The Legal Environment of Social Work

The Nature of Law

Societal rules that establish correlative rights and duties between individuals and between an individual and the state provide a framework of rights and duties. (Correlative rights and duties are mutual and reciprocal, so that if I have a duty not to trespass on your land, you have a correlative right that I not do so.) These rules help to avoid the violence and chaos that would result if individuals set and attempted to enforce their own laws. The rules of a society are applied through its legal system.

As educated individuals, we understand many things about the legal system in the United States. We know that we must register in order to vote in elections; that we must verify the seller's title to a property when we buy a house, and that we cannot be forced to testify in a criminal trial if we would incriminate ourselves. However, as social workers, we need more specific legal information because our profession operates as a legally recognized activity and because our professional activities often serve individuals whose legal rights have been ignored or abused.

Law is a useful tool in social engineering. If, as Alexander de Tocqueville asserted, political questions in this country end up in court, the significance of law as a weapon for social change cannot be overestimated. The more clearly social workers understand this, the more creative they can be in using law to remedy social ills.

Events occurring throughout the centuries of Western civilization highlight how legal rules have been refined in practice and demonstrate that mature societies as well as developing ones need the order and security that an organized legal system imposes.

In Old Testament times in Israel, the injunction to leave gleanings in the fields, which allowed the poor such as Ruth and Naomi to feed themselves, is an example of an early public welfare system. The Ten Commandments that Moses brought down from Mt. Sinai are examples of laws governing interpersonal relationships.

Hammurabi, king of Babylon from 1955 B.C. to 1913 B.C., devised an early civil code regulating property rights and family relationships. Although the code's governing principle was retaliation—an eye for an eye and a tooth for a tooth is an idea of retribution with us to this day—its protection of the weak and poor from the rich and powerful was particularly just and humane.

In 450 B.C., when Romans wanted the law written down rather than trust the memories or whims of judges, they created the Twelve Tables. These were at first simple written rules for a basically agricultural community, but Roman law gradually became more sophisticated, adding law for conquered territories and establishing equality under the law for plebeians as well as patricians. From 528 to 534 A.D., Justinian, an emperor of Roman Byzantium, directed the compilation of the Corpus Juris Civilis. The foundation of European law for the next thousand years, it still supports the civil law system now operating in most of Europe and in many other parts of the world, including Louisiana and Puerto Rico.

Roman civil law was private law that governed relations between individuals, not those between individuals and the state. It included matters of status, such as relationships between parent and child and husband and wife, and other rights and duties of private citizens.

The common law, which is the basis for the Anglo-American legal system, developed in England after the Norman Conquest. As judges heard disputes, they created substantive rules for deciding similar cases. They used canon (religious) law, local customary law, and other accepted standards when they could and created new rules for unique situations. The emerging principle of stare decisis, "the decision stands," obliged later judges to use existing precedents to settle disputes before them. In this fashion, a body of positive law was established.

In civil law systems a judge is not bound by stare decisis. The judge applies written principles to the facts but may look to prior cases with similar facts in doing so. If there is no written principle, which is unusual, the case is decided according to equity, that is, by fair and impartial decision. In the United States a judge who is examining a set of facts against the constitutional principle of due process of law is engaging in a kind of civilian method of interpretation.

DEFINITION OF LAW

What is this law that was so long in developing? Blackstone, an 18th-century English jurist, defined law as "a rule of civil conduct prescribed by the supreme power of the state, commanding what is right and prohibiting what is wrong" (Jones, 1973). Article 1 of the Louisiana Civil Code states, "Law is a solemn expression of legislative will." Both these definitions express the basic idea that law is a body of rules created by whatever authority has the power to do so, whether legislative body or judge. The laws are made known either through publication of statutes or through written opinions of judges.

However, these definitions are inadequate. Who commands? What if the legislative will is arbitrary and capricious? The Soviet legal system had well-defined rules of civil conduct, prescribed by the supreme power, yet under them, political dissenters might be incarcerated in mental hospitals for their beliefs.

The Justinian compilation reduced the doctrines of law to a simple precept: Honeste vivere, alterum non laedere, sum cuique tribuere, that is, "to live honorably, not to injure others, to render to every man his due." If this is a reasonable basis for a legal system, consider whether ours accomplishes these goals.

