King v. Smith (1968)

AFDC cannot be withheld because of the presence of a “substitute father” who visited a family on weekends. The issue before the US Supreme Court involved how the states could determine how to implement a federal program. The court used the term “co-operative federalism.”

Citation: 392 U.S. 309 (1968)
Date decided: Jun 17, 1968
Longer case name: King, Commissioner, Department of Pensions and Security, et al. v. Smith et al.
Law type: Civil
Jurisdiction level:Federal
State of origin: Alabama
Topic(s):Enforcement, Equal protection, and Public assistance
Lists:Important cases and zGreatest hits (future)
Attorneys:Martin Garbus (American Civil Liberties Union, ACLU) argued the cause and filed a brief for appellees.
Others involved:Briefs of amici curiae, urging affirmance, were filed by Jack Greenberg, James M. Nabrit III, Leroy D. Clark, and Charles Stephen Ralston for the NAACP Legal Defense and Educational Fund, Inc., et al., and by Helen L. Buttenwieser and Ephraim London for the Child Welfare League of America, Inc., et al
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Case Importance

Led to the enforcement of federal statutory law not only in the legal welfare area but also, until recently, set the framework for enforcement of federal law across the board. Henry Freedman, “Sylvester Smith: Unlikely Heroine: King v. Smith”, in “The Poverty Law Canon: Exploring the Major Cases”, edited by Failinger & Rosser, University of Michigan Press, 2016: “Sylvester Smith, a 34-­ year-­ old Selma, Alabama, African American widow with four children, was unaware of a press conference held in Washington, D.C., in February 1966. At that conference, the NAACP Legal Defense and Education Fund lawyers urged the federal government to stop state welfare agencies from refusing to help children of a woman who had a steady male friend: The needy mother without a husband is caught in an impossible dilemma . She may try to conduct a secret relationship, endanger her grant, and live as if she were a criminal, or she may abandon her effort to develop male friendships altogether, or she may strip herself of every last vestige of dignity by reporting constantly on the intimacies of her friendship. Edward Sparer, who had just founded the Center on Social Welfare Policy and Law (now the National Center for Law and Economic Justice), said this was “one of the most important and most significant issues in welfare.” A few months later, Sylvester Smith’s battle to keep her benefits launched a struggle that went to the Supreme Court, revolutionized our understanding of the welfare law, and resulted in hundreds of thousands of poor families getting desperately needed help.”

Case Details

(The syllabus is not part of the opinion, but is a summary prepared by the court reporter as a convenience.)



Under the Aid to Families With Dependent Children Program (AFDC) established by the Social Security Act of 1935 funds are made available for a “dependent child” largely by the Federal Government, on a matching fund basis, with the participating State administering the program in conformity with the Act and regulations of the Department of Health, Education, and Welfare (HEW). Section 406(a) of the Act defines a “dependent child” as one who has been deprived of “parental” support or care by reason of the death, continued absence, or incapacity of a “parent,” and, insofar as relevant in this case, aid can be granted under the provision only if a “parent” of the needy child is continually absent from the home. The Act requires that “aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals. . . .” 42 U.S.C. § 602(a)(9). Alabama, which, like all other States, participates in the AFDC program, in 1964 promulgated its “substitute father” regulation under which AFDC payments are denied to the children of a mother who “cohabits” in or outside her home with an able-bodied man, a “substitute father” being considered a nonabsent parent within the federal statute. The regulation applies regardless of whether the man is the children’s father, is obliged to contribute to their support, or in fact does so. The AFDC aid which appellee Mrs. Smith and her four children, who reside in Alabama, for several years had received was terminated in October, 1966, solely because of the substitute father regulation on the ground that a Mr. Williams came to her home on weekends and had sexual relations with her. Mr. Williams is not the father of any of her children, is not obliged by state law to support them, and does not do so. Appellees thereupon brought this class action in the District Court against appellants, officers, and members of the Alabama Board of Pensions and Security for declaratory and injunctive relief against the substitute father regulation. The State contended that the regulation simply defines who is a nonabsent “parent” under the Act, is a legitimate way of allocating its limited resources available for AFDC assistance, discourages illicit sexual relationships and illegitimate births, and treats informal “married” couples like ordinary married couples who are ineligible for AFDC aid so long as their father is in the home. The District Court found the regulation inconsistent with the Act and the Equal Protection Clause.

Held: Alabama’s substitute father regulation is invalid because it defines “parent” in a manner that is inconsistent with § 406(a) of the Social Security Act, and, in denying AFDC assistance to appellees on the basis of the invalid regulation, Alabama has breached its federally imposed obligation to furnish aid to families with dependent children with reasonable promptness to all eligible individuals. Pp. 392 U. S. 320-334.

