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P A R T O N E

Creating the Context
for Social Policy Analysis
The Social Problem
and Judicial Contexts

A man said to the universe:
“Sir, I exist!”
“However,” replied the universe,
“That fact has not created in me
a sense of obligation.”

—Stephen Crane, War Is Kin

Introduction: The Problem of Policy
for Practitioners

The objective of this book is to help readers develop skill in the critical analysis of moder

social welfare policies and programs. The motive is to preserve the sanity and dedication
of social practitioners who, on behalf of clients/consumers, must daily interpret, enforce,
advocate, circumvent, or challenge those policies and programs. Much of the working life
of professional practitioners is spent in the context of those policies and programs. If prac-
titioners are not employed on the staff of an agency administering such programs, they
serve clients/consumers whose lives are affected vitally and daily by those programs: the
client/consumer whose child is detained in a local juvenile detention center or the client/
consumer whose Social Security disability benefit is suspended because a judgment of
work capacity has been changed. Without being concerned about such policies or being

Bacon. Copyright © 2005 by Pearson Education, Inc.
Social Policy and Social Programs: A Method for the Practical Public Policy Analyst, Fourth Edition, by Donald E. Chambers and Kenneth R. Wedel. Published by Allyn and

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prepared to analyze the nature of their strengths and shortcomings, no social worker can
aspire to a professional calling.

Social work is unique for its simultaneous focus on the client/consumer and the
social environment. Like family, community, psychological, and work factors, social
policies and programs are a critical feature of the client/consumer surroundings and
demand every bit as much care and attention from the working professional. For better
or worse, the lives of all private citizens are subject to serious and widespread invasions
by governmental social policy. For those whom social workers serve, it poses a special
stress because it affects lives already burdened with fearsome and demoralizing social
problems: hunger, illness, physical or mental disablement, violence, discrimination, or
disease.

Stephen Crane’s lines at the beginning of this chapter are a moving rendition of
the idea that immense forces are at work in the world, forces that have no concern for
their effect on the fates of particular individuals. Crane means to call our attention to the
idea that an earthquake or a volcano does not consider the suffering it causes to individ-
uals in the cataclysmic changes it wreaks—changes begun long before those individuals
were born, changes whose effects will outlive human memory.

Crane’s point can be extended to modern social welfare policies and programs.
Public policies generally are not designed with the needs of individuals in mind; rather
they are designed for groups of people who share a common social problem. It is of utmost
importance for social work practitioners to understand that because of this feature, so-
cial policies and programs will fail some, perhaps many, individuals on some occasions. This fact
of life is a pervasive problem and a prominent part of the work of most program admin-
istrators. It also identifies an important area of social work practice for those who work
with individual clients/consumers: finding ways to meet clients’/consumers’ urgent and
unique needs that cannot, at first glance, be met through existing programs. Examples
are not difficult to find:

John Samuelson is a construction worker. Every year for the past five years he has re-
ceived notice from the county attorney’s office that Mildred Singer has filed suit against
him for nonsupport of a child she claims is theirs. Each time a suit is filed, John loses
about five working days’ pay because of the time it takes to talk to his Legal Aid attor-
ney, give depositions, and appear in court. Each year thus far, the local judge has dis-
missed the case for lack of evidence because John has denied paternity on the basis that
the baby was born ten and one-half months after he left Mildred. Mildred has admitted
that she lived with other men during the time her child could have been conceived but
nevertheless has identified John as the father. John once received a letter from Mildred
admitting that, contrary to her allegation, she believed another man to be the baby’s fa-
ther, but John’s wife destroyed the letter in a fit of jealousy. John agreed to take a blood
test that, with 97 percent accuracy, tells whether a specific man can be excluded as a
child’s father.1 The test declared that John could very well be the father. The prevailing
judicial policy is to consider the test accurate, within a 3 percent margin of error. John
now must pay $200 per month in child support until the child is eighteen. In fact, Mil-
dred (now the mother of three) does not wish to press nonsupport charges against John

2 P A R T O N E / Creating the Context for Social Policy Analysis

(now the father of four), but federal policy requires applicants for TANF (like Mildred)
to press nonsupport charges as a condition for continuing to receive financial assistance.

