Saturday, September 18, 2021

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 Abstract

Excerpted From: Theresa Glennon, Alexis Fennell, Kaylin Hawkins, and Madison McNulty, Shelter from the Storm: Human Rights Protections for Single-mother Families in the Time of Covid-19, 27 William and Mary Journal of Race, Gender, and Social Justice 635 (Spring, 2021) (510 Footnotes) (Full Document)

 

GlennonFennellHawkinsMcNulty

 

 

 

 

 

 

 

 

 

A public health and economic tsunami is devastating many families in the United States. This tsunami may be most destructive to single-parent families-- most of which are headed by mothers. The extraordinary devastation this tsunami inflicts on these families is not merely bad luck, but the result of decades of deliberate legal and policy choices that left single-mother families in the United States living at the wave's edge, exposed to the risks of unemployment, homelessness and food and healthcare insecurity from even the "normal," lesser storms of average years. Now, without a concerted government effort to honor the human rights of all families, single-mother families face a precarious future that may permanently harm all family members.

COVID-19's arrival, and the changes it has unleashed, reveal how longstanding legal and policy decisions produced structural inequalities that have left so many families, and especially single-parent families with children, all too insecure. The fragility of single-mother families is amplified by the multifaceted discrimination they face. While all single parents, including single fathers and other single relatives who are raising children, share many of these burdens, this Article focuses on the challenges confronting single mothers.

This vulnerability is structural and results from multiple and interrelated forms of disadvantage and discrimination. Single mothers are more likely to be essential workers who face the threat of contagion and lack of child care. They are also more likely to be service sector workers who have lost their jobs or experienced reduced hours due to pandemic-related closures, restrictions, and customer reluctance to take health risks. Employment law and policy choices led many single mothers to be underpaid for their work prior to COVID-19, and many entered this perilous time with few financial reserves and substantial debt. Without continuing government assistance, they risk food insecurity and homelessness as rental and mortgage payments go unpaid. Their children may lack adequate access to schools or the child care that single mothers need to seek new employment opportunities. All of these socially constructed vulnerabilities and obstacles are heightened for mothers who are Black, Indigenous and People of Color (BIPOC). These vulnerabilities will undermine the well-being and opportunities of many children for years to come if no assistance is provided.

These federal policy choices stand in sharp contrast to the political rhetoric of government support for families. Social and economic policy in the twentieth century developed to support white two-parent marital homes, with a working father and a stay-at-home mother as the ideal norm. Much of the federal government's support for families is designed to aid this idealized family form. In contrast, single mothers, who deviate from this norm, have historically been subject to vilification. Their pervasive hardships have been justified by sexist stereotypes of single mothers--painting them as immoral, lazy and opportunistic--and policies reflect this deep suspicion.

The negative rhetoric surrounding single mothers also employs racist tropes to further justify their disparagement by policymakers and the public. Even as the percentage of children growing up in single-parent households has increased dramatically, these stereotypes undermine their health and well-being. The limited assistance single mothers and their families receive is provided in intrusive and demeaning ways. Children of single mothers were not, and are not, viewed as "all our children," entitled to sustainable, enriching opportunities and lives. As COVID-19 slams the United States, these families face an inhospitable and dangerous world.

Part I of this Article focuses on single-mother families and their fragile circumstances prior to and during the current public health crisis and ensuing economic devastation, with a focus on the early months of the pandemic during the Spring and Summer of 2020. This Part also evaluates the federal programs intended to alleviate the economic effects of the pandemic. While some single mothers have benefited from pandemic-related emergency assistance programs, others have fallen through the cracks, received insufficient assistance, or faced loss of benefits as programs expired and no consensus for new programs emerged.

Part II steps back from the current crisis and identifies the damaging stereotypes that have been used to justify a wide range of laws and policies that have kept many single-mother families in or near poverty and bereft of a strong financial safety net. Single mothers face a Catch-22. Because government employment policies undervalue their labor, even their full-time work does not earn a "family wage" adequate to support their families. This forces them into social welfare programs that are materially inadequate and purposefully humiliating.