Natural Law

The doctrine of natural law, a legal philosophy that presupposes certain immutable laws, responds to the need for a standard of justice and a method for evaluating positive law. Our law contains features of natural law: "We hold these truths to be self-evident; that all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness." The social work principle of self-determination follows natural law philosophy in its relation to the formal ideal of human dignity.

But to whom are "these" truths self-evident? Are all men created equal or only white men? What about women? Is there a place for civil disobedience or passive resistance in a legal system? Does our Constitution provide a satisfactory method for evaluating a law that has a negative impact some individuals? Because the nature of law is not easily defined, legal philosophers continue to examine it (see, for example, Bodenheimer, 1962).

Substantive Law

Over the centuries, Western nations, states, and empires tried and discarded various legal systems, eventually developing common substantive rules. Substantive law is that which creates and defines the rights and duties of an individual. Examples typical of most legal systems are the right to dispose of property by sale, the obligation of parents to support their children, and the duty of the state to protect the helpless from exploitation. Meanwhile, procedural law formulates the rules by which the substance is tested in court.

Contract

One of the divisions of the substantive law developed to handle frequent concerns is contract. Contract is a binding agreement to do or to refrain from doing some lawful thing. For such an agreement to be legally (as opposed to morally or socially) binding—enforceable by law so that its breach may incur money damages or an order for specific performance—certain elements must be manifested. First, there must be an agreement between parties legally capable of making it. Then the agreement must cover some bargained-for element that has a legal object. Finally, there must be consideration, what each party gives up in order to get some thing from the other party.

Contracts need not be written; we enter contracts every day without giving them a great deal of thought. A purchase at the supermarket is a contract. If you are planning to set up a private social work practice, you will encounter myriad situations—leasing an office, hiring a receptionist, having a telephone installed—all of which involve entering into contracts.

Consider an employment contract: The employer and the prospective employee must agree on the terms of employment, hours to be worked, rate of pay, and other specifics of the position. The consideration is the promise that the employer makes to the employee to hire and that the employee makes to the employer to work—that is what has been bargained for. Hiring someone to work for pay is a legal object; you cannot make an enforceable agreement to break the law. A capable party does not refer to an individual's ability; legal capacity refers to age, mental competence, and the legal authority of an artificial person, such as a corporation, which has been granted legal authority to function.

The use of the term contract as it currently prevails in social work does not refer to a legally enforceable agreement. Agreements between student and supervisor or worker and client on common goals and how they are to be accomplished are often described in the literature as contracts. Maluccio and Marlow (1974) discussed contract from a social work viewpoint. The article emphasizes the need for clarity in defining goals in social work practice, a useful discussion of the need for explicit contract terms. In law if the terms of a contract are so ambiguous that there is no concurrence of wills, there is no contract (see also Murdaugh, 1974; Seabury, 1976). These agreements are commendable, but law is very precise in its use of language. To speak of such an agreement as a contract when no legal sanctions punish its breach is inaccurate—no matter how valuable it may be to set goals and conscientiously work together toward them.

Torts

This division of the substantive law imposes legal responsibility for reparation for harm done to another person. There is no agreement here, but rather a proscription by society as a whole of certain harmful behavior and the imposition of sanctions for that harm, usually money damages. An act may be both a crime and a tort. Tort is the civil remedy available to the injured party, as opposed to criminal sanctions, which are enforced through the district attorney in the name of the state.

The theory of tort allows restitution to the victim or through an injunction, an order of a court that the offensive behavior be discontinued. To prove that you deserve redress in a tort case, you must prove that (1) another person had a duty to take reasonable care in the situation; (2) the other person breached that duty, causing you injury; and (3) failure to honor that duty was a direct cause of the injury.

Because society is constantly changing its assessment of which harmful behaviors entitle the victim to damages, torts is a dynamic field. Invasion of privacy could not be imagined two centuries ago in a rural society when individuals longed for neighbors. Today, as technology has increased, invasion of privacy is recognized as a tort. Similarly, in a simpler society purchasers could go directly to sellers for reparation for harm caused by a defective product; today, they must seek out manufacturers and even retailers who may be hundreds of miles away.

Although social workers recognize the harm they may cause, some wrongs cannot be redressed by money damages. Ingratitude, for instance, is not a harm the law would recognize, although some forms of emotional abuse, difficult as that is to define, are recognized as a legal wrong.