Note that in this case, it would be a peculiar moral position to argue that it is somehow
wrong to enforce a public policy that makes fathers financially responsible for their chil-
dren, pursues fathers across state lines to do so, and makes an accurate paternity test
available. The reason, in this instance, that these public policies come to grief is that
they did not anticipate the incredible complexity that characterizes the lives of individ-
ual ordinary citizens. Legal procedures assume—reasonably in most instances—that
people will present all evidence in which clearly it is in their self-interest to do so. A test
that is 97 percent accurate makes very few mistakes indeed; the fact that it might have
made a mistake in this instance must be viewed in the context of ninety-seven other
cases. Most people would be willing to accept the possible injustice done to John. Here
is another example:

Nancy Willard’s arms were burned off below the elbow when she caught them in the
corner of a plastic injection mold. (Hot plastic disintegrates flesh and bone instantly.)
Nancy was a dependable and efficient worker who earned $12 per hour. The law in her
state requires all employers of more than six people to carry Workers Compensation
insurance to provide for just such accidents. Nancy is twenty-eight years old and the
mother of two children. The plant she works in spends a lot of money to keep it accident-
free and has a 99 percent success rate—only two other serious accidents in its ten-year
history. State law specifies that Nancy must agree to a lump-sum settlement of $25,000
in compensation for the loss of both arms below the elbow. Nancy’s average annual
earnings were $25,000—$20,000 net after taxes. She also had $1,000 worth of fringe
benefits per year (medical and life insurance, uniforms, and bonuses).

There is nothing intrinsically wrong with the idea of worker-injury compensation
or with public policy that requires lump-sum settlements. The problems here are with
equity and adequacy that flow from the individual attributes of Nancy Willard. Were
she sixty-four with one year to go before retirement, a $25,000 settlement would be ad-
equate compensation for loss of one year’s work. At the age of twenty-eight, however,
she will lose most of thirty-seven years of wages earned at full working capacity, because
with prostheses to replace her arms, she probably will work at only minimum wage.
Furthermore, she will lose all her earnings for a one-to-two-year period—the time it
will take for surgery, prosthetic fitting, and training. This period alone will cost her per-
haps $20,000, or one year of net income. (Her employer’s insurance company is re-
quired to pay her medical bills.) The $25,000 lump-sum settlement will replace only a
small fraction of her long-term economic loss, and that settlement assumes that rehabilita-
tion will be successful and that she can return to work.

It is clear from these examples that, despite a practitioner’s best efforts and good
policy and program design and administration, some clients’ needs will go unmet. That
knowledge will be the cause of much hard feeling, bad public relations, and personal dis-
tress on the part of the social worker. If a client goes hungry for a week, loses a child, or

P A R T O N E / Creating the Context for Social Policy Analysis 3

loses a job that required months of effort to obtain, simply because public policy could
not deal with the unique circumstances of his or her life, it cannot be easily forgotten or
suffered willingly—nor should it be.

Neither are clients/consumers’ lives measurably improved by drawing sweeping
conclusions that such instances are the result of the corruptness of the welfare system or
its personnel. Although some features of some welfare systems can be shown (on certain
moral assumptions) to be corrupt—and surely there is evidence that some personnel are
corrupt—it is neither useful nor accurate to generalize along those lines. What is in-
tended to be shown by the preceding illustrations is that there are natural limits to the
effectiveness of social policies and programs. The more unique a citizen’s situation is,
the less likely it is that policies and programs will meet his or her need.

Therefore, the question might arise, “If so much deprivation continues because so-
cial welfare programs and policies cannot take individual circumstances into account,
then might it be better if all programs intended for groups of people were replaced with
programs intended for, and consciously designed to meet, individual needs?” This solu-
tion might entail a social welfare system in which persons in need applied for any kind of
assistance to one—and only one—social worker who had access to the resources of all
available programs. If the client/consumer needed financial assistance, the social worker
would decide not only whether but also how much to give. If the client/consumer needed
medical care, the social worker would tell the client/consumer where to get it and would
pay the bill. In fact, this vision might be sufficiently detailed to suggest that all monies
from all current programs be put into one big pot and allocated to each social worker in
proportion to the number of clients/consumers he or she served. The key constraint on
largesse would be that the social worker must ensure that the pot lasts long enough. The
vision might even anticipate that because each package of services and benefits would be
individually tailored, no general standards of need would be necessary. Furthermore, no
paperwork would be necessary because the social worker would be accountable only to
the client/consumer (and to the fiscal officer, to ensure that all monies went to clients/
consumers). The issue here is that this is a legitimate, even plausible, style for the deliv-
ery of social benefits. In fact, a widely used strategy called purchase-of-service contract-
ing (POSC) bears some resemblance to the system envisioned.

