduates are more employable than persons who have merely received vocational training. The statistics cited to us show that of approximately 25,000 welfare recipients receiving vocational training, only about 2,000 have become employed, and of those many continue to receive assistance, though this is principally because of the income exemption provisions of the Work Incentive Program, 42 U.S.C. § 602(a)(8)(A)(ii) (1970). However, this proves only that the WIN program in New York is not working very well, not that it would work any better if the state disregarded the distinction between academic and vocational training.

 Furthermore, it appears from the deposition of defendant Wyman, and from the regulations, 18 N.Y.C.R.R. § 385.1(4) (a recipient is not "employable" if enrolled in an approved "two-year college program with a specific vocational objective") that the distinction in New York is really between two-year and four-year programs. It is urged that even this classification operates irrationally, since some recipients will need pre-vocational training before they enter a two-year program, and thus will receive assistance for more than two years, while a recipient who has less than two years of a four-year program to complete is denied benefits. However, it is clear that the distinction is based upon the state's desire to use its limited welfare funds to secure at least some useful training to a larger number of people, and not to assist persons whose education has gone beyond a certain point. We cannot say that such a policy is irrational. It is true that there is dictum in Townsend v. Swank, 404 U.S. 282, 291-292, 92 S. Ct. 502, 30 L. Ed. 2d 448 and n. 8 (1971) that might be thought to be contrary, but at least as applied to these facts it is entitled to little or no weight.

 The plaintiffs' contention that New York is infringing on their first amendment rights is plainly frivolous and need not detain us further.

 Having found the plaintiffs' constitutional claims to be without merit, we remand the case to Judge Tenney, who sought the three-judge court, for consideration of the pendent statutory claims. Rosado v. Wyman, 397 U.S. 397, 402-403, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970). See also Wyman v. Rothstein, 398 U.S. 275, 90 S. Ct. 1582, 26 L. Ed. 2d 218 (1970); Boddie v. Wyman, 434 F.2d 1207, 1208 (2d Cir. 1970), aff'd mem., 402 U.S. 991, 91 S. Ct. 2168, 29 L. Ed. 2d 157 (1971).

 TENNEY, J., dissents in part in separate opinion.

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