An example of the dynamic nature of torts is the recent development of the tort of wrongful life. Zepeda v. Zepeda, the first case to allow damages for "wrongful life," was decided as recently as 1963 (see chapter 9). Similarly, a dramatic explosion in product liability occurred when asbestos suppliers, car manufacturers, and other commercial entities were found liable for large compensatory and punitive damages for the harm caused by their products.

Malpractice—the practice of a profession so negligently as to harm a client—is a tort. Social workers who are negligent, even those not in private practice, may be responsible for money damages in an action in tort; damages have been awarded against social workers in public agencies for negligent practice.

In addition to private law, such as contract and tort, which governs the relations between individuals, public substantive law may govern relations between individuals and the state. Government income maintenance programs, criminal law, and child protection services are examples of public law. It is important to understand the concepts that protect the individual against arbitrary enforcement of substantive laws by the state. Two vital instruments for protecting individual rights are due process and equal protection.

Due Process

Due process, like the pursuit of happiness, is a phrase with an old and noble history. The barons who forced the Magna Carta on King John demanded due process in their dealings with the king. In the United States the phrase is included in both the Fifth and Fourteenth Amendments to the Constitution. It has been the vehicle for gradual implementation of basic rights whose fullest enjoyment is a social work goal.

Due process has both substantive and procedural aspects. Substantive due process requires nexus—a connection—between the means selected to correct a particular evil and the end to be achieved, and the means must be inherently fair. The concept is vague and flexible, permitting courts to adjust the law to changing moral attitudes in society. Substantive due process is not applied much in the 1990s as a constitutional doctrine. The courts generally defer to the wisdom of lawmakers, unless the means they call for are arbitrary and capricious.

Procedural due process has to do with how a party to a lawsuit or an administrative proceeding is treated and how legislation affects such proceedings. It includes an individual's right to timely legal notice of proceedings, the opportunity to cross-examine witnesses, the right to the assistance of an attorney at trial—in other words, it requires fair play in the methods by which legal rights and obligations are implemented.

To illustrate the difference between procedural and substantive due process, suppose the legislature wished to reduce the number of automobile accidents. One tactic would be to forbid all blue-eyed people to drive. Because this would greatly cut down on the number of drivers, it would reduce the number of accidents, but the means is both arbitrary and capricious. It would violate substantive due process because there is no rational connection between eye color and the incidence of automobile accidents.

Cutting highway speeds to 55 miles per hour to reduce accidents is also arbitrary, but it is not capricious. Although there is no great difference between 56 miles per hour and 55 miles per hour, the rule is not inherently unfair, as is the rule banning blue-eyed drivers.

A substantively sound statute making it a crime to drive a car faster than 55 miles per hour could not provide, on the other hand, that anyone caught speeding would be put in jail for six months with no trial; the denial of a trial would be denial of procedural due process. Nevertheless, although severe, the penalty of six months in jail for driving one mile over the speed limit could be imposed after a trial if society considered the evil great enough to justify the penalty.

Goldberg v. Kelly (1970) illustrates how due process is used to decide a case:

Goldberg v. Kelly

397 U.S. 254, 90 S. Ct. 1011 (1970)
Brennan, J.
The question for decision is whether a state which terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the due process clause of the Fourteenth Amendment.

. . . . .

The constitutional issue to be decided, therefore, is the narrow one whether the due process clause requires that the recipient be afforded an evidentiary hearing before the termination of benefits. . . .The district court held that only a pre-termination evidentiary hearing would satisfy the constitutional command, and rejected the argument of the state and city officials that the combination of the post-termination "fair hearing" with the informal pre-termination review disposed of all due process claims.

. . . . .

Appellant does not contend that procedural due process is not applicable to the termination of welfare benefits. Such benefits are a matter of statutory entitlement for persons qualified to receive them. Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are "'privilege' and not 'right.'" The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be "condemned to suffer grievous loss . . . ." and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication.

. . . . .

It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing. But we agree with the district court that when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process. . . . For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. . . . Thus the crucial factor in this context—a factor not present in the case of. . .virtually anyone else whose governmental entitlements [are] ended—is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy.