Although it is intrinsically appealing, this custom-tailored approach to social pol-
icy is not without problems. For example, every social worker will likely have different
standards for determining how much money, medical care, housing, and so on is
needed. That would result in noticeable differences in benefits among people similarly
situated. That would be a natural enough effect, for treating people individually was the
basic idea behind this way of doing things. Consequently, we have a dilemma here: If we
construct our social welfare system to be adequate in the sense that it meets unique
needs and circumstances, it will be inevitable that some will need and, thus, will get
more than others. But if we construct it so that it is exactly equitable (everybody gets the
same benefit no matter what), it will always be inadequate for those who need more. Eq-
uity and adequacy are two criteria by which modern social welfare programs should be
evaluated. A third criterion is efficiency.

4 P A R T O N E / Creating the Context for Social Policy Analysis

No doubt there are ways in which these inherent conflicts among equity, ade-
quacy, and efficiency could be overcome and still keep social programs sufficiently flex-
ible to take unique client need into account. We would encourage the reader to think
along those lines because that is the way better policy solutions are developed.

However, the search for better solutions also reveals the limits of social welfare
program design and demonstrates an important principle about social policies and
programs: Every policy or program that solves the social needs of one client/consumer
or client/consumer group will create additional problems for another needy client/consumer or
client/consumer group. Social policy and program solutions are inherently imperfect to
some degree and are constantly in need of revision. Far from being the occasion for
disillusionment, it is this very fact that creates the opportunity for service by dedicated
professional practitioners to people in need. Social policies and programs left to their
own devices are unguided missiles, guaranteed to harm the unwitting and unwary.
That danger can be tempered only by frontline practitioners devoted to seeking
humane and rational interpretations of social policies directed toward human needs.
It is the practitioner’s responsibility to know the policy system well enough to do that,
and it is to that end that the following chapters are directed.

N O T E

1. Harry D. Krause, Child Support in America: The Legal Perspective (Charlottesville, VA: The
Mitchie Co., 1981), pp. 213–222. Of course, there are now tests of genetic material to determine
paternity and they are 99.9 percent accurate.

P A R T O N E / Creating the Context for Social Policy Analysis 5

C H A P T E R

1 Analyzing the SocialProblem Background
of Social Policies and
Social Programs

The Nature of Social Problems

Earlier, the point was made that social welfare programs are solutions to social prob-
lems. Notice that not all “problems” are social problems and that they are not all equally
important. Some argue that the “importance” of a social problem depends on two
things: (1) the power and social status of those who are defining the problem and urging
the expenditure of resources toward a solution and (2) the sheer number of people af-
fected. Thus, the more people affected and the greater the social power and status of
those urging a solution, the more important the social problem.

Examples of “big” and “little” social problems abound. Social problems often arise
as a consequence of rare diseases with strong social effects—retinitis pigmentosa, for ex-
ample. A relatively rare congenital defect that prevents those afflicted from seeing in the
dark, retinitis pigmentosa is a medical problem surely, but it is also a social problem be-
cause it creates serious social consequences: For all practical purposes, the sufferer is
blind during more than half the hours in a day. The disease is a small problem to most
people because the number affected is comparatively small. To those so afflicted, how-
ever, it is a very big problem indeed, and they can cite persons of great social stature who
have the defect. But, to date, no one with widespread credibility (power and status) has
presented the problem to the public as a matter of concern, so that to the world at large,
it will remain a minor problem until it either affects more people or is redefined as so-
cially important by a public opinion maker.

Less exotic examples of “big” social problems include unemployment, because
it affects so many people; health, because potentially it affects everyone; what used
to be called mental retardation, because after Rose Kennedy (mother of a U.S. presi-
dent) became a public advocate of the issue, federal appropriations for the problem in-
creased magically.

Whereas not all problems are social problems, of course, many do have impor-
tant social consequences: When someone loses a job, it is a personal problem only for

that individual and his or her immediate family; when a machine operator loses a job
because of modern standards of worker safety or product quality, it is a technological
problem; when there is a declining market for the things the machine produced, it is a
business problem; when consumers no longer have money to buy what the machine pro-
duces, it is an economic problem. When, as a result of any or all of the foregoing prob-
lems, many people lose jobs and are unemployed, or when people of power, wealth, and
social status become concerned about the effects of these problems, such concern be-
comes a social problem. Usually, an existing policy or program solution to the problem
will remain in place at least until the personal, technological, business, or economic
problem that created the social problem is solved. The social program may continue
past that time; for example, social programs such as unemployment compensation
were created to meet human social problems that are created by first-order economic,
business, or technological problems.

In summary, social problems are those concerns about the quality of life for large
groups of people where the concern is held as a consensus populationwide, and/or the
concern is voiced by the socially powerful or the economically privileged. In general, it is
these types of problems that spawn social policies and programs as corrective measures.
Although this account of social problems is certainly not the only one, it is arguably the
one most relevant to those who must understand social problems as a prerequisite of un-
derstanding social programs operated by the social welfare institution.