This Part examines the laws related to wages and work rules that have prevented many working single mothers from adequately supporting their families while meeting their family obligations. In addition, it explains that single mothers, and especially BIPOC single mothers, have not received adequate protections against employment discrimination. The same racist and sexist stereotypes of single mothers also warped the design and funding of social welfare programs, resulting in a patchwork of programs that fail to meet a family's basic needs or aid all eligible families. They also impose onerous requirements and complex application and renewal procedures, forcing single mothers to navigate underfunded bureaucracies depleted of the staff needed to process these applications. These requirements impose significant barriers during the pandemic, especially given the dramatic rise in those applying for such assistance.

Part III explores the judicial decisions that declined to subject social welfare programs to searching scrutiny under the Fourteenth Amendment. The Constitution has not been interpreted to require any government economic assistance to keep families intact, even if that assistance is needed to prevent removal of their children solely due to poverty. Nor have courts interpreted the Equal Protection Clause to require heightened scrutiny of different and negative treatment of women based on their marital status or status as parents, or to protect single mothers from laws and policies that have a disproportionate and negative effect on them.

Finally, Part IV outlines a strategy to begin to remedy these harms. Specifically, it urges advocates to address the plight of single-mother families through a human rights framework. International and regional human rights conventions include two key concepts. First, they recognize that the family is the building block of society. All parents and children are entitled to adequate support, including economic support, as an essential human right. Second, they require that laws and policies be constructed and implemented to protect against multiple forms of discrimination, including those directed at single mothers. Application of these two principles to employment laws and government assistance programs would profoundly benefit single-mother families.

The United States has rejected many of these agreements based on the fear that international norms would undermine U.S. sovereignty, the belief that the United States has little to learn from the rest of the world, and the antipathy of many U.S. administrations toward economic rights. Part IV argues that sovereignty fears are exaggerated, and that the committee review processes established under the key relevant human rights conventions would educate government officials and a public that knows little of human rights developments around the globe.

Other nations have applied human rights norms to reshape economic and social policies to benefit all families. The United States should not be left behind. U.S. government officials and the public should become knowledgeable about these human rights and accept these obligations as well. Educating ourselves about human rights norms and obligations, advocating for ratification of key human rights treaties, and learning from their implementation in other countries are crucial first steps to ensuring justice and protection for all families.

[. . .]

COVID-19 makes clear what many have known already. Structural inequalities, often reinforced by sexist and racist tropes, most hurt families headed by single mothers, and especially those headed by BIPOC mothers. These structural inequalities result from government choices regarding laws and policies and have left single-mother families especially vulnerable in this perilous time. Pandemic-related financial distress, although outside the control of single mothers, could lead to the loss of their children if they cannot provide their children with an adequate home.

In 1990, two mothers who lost custody of their children to the foster care system due to homelessness challenged this unbearable loss. The Delaware Court of Chancery denied their claim for the housing assistance they needed to regain custody of their children from the state. While the Court's opinion followed precedent that such protections were not found in the U.S. Constitution, it voiced the human rights argument made here:

This case is about basic human rights. It is about providing decent housing for the homeless families of our State. That is the societal problem presented here. While the plaintiffs seek to weave the facts of their case into the fabric of our statutory and constitutional law, and thus invoke the judicial power to redress a societal problem, I am convinced that the effort is misplaced .... For this Court to impose on the State a judicially crafted solution to the homeless problem, under the guise of substantive due process or through creative interpretations of statutory commands, would require me to ignore the institutional role of courts and the pragmatic principles of restraint that govern them .... I believe the General Assembly and the Executive Branch--not the courts--should address plainly and directly the human rights implications of the state programs defended in this case.

We must resist denigrating stereotypes and actively humanize our vision of single mothers and their families to ensure them the dignity and respect they are due. Widely recognized human rights norms would significantly support this reframing. The time for advocating for human rights is now, before new extremes of poverty and harm become normalized. Where our Constitution fails to provide adequate protection from discrimination and vulnerability to “brutal need,” we must advocate for statutory rights and practices in areas like employment and benefits to protect the human rights of our most vulnerable families. Let our most vivid failures during this pandemic impel us to deepen our vision and right our course.


Professor Emerita, Temple University Beasley School of Law. I am grateful for insightful feedback from Arianne Renan Barzilay, Jeffrey Dunoff and Douglas NeJaime, and for financial support for this project from Temple University.

JD Candidate, Temple University Beasley School of Law, Class of 2021.

JD Candidate, Temple University Beasley School of Law, Class of 2021.

JD Candidate, Temple University Beasley School of Law, Class of 2021.


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Vernellia R. Randall
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Professor Emerita of Law
The University of Dayton School of Law

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