Moreover, important governmental interests are promoted by affording recipients a pre-termination evidentiary hearing. From its founding the nation's basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty. This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not merely charity, but a means to "promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." The same governmental interests which counsel the provision of welfare, counsel as well its uninterrupted provisions to those eligible to receive it; pre-termination evidentiary hearings are indispensable to that end.

Appellant does not challenge the force of these considerations but argues that they are outweighed by countervailing governmental interests in conserving fiscal and administrative resources. These interests, the argument goes, justify the delay of any evidentiary hearing until after discontinuance of the grants. Summary adjudication protects the public fisc by stopping payments promptly upon discovery of reason to believe that a recipient is no longer eligible. Since most terminations are accepted without challenge, summary adjudication also conserves both the fisc and administrative time and energy by reducing the number of evidentiary hearings actually held.

We agree with the district court, however, that these governmental interests are not overriding in the welfare context. The requirement of a prior hearing doubtless involves some greater expense, and the benefits paid to ineligible recipients pending decision at the hearing probably cannot be recouped, since these recipients are likely to be judgment-proof. But the state is not without weapons to minimize these increased costs. Much of the drain on fiscal and administrative resources can be reduced by developing procedures for prompt pre-termination hearings and by skillful use of personnel and facilities. . . . Thus, the interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the state's interest that his payments not be erroneously terminated, clearly outweighs the state's competing concern to prevent any increase in its fiscal and administrative burdens.

. . . . .

We also agree with the district court, however, that the pre-termination hearing need not take the form of a judicial or quasijudicial trial. We bear in mind that the statutory "fair hearing" will provide the recipient with a full administrative review. Accordingly, the pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department's grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits. . . . Thus, a complete record and a comprehensive opinion, which would serve primarily to facilitate judicial review and to guide future decisions, need not be provided at the pre-termination stage.

The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard. It is not enough that a welfare recipient may present his position to the decision maker in writing or second-hand through his caseworker. Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not afford the flexibility of oral presentations, they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The second-hand presentation to the decision maker by the caseworker has its own deficiencies. . . . Therefore a recipient must be allowed to state his position orally. Informal procedures will suffice, in this context due process does not require a particular order of proof or mode of offering evidence.

. . . . .

In almost every setting when important decisions turn on questions of fact,
due process requires an opportunity to confront and cross-examine adverse witnesses. . .Welfare recipients must therefore be given an opportunity to confront and cross-examine the witnesses relied on by the department.

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel...." We do not say that counsel must be provided at the pre-termination hearing, but only that the recipient must be allowed to retain an attorney if he so desires.

. . . . .

Finally, the decision maker's conclusion as to a recipient's eligibility must rest solely on the legal rules and evidence adduced at the hearing . . . . To demonstrate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on. . . though his statement need not amount to a full opinion ... and, an impartial decision maker is essential. . . . We agree with the district court that prior involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decision maker. He should not, however, have participated in making the determination under review.

Affirmed.
Black, J. dissenting

In the last half century the United States, along with many, perhaps most, other nations of the world, has moved far towards becoming a welfare state, that is, a nation that for one reason or another taxes its most affluent people to help support, feed, clothe and shelter its less fortunate citizens. The result is that today more than 9 million men, women, and children in the United States receive some kind of state or federally financed public assistance in the form of allowances or gratuities, generally paid them periodically, usually by the week, month, or quarter. Since these gratuities are paid on the basis of need, the list of recipients is not static, and some people go off the lists and others are added from time to time. These ever-changing lists put a constant administrative burden on the government and it certainly could not have reasonably anticipated that this burden would include the additional procedural expense imposed by the Court today.

. . . . .

In my judgment there is not one word, phrase, or sentence from the beginning to the end of the Constitution from which it can be inferred that judges were granted . . .legislative power. True, Marbury v. Madison . . . held, and properly, I think, that courts must be the final interpreters of the Constitution, and I recognize that the holding can provide an opportunity to slide imperceptibly into constitutional amendment and law making. But when federal judges use this judicial power for legislative purposes, I think they wander out of their field of vested powers and transgress into the area constitutionally assigned to the Congress and the people. This is precisely what I believe the Court is doing in this case. Hence my dissent.

. . . . .