The purpose of this book is to help readers understand social policies and pro-
grams, and that understanding cannot be complete without the ability to analyze the so-
cial problem which the policy or program is intended to correct. This next section
demonstrates how attention to four specific aspects of social problem viewpoints or state-
ments will yield that basic understanding.

Social Problem Analysis

Understanding a social problem is not quite the same thing as understanding the truth
of “how things really are.” It is not quite the same thing as understanding how highways
are built or trees grow. To understand a social problem is to understand how and what another
person (or group) thinks and believes about the social events being defined as a problem. When
you do that, you are doing an analysis of a social problem. A central aspect of social prob-
lems is that, although the events that identify or define them may be the same no mat-
ter who views them, the way in which those events are interpreted is likely to vary
considerably. That a family of four has, say, $12,000 annual (gross) income is, on the face
of it, an unambiguous fact but one bound to be interpreted differently by different ob-
servers. Whether the fact is interpreted as a social problem depends on the value bias
and ideology used to render that judgment. For example, a person might believe that
beef, beer, alcohol, or tobacco is vital or that no child should share a bedroom. In that
case, then, $12,000 per year is unlikely to provide for those minimum standards for four
people, and the straightforward conclusion is that a $12,000 annual income is an indi-
cator of the presence of a social problem called poverty. However, notice that these stan-

8 P A R T O N E / Creating the Context for Social Policy Analysis

dards clearly are value-biased; they are founded on cultural preferences; most people
outside North America survive on far less.1

Note also how the reason for the existence of the social problem can vary with the
viewer. Based on one kind of idea about how the economy and labor markets work, one
person might say that this low income was the result of the skill this worker offered to
an employer, the employer’s need for it (how good business was), how good a worker the
person was (productivity), and how many other people offered the same skill and effort
(competition). Another person might say that the low income that creates this social
problem is caused by the tradition among employers to pay workers according to the so-
cial status and prestige of the work they do and the families from which they come. The
point in the initial stage of social problem analysis is not to decide whether the view-
point presented is right, but to sort out what is being offered by way of explanation.

It should be clear from the preceding examples that the way social problems are
understood is highly variable and depends on the viewer. On that account, there is no
such thing as the “right” or the “only true” social problem viewpoint. Social problem
viewpoints may be factual or not, clear or muddled, complete or incomplete, logical or
illogical, or even useful or useless, but they are not right or wrong in some absolute
sense. An unemployed person who has seen savings wither to nothing, while debts
mount and children go hungry, will view the general problem of unemployment as ex-
cruciating, whereas those who believe they are paying high taxes so that the unemployed
can loaf will not view it that way. Those who are outraged at a society that permits un-
employment will view the problem differently from those for whom unemployment is
merely a newspaper item. Unemployed persons stress food for children, whereas tax-
payers stress the cost of that food and current events followers stress the difference be-
tween this year’s and last year’s unemployment figures. No one is wrong in any absolute
sense here, and the basic issue for the person who wishes to understand social policies
and programs is the viewpoint on which every social policy and program is based.

The social problem analysis does not begin by judging whether something is right
or wrong; rather it must await a clear understanding of the social problem viewpoint it-
self. The final thing to do in a social problem analysis is to make moral judgments about
the argument; the first thing to do is to specify what the viewpoint is and how it differs
from others. The reason for bearing down so hard on this idea is twofold: (1) Social
problem analysis is a demanding task, and (2) at the end of the chapter, you will do analy-
ses of the social problem viewpoints of other persons. In doing the exercises, another
caution for the beginner is to be sure to hold your own views very much apart while doing each
social problem analysis. Your own views are very important, but you will find that initially
it takes some discipline to avoid letting them get in the way of the viewpoints of the writ-
ers whose materials you will analyze.

The remainder of this chapter is taken up with a discussion of the four dimensions
to consider in doing a social problem analysis:

1. Identify the way the problem is defined.
2. Identify the cause(s) to which the problem is attributed (its antecedents) and its

most serious consequences.

C H A P T E R 1 / Analyzing the Social Problem Background 9

3. Identify the ideology—the values, that is—that makes the events of concern come
to be defined as a problem.

4. Identify who benefits (gains) and who suffers (loses) from the existence of the
problem.2

There are other aspects of social problems, of course (history and legal status, for ex-
ample), and they will be discussed in later chapters.