(a) Insofar as Alabama’s substitute father regulation (which has no relation to the need of the dependent child) is based on the State’s asserted interest in discouraging illicit sexual behavior and illegitimacy, it plainly conflicts with federal law and policy. Under HEW’s “Flemming Ruling,” as modified by amendments to the Social Security Act, Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures, rather than measures punishing dependent children, whose protection is AFDC’s paramount goal. Pp. 392 U. S. 320-327.

(b) Congress meant by the term “parent” in § 406(a) of the Act an individual who owed the child a state-imposed duty of support, and Alabama may not therefore disqualify a child from AFDC aid on the basis of a substitute father who has no such duty. Pp. 392 U. S. 327-333.

277 F. Supp. 31, affirmed.

From the opinion

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

Alabama, together with every other State, Puerto Rico, the Virgin Islands, the District of Columbia, and Guam, participates in the Federal Government’s Aid to Families With Dependent Children (AFDC) program, which was established by the Social Security Act of 1935. [Footnote 1] 49 Stat. 620, as amended, 42 U.S.C. §§ 301-1394. This appeal presents the question whether a regulation of the Alabama Department of Pensions and Security, employed in that Department’s administration of the State’s federally funded AFDC program, is consistent with Subchapter IV of the Social Security Act, 42 U.S.C. §§ 601-609, and with the Equal Protection Clause of the Fourteenth Amendment. At issue is the validity of Alabama’s so-called “substitute father” regulation, which denies AFDC payments to the children of a mother who “cohabits” in or outside her home with any single or married able-bodied man. Appellees brought this class action against appellants, officers, and members of the Alabama Board of Pensions and Security, in the United States District Court for the Middle District of Alabama, under 42 U.S.C. § 1983, [Footnote 2] seeking declaratory and injunctive relief. A properly convened three-judge District Court [Footnote 3] correctly adjudicated the merits of the controversy without requiring appellees to exhaust state administrative remedies, [Footnote 4] and found the regulation to be inconsistent with the Social Security Act and the Equal Protection Clause. [Footnote 5] We noted probable jurisdiction, and, for reasons which will appear, we affirm without reaching the constitutional issue.


This appeal raises only the question whether the State may deal with these problems in the manner that it has here — by flatly denying AFDC assistance to otherwise eligible dependent children.

Alabama’s argument based on its interests in discouraging immorality and illegitimacy would have been quite relevant at one time in the history of the AFDC program. However, subsequent developments clearly establish that these state interests are not presently legitimate justifications for AFDC disqualification. Insofar as this or any similar regulation is based on the State’s asserted interest in discouraging illicit sexual behavior and illegitimacy, it plainly conflicts with federal law and policy.

A significant characteristic of public welfare programs during the last half of the 19th century in this country was their preference for the “worthy” poor. Some poor persons were thought worthy of public assistance, and others were thought unworthy because of their supposed incapacity for “moral regeneration.” H. Leyendecker, Problems and Policy in Public Assistance 45-57 (1955); Wedemeyer & Moore, The American Welfare System, 54 Calif.L.Rev. 326, 327-328 (1966). This “worthy person” concept characterized the mothers’ pension welfare programs, [Footnote 17] which were the precursors of AFDC. See W. Bell, Aid to Dependent Children 3-19 (1965). Benefits under the mothers’ pension programs, accordingly, were customarily restricted to widows who were considered morally fit. See Bell, supra, at 7; Leyendecker, supra, at 53.

In this social context, it is not surprising that both the House and Senate Committee Reports on the Social Security Act of 1935 indicate that States participating in AFDC were free to impose eligibility requirements relating to the “moral character” of applicants. H.R.Rep. No. 615, 74th Cong., 1st Sess., 24 (1935); S.Rep. No. 628, 74th Cong., 1st Sess., 36 (1935). See also 79 Cong.Rec. 5679 (statement by Representative Jenkins) (1935). During the following years, many state AFDC plans included provisions making ineligible for assistance dependent children not living in “suitable homes.” See Bell, supra, at 29-136 (1965). As applied, these suitable home provisions frequently disqualified children on the basis of the alleged immoral behavior of their mothers. Ibid. [Footnote 18]

In the 1940’s, suitable home provisions came under increasing attack. Critics argued, for example, that such disqualification provisions undermined a mother’s confidence and authority, thereby promoting continued dependency; that they forced destitute mothers into increased immorality as a means of earning money; that they were habitually used to disguise systematic racial discrimination, and that they senselessly punished impoverished children on the basis of their mothers’ behavior, while inconsistently permitting them to remain in the allegedly unsuitable homes. In 1945, the predecessor of HEW produced a state letter arguing against suitable home provisions and recommending their abolition. See Bell, supra, at 51. Although 15 States abolished their provisions during the following decade, numerous other States retained them. Ibid.