Particularly do I not think that the Fourteenth Amendment should be given such an unnecessarily broad construction. That amendment came into being primarily to protect Negroes from discrimination, and while some of its language can and does protect others, all know that the chief purpose behind it was to protect ex-slaves. . . .The court, however, relies upon the Fourteenth Amendment and in effect says that failure of the government to pay a promised charitable installment to an individual deprives that individual of his own property, in violation of the due process clause of the Fourteenth Amendment. It somewhat strains credulity to say that a government's promise of charity to an individual is property belonging to that individual when the government denies that the individual is honestly entitled to receive such a payment.

. . . . .

This decision is thus only another variant of the view often expressed by some members of this Court that the due process clause forbids any conduct that a majority of Court believes "unfair," "indecent," or "shocking to their
consciences. . ." Neither these words nor any like them appear anywhere in the due process clause. If they did, they would leave the majority of justices free to hold any conduct unconstitutional that they should conclude on their own to be unfair or shocking to them. Had the drafters of the due process clause meant to leave judges such ambulatory power to declare laws unconstitutional, the chief value of a written constitution, as the founders saw it, would have been lost. In fact, if that view of due process is correct, the due process clause could easily swallow up all other parts of the Constitution. And truly the Constitution would always be "what the judges say it is" at a given moment, not what the founders wrote into the document.

. . . . .

The procedure required today as a matter of constitutional law finds no precedent in our legal system. Reduced to its simplest terms, the problem in this case is similar to that frequently encountered when two parties have ongoing legal relationship which requires one party to make periodic payments to the other. Often the situation arises where the party "owing" the money stops paying it and justifies his conduct by arguing that the recipient is not legally entitled to payment. The recipient can, of course, disagree and go to court to compel payment. But I know of no situation in our legal system in which the person alleged to owe money to another is required by law to continue making payments to a judgment-proof claimant without the benefit of any security or bond to insure that these payments can be recovered if he wins his legal argument. Yet today's decision in no way obligates the welfare recipient to pay back any benefits wrongfully received during the pre-termination evidentiary hearings or post any bond.

. . . . .

The Court apparently feels that this decision will benefit the poor and needy. In my judgment the eventual result will be just the opposite. . . . In the next case the welfare recipients are bound to argue that cutting off benefits before judicial review of the agency's decision is also a denial of due process. Since, by hypothesis, termination of aid at that point may still "deprive an eligible recipient of the very means by which to live while he waits". . .I would be surprised if the weighing process did not compel the conclusion that termination without full judicial review would be unconscionable. After all, at each step, as the majority seems to feel, the issue is only one of weighing the government's pocketbook against the actual survival of the recipient, and surely that balance must always tip in favor of the individual. . . . Thus the end result of today's decision may well be that the government, once it decides to give welfare benefits, cannot reverse that decision until the recipient has had the benefits of full administrative and judicial review. . . . [T]he inevitable result of such a constitutionally imposed burden will be that the government will not put a claimant on the rolls initially until it has made an exhaustive investigation to determine his eligibility.

. . . . .

[The dissenting opinions of Justice Stewart and Chief Justice Burger are omitted.]

This case is a landmark in public welfare law. The basis of the decision is procedural due process: The justices are not declaring the particular statute providing and terminating public welfare benefits to be arbitrary and capricious. Rather, they fault the way the statute is administered—the agency's failure to provide a hearing when the client disputes the basis for termination of benefits. As Justice Brennan points out, termination involves state action, and the due process clause of the Fourteenth Amendment forbids any state to "deprive any person of life, liberty, or property without due process of law." When as adjudication may deprive the client of the very means of subsistence, procedural due process now requires a pre-termination hearing.

The Court formerly used a right-privilege distinction in determining whether an individual was deprived of liberty or property without due process. In Goldberg the Court found an "entitlement," which is treated like a property right that the government may not terminate without notice and a hearing.

The case also illustrates how members of the Supreme Court may disagree in interpreting the Constitution. Although the dissenting justices are no less concerned about individuals suffering from "brutal need," they do not read the Constitution as requiring a pre-termination hearing.

Note that Goldberg does not say that a welfare grant can never be terminated without a hearing. If there are no disputed matters of fact—if the state statute has been amended, for instance, or the regulations concerning levels of need or age at termination revised—there may be no dispute and no need for a hearing.

Because the Supreme Court decides only the legal issues before it and not the facts, which are determined at the trial level, its opinions do not speculate on how the holding may apply to other situations. However, the opinion may be used as a precedent in cases dealing with other rights that are allegedly protected from arbitrary state action by procedural due process. For instance, do foster parents have a protected right to a continuing relationship with a foster child? Smith v. Organization of Foster Families (1977), which is excerpted in chapter 9, answers this question.

Equal Protection

The equal protection provided by the Fourteenth Amendment does not require that each person be treated absolutely the same. Classifications cannot be entirely neat and tidy. Classifying is inherently arbitrary, because each individual or each piece of property or each activity, although unique, cannot be treated as a separate class. To provide equal protection, classifications must have a "rational basis." But this is not always enough to support a challenged classification. When a law impinges on a freedom as basic as freedom of speech or freedom of travel, or when it is based on a suspect classification such as race or religion, there must be not merely a rational basis but also "a compelling state interest" for any discrimination in classification. For example, a statute that taxed four-wheeled vehicles on one basis and motorcycles on a different basis might be upheld if the state can show a "rational basis" for the difference. However, a classification dealing with people and based on race will be subjected to strict scrutiny. Note that, contrary to what might be expected in something as vital as the right to public assistance, "in the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect" (Dandridge v. Williams, 1970). For instance, in Dandridge v. Williams maximum grants to public welfare clients were upheld against the argument that they treated larger families unequally.

In the 1970s the Supreme Court moved away from an either-or approach to a more flexible analysis of the nature of the unequal classification challenged and the rights affected, and the government interests (such as economy of administration) used to support the classification. This is apparent in cases challenging gender classifications and those that disadvantage illegitimate children. Without holding that gender and illegitimacy are "suspect" classes, the court requires that the classification serve important government objectives and be substantially related to those objectives in order to withstand the equal protection challenge.

Brown v. Board of Education of Topeka (1954) illustrates the use of the equal protection clause in deciding a case that challenged a state's classification by race.

Brown v. Board of Education of Topeka

347 U.S. 483, 74 S. Ct. 686 (1954)
Mr. Chief Justice Warren delivered the opinion of the Court.

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

Bolling v. Sharpe (1954) reached the same conclusion for public schools in the District of Columbia, using as a constitutional rationale that racial segregation is a denial of due process of law as guaranteed by the Fifth Amendment. (The court used the Fifth rather than the Fourteenth Amendment because the Fourteenth applies to states; the District of Columbia is part of the federal government.) The Bolling court said, 'The equal protection of the law is a more implicit safeguard of prohibited unfairness than due process of law,' therefore, we do not imply that the two are always interchangeable phrases. But, as this court has recognized, discrimination may be so unjustifiable as to be violative of due process" (p. 497). The court then added,

Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the due process clause. In view of our decision that the Constitution prohibits the state from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the federal government. (p. 499)

The Supreme Court decision in Brown was unanimous, holding that classification by race is inherently unequal. Although the decision applies only to public schools, it is used as a precedent.

Brown illustrates that constitutional interpretation is not static. The Court recognized that times had changed since the Fourteenth Amendment had been ratified. Although many questions that come to the Court were never considered by its framers, the language of the Constitution lends itself to meeting the needs of a dynamic society.

In deciding Brown, the Court had to deal with a precedent, Plessy v. Ferguson. It could have distinguished the precedent from Brown by saying that Plessy applied to transportation, not to education. Courts often make such distinctions when they wish to reach a result more in keeping with current equities without overruling a prior case, but if the Supreme Court had distinguished Plessy in Brown, cases challenging discrimination in public transportation inevitably would have followed, so Plessy was expressly overruled.

The Court was not unmindful of the difficulties that complete integration of public schools would entail and asked the attorneys to return with suggestions. A second Brown decision determined that integration of public schools would follow "with all deliberate speed." The problem of fully integrating public schools remains to this day.

The Brown decision on inequality in public schools raises important questions: Is it a denial of equal protection for students to attend public schools that are less than adequate because of limited financing? Are students for whom English is a second language denied equal protection of the law if they are not provided with special language classes? In thinking about these questions, consider whether a "right" or a "privilege" is involved and whether the classifications serve important governmental objectives. You must also take into account whether the Court is interpreting a statute, presumably enacted for modern concerns and easily amended, or a provision of the Constitution.