In the 1950’s, matters became further complicated by pressures in numerous States to disqualify illegitimate children from AFDC assistance. Attempts were made in at least 18 States to enact laws excluding children on the basis of their own or their siblings’ birth status. See Bell, supra, at 72-73. All but three attempts failed to pass the state legislatures, and two of the three successful bills were vetoed by the governors of the States involved. Ibid. In 1960, the federal agency strongly disapproved of illegitimacy disqualifications. See Bell, supra, at 73-74.

Nonetheless, in 1960, Louisiana enacted legislation requiring, as a condition precedent for AFDC eligibility, that the home of a dependent child be “suitable,” and specifying that any home in which an illegitimate child had been born subsequent to the receipt of public assistance would be considered unsuitable. Louisiana Acts, No. 251 (1960). In the summer of 1960, approximately 23,000 children were dropped from Louisiana’s AFDC rolls. Bell, supra, at 137. In disapproving this legislation, then Secretary of Health, Education, and Welfare Flemming issued what is now known as the Flemming Ruling, stating that, as of July 1, 1961,

“A State plan . . . may not impose an eligibility condition that would deny assistance with respect to a needy child on the basis that the home conditions in which the child lives are unsuitable, while the child continues to reside in the home. Assistance will therefore be continued during the time efforts are being made either to improve the home conditions or to make arrangements for the child elsewhere. [Footnote 19]”

Congress quickly approved the Flemming Ruling, while extending until September 1, 1962, the time for state compliance. 75 Stat. 77, as amended 42 U.S.C. § 604(b). [Footnote 20] At the same time, Congress acted to implement the ruling by providing, on a temporary basis, that dependent children could receive AFDC assistance if they were placed in foster homes after a court determination that their former homes were, as the Senate Report stated, “unsuitable because of the immoral or negligent behavior of the parent.” S.Rep. No. 165, 87th Cong., 1st Sess., 6 (1961). See 75 Stat. 76, as amended, 42 U.S.C. § 608. [Footnote 21]

In 1962, Congress made permanent the provision for AFDC assistance to children placed in foster homes and extended such coverage to include children placed in child care institutions. 76 Stat. 180 185, 193, 196, 207, 42 U.S.C. § 608. See S.Rep. No. 1589, 87th Cong., 2d Sess., 13 (1962). At the same time, Congress modified the Flemming Ruling by amending § 404(b) of the Act. As amended, the statute permits States to disqualify from AFDC aid children who live in unsuitable homes, provided they are granted other “adequate care and assistance.” 76 Stat. 189, 42 U.S.C. § 604(b). See S.Rep. No. 1589, 87th Cong., 2d Sess., 14 (1962).

Thus, under the 1961 and 1962 amendments to the Social Security Act, the States are permitted to remove a child from a home that is judicially determined to be so unsuitable as to “be contrary to the welfare of such child.” 42 U.S.C. § 608(a)(1). The States are also permitted to terminate AFDC assistance to a child living in an unsuitable home if they provide other adequate care and assistance for the child under a general welfare program. 42 U.S.C. § 604(b). See S.Rep. No. 1589, 87th Cong., 2d Sess., 14 (1962). The statutory approval of the Flemming Ruling, however, precludes the States from otherwise denying AFDC assistance to dependent children on the basis of their mothers’ alleged immorality or to discourage illegitimate births.

The most recent congressional amendments to the Social Security Act further corroborate that federal public welfare policy now rests on a basis considerably more sophisticated and enlightened than the “worthy person” concept of earlier times. State plans are now required to provide for a rehabilitative program of improving and correcting unsuitable homes, § 402(a), as amended by § 201(a)(1)(B), 81 Stat. 877, 42 U.S.C. § 602(a)(14) (1964 ed., Supp. III); § 406, as amended by § 201(f), 81 Stat. 880, 42 U.S.C. § 606 (1964 ed., Supp. III); to provide voluntary family planning services for the purpose of reducing illegitimate births, § 402(a), as amended by § 201(a)(1)(C), 81 Stat. 878, 42 U.S.C. § 602(a)(15) (1964 ed., Supp. III), and to provide a program for establishing the paternity of illegitimate children and securing support for them, § 402(a), as amended by § 201(a)(1)(C), 81 Stat. 878, 42 U.S.C. § 602(a)(17) (1964 ed., Supp. III).

In sum, Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures, rather than measures that punish dependent children, and that protection of such children is the paramount goal of AFDC. [Footnote 22] In light of the Flemming Ruling and the 1961, 1962, and 1968 amendments to the Social Security Act, it is simply inconceivable, as HEW has recognized, [Footnote 23] that Alabama is free to discourage immorality and illegitimacy by the device of absolute disqualification of needy children. Alabama may deal with these problems by several different methods under the Social Security Act. But the method it has chosen plainly conflicts with the Act.

Last modified: 2022-12-27 12:51
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