ADVERSARIAL SYSTEM

The lawyer is a counselor—a role social workers understand. The lawyer helps the client identify the legal problem, search for the facts needed to clarify it, and begin work on it. As with social work some people make better clients than others because they are better able to follow advice and have an appropriate degree of intellectual capacity to grasp the problem, mental and physical energy to work on it, and objectivity about it.

Lawyers are also advocates. They muster their clients' best arguments to vindicate their rights. Lawyers engage in social action when their experience shows them that changes are needed. On some rare occasions, as in Brown or Goldberg v. Kelly, a lawyer's advocacy can change the legal (and social) system. When professional social workers undertake social action, they are recognizing that the best solution to a client's problem may lie less in accommodation to an unsatisfactory social system than in change of the system itself.

Important as it is, the adversary role is one of the most misunderstood aspects of the legal profession. In the arena of the courtroom, attorneys must be champions for their clients, advocating their interest as foes of the opposing party, although not in an emotional way (Steele, 1972). In so doing they may not use illegal, immoral, or unethical methods, but the psychological and sociological implications of their course of action do not concern them. Their function is to win—to minimize their client's loss of property or liberty.

Once a lawyer chooses to represent a particular client, all value judgments are irrelevant. Lawyers are bound by the law to assert the law on behalf of the client. Because society has made the value judgment that this is the lawyer's responsibility, he or she will try to give an abusive parent the best representation possible, even if this means returning a child to the client's home. The objective of the attorney is not to determine what is best for all parties or what solution would best benefit society but to win for the client.

To work effectively with attorneys, you must understand the role of lawyers and the methods they use to win cases. You will deal with them in juvenile courts, in probation and parole cases, and in many family matters. A lawyer can explain how you can present your analysis and diagnosis convincingly using legally admissible evidence to counteract an opposing attorney's advocacy of a position you know to be harmful to the client.

This is not to say that an attorney does not compromise, but the art of compromise, one of the attorney's strongest skills, is used only if it will bring the best solution for the client. Ultimately the client decides whether to sue, defend, or compromise (Mueller & Murphy, 1965; Smith, 1968).

HOW TO FIND THE LAW
Legal Research

To understand and appreciate the legal environment in which social work exists and is practiced, it is important to become acquainted with the raw material of the law: statutes and cases. These give a feel for the law and an appreciation of how lawyers think, because studying cases and statutes is the way law students study. Good legal research involves identifying the real issue, an activity not unfamiliar to social workers, who know that the problem a client presents is often not the real one.

In private law schools, permission is required to use the law library, but libraries in state-supported law schools are often open to the public. Some large cities have extensive legal collections in their public libraries. State agencies may also have law libraries open to the general public or may retain legal staff employees may consult.

Any nonlawyer who is planning to do in-depth legal research should first read a text on the subject (see, for instance, Price, Bitner, & Bysiewicz, 1979). Once familiar with how materials are indexed, you can find additional cases, statutes, and law review articles on a given subject. All reported cases—cases that have been printed in bound volumes—are indexed in encyclopedias and digests. By checking a number of key words in an index, a researcher can find all the relevant cases in the country. The task in legal research is therefore to identify the key words that best define the problem.

A lot of legal research is now done on computers. To learn how to do that, read How to Find the Law (Cohn, Berring, & Olson, 1980).

Briefing Cases

Law students learn to identify legal problems by briefing the cases they read, summarizing very concisely the facts important to the court's decisions. These facts may amount to no more than a few lines in a case many pages long. The student then finds the issue, the question the court has been asked to decide. The brief concludes with the holding, what the court decided and why. The "why" of the holding is important because this becomes a rule of law that may apply to other similar cases. For instance, a brief for Brown v. Board of Education might be as simple as this:

Facts:

Negro students from four states sought the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis.

Issue:

Does the precedent of Plessy v. Ferguson, which created the doctrine of "separate but equal," apply to public education?

Holding:

The doctrine of "separate but equal" has no place in public education. Separate educational facilities are inherently unequal. Therefore, the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the law guaranteed by the Fourteenth Amendment.

Among other things this brief tells you that the race of the plaintiffs is crucial to the decision, because it is racial discrimination that is complained of. It also tells you that the plaintiffs are students actively suffering from discrimination at the hands of the state, not people who believe abstractly that segregated schools are wrong. It tells you of an existing precedent that must be overruled if the court is to find for the plaintiffs. And the holding refers you to the provision of the Constitution that the court used to reach this rule of law.

In reading a case, always look at the citation, the numbers and letters telling you where the full report of the case is to be found. For instance, the first citation for Goldberg v. Kelly is 397 U.S. 254; this tells you that the case can be found in volume 397 of the United States Reports and begins on page 254. The case was decided in 1970.

Cases are reported in series that carry different names. Cases decided by the federal courts of appeals are found in the Federal Reporters; the first series of these will be cited, for example, as 144 F. 34 (1906) and the second as 14 F.2d 299 (1926). The date is not necessary to find the case but it can be important if you are wondering whether the case has value as a precedent. You can check that by referring to Shepherd's Citations in a law library. Shepherd gives you information about whether a case has been overruled and which cases have cited the case you are looking up.

Cases decided in federal district courts are reported in the Federal Supplement, cited as F. Supp. State cases are published in regional reporters. Once you do any legal research, you will quickly discover which reporter has the federal cases from your state. (Louisiana cases are cited in the Southern Reporter.) Some reporters have a second or even a third series, each starting with volume one, once the previous volumes have reached a certain number.

You will recall that Goldberg v. Kelly had a second citation to 90 S. Ct. 872. This is what is called a parallel citation, meaning that the same case is printed in another reporter, in this case, the Supreme Court Reporter. The full case is found in both places.

HOW TO FIND A LAWYER

For most people recommendations of a lawyer come from family and friends. Legal clinics occasionally advertise in newspapers, but advertising by lawyers was unusual in the past. Now that the Supreme Court has decided that lawyers may advertise, it is much more common, with some lawyers using television, particularly to tout expertise in tort, especially accident, litigation.

The local bar associations in larger cities have lawyer referral services. Anyone wishing to find a lawyer can call the bar association, describe the problem briefly, and ask for a referral. Usually these services depend on lawyers registering themselves for referral, listing their specialties. For a set fee the client may have a brief consultation with the lawyer to learn whether the problem is a legal one, whether the lawyer can and will handle it, and what it might cost if necessary to litigate.

There are also directories of lawyers; Martindale-Hubbell Law Directory (1994) is one. It and others will be found in any large public library or in a law library. The volumes of these directories list lawyers by name and locality, give their educational background, mention the type of clients the lawyers see, and indicate their colleagues' opinion of their ability by the listing of a rating.

A large community will probably have a legal aid office that handles civil matters for indigent people; those accused of crimes may ask the court to appoint a lawyer. This will be discussed in more detail later.

REFERENCES

Bodenheimer, E. (1962). Jurisprudence: The philosophy and method of law. Cambridge, MA: Harvard University Press.

Cohen, M. L., Berring, R. C., & Olson, K. C. (1980). How to find the law. St. Paul, MN: West Publishing.

Jones, G. (Ed.). (1973). The sovereignty of the law. Selections from Blackstone's "Commentaries on the Laws of England." Toronto: University of Toronto Press.

Maluccio, A. N., & Marlow, W. D. (1974). The case for the contract. Social Work, 19, 28-36.

Martindale-Hubbell Law Directory. (1994). New Providence, NJ: Reed Publishing.

Mueller, E. E., & Murphy, P. J. (1965). Communication problems: Social workers and lawyers. Social Work, 10, 97-103.

Murdaugh, J. (1974). Student supervision unbounded. Social Work, 19, 131-132.

Price, M. O., Bitner, H., & Bysiewicz, S. R. (1979). Effective legal research (4th ed.). Boston: Little, Brown.

Seabury, B. A. (1976). The contract: Uses, abuses, and limitations. Social Work, 21, 16-21.

Smith, A. D. (1968). A study of the lawyer-social worker professional relationship. Research Contributions of the American Bar Foundation, 6.

Steele, W. W., Jr. (1972). Understanding the advocacy process. Social Work, 17, 108-109.

STUDY QUESTIONS

1. Can the Supreme Court affect the conduct of hearings in government social agencies?
2. Is government classification according to race subject to strict scrutiny when a court looks at it in terms of equal protection?
3. What is the nature of the adversary role of attorneys?

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