Problem Definition
It is essential to begin a social problem analysis by determining its distinguishing marks
or identifiers, that is, to state the concrete observable signs by which its existence is to be known.
A social problem can be identified in a wide variety of ways. For example, one way to
identify the problem of drug abuse is by noting the use, intentional exposure to, or in-
gestion of any illegal chemical substances in a nonmedical way (not prescribed by a physi-
cian). Thus, the nonmedically prescribed use of an illegal substance identifies this social
problem. Another way is by defining drug abuse as an addiction; for example, defining
drug abuse as occurring when most daily life affairs and social encounters are organized
around the problems and pleasures of obtaining and using a chemical substance. Here
the indicator of the existence of a social problem is determined not by the use or the
legality of the chemical, but by its preeminence and the amount of time devoted to it in
the user’s life. The indicator here is an observer’s judgment of the prominence of drug
use in daily life.

Obviously, it makes an enormous difference whether the former or latter defin-
ition of the problem is chosen. For example, the first definition includes the occa-
sional marijuana smoker and the long-haul trucker’s use of amphetamines. The latter
definition does not include such instances but does include all alcoholics and many to-
bacco smokers. Not only would conclusions about the qualitative nature and the num-
ber of people affected differ in each case, but also conclusions about what kinds of
people comprise the social problem group would differ radically. Clearly, it can be
seen how different social programs would be depending on which view of the social
problem is adopted. Using the first definition, we are likely to see a law enforcement
approach, for example, the “War on Drugs.” Adopting the second definition we would
expect to see addiction prevention and treatment programs.

Even though social policies and programs are usually designed to solve social
problems, sometimes (as noted earlier) the social policy or program creates social problems of
its own. This fact immediately creates interesting complications for the analysis of social
problems. Some examples follow. Long stays in mental hospitals are said by some to not
only worsen the condition of a number of the mentally disabled but also create “insan-
ity” in some patients who were never “insane” in the first place. Another example can be
found in the case of no-fault divorce. The no-fault divorce policy was created to allow
for an amicable divorce process and greater flexibility in the law for determination of al-
imony, child custody, child support, and allocation of property. It also makes divorce
easier to get. It is the latter point that critics of the policy/practice believe has led to in-

10 P A R T O N E / Creating the Context for Social Policy Analysis

creased rates of divorce in this country,3,4 and economic hardships for divorced women
and their children.5 A third example, which we will consider in greater detail, is the fed-
eral minimum wage.

Hourly wages are subject to economic changes over time. When the economy
grows at a healthy pace and wages rise, the working poor benefit (assuming decreased
purchasing power does not cancel out wage gains). On the other hand, economic down-
turn and stagnation tend to be accompanied by wage erosion. Other factors being equal,
wage erosion has very negative effects on the working poor, and we see poverty rates
rise. Minimum wage policy is intended to reduce the burden of poverty for the working
poor by requiring employers in covered employment to pay a minimum hourly wage. A
federal minimum wage covers employees who work for certain businesses or organiza-
tions (“enterprises”) that have at least two employees and do at least $500,000 a year in
business; or are hospitals, businesses providing medical or nursing care for residents,
schools and preschools, and government agencies. Individual coverage when there is no
enterprise coverage includes workers involved in “interstate commerce.” Domestic ser-
vice workers (such as housekeepers, full-time baby-sitters, and cooks) are also normally
covered. States and some U.S. territories have their own minimum wage laws as well
and in some cases result in expanded coverage for workers and higher minimum wage
rate.

The federal hourly minimum wage was first established by Congress in 1938, and
it has been increased nineteen times since then. In 1997 the federal minimum wage was
set by Congress at $5.15 an hour. Critics argue that the federal minimum wage creates
unemployment. Walter E. Williams believes the federal minimum wage is a foolish and
expensive undertaking. He presents his argument on this subject in the quoted material
that follows.

Minimum Wage—Maximum Folly6
Federal minimum wage laws represent a tragic irony. In the name of “preventing worker
exploitation,” “providing a living wage,” and “reducing poverty,” these measures in
fact impede the upward mobility and increase the dependence of the most disadvan-
taged among us. National leaders, including black leaders, fail to recognize that many
economic problems faced by a large segment of the black population are the result of
government-imposed restrictions on voluntary exchange.

The Strange History of Unemployment for Black Youth
Today’s youth joblessness is unprecedented: nearly 40 percent among blacks and 16 per-
cent among whites, nationally. Black youth unemployment in some major cities is esti-
mated to be 70 percent. In dramatic contrast, black youth unemployment in 1948 was
9.4 percent and white youth unemployment was 10.2 percent. In further contrast to
today, until 1954 blacks in every age group were at least as active in the labor market as
whites were.

These facts demand that we challenge the official and popular explanations of
current black youth joblessness. Employers have not become more discriminatory.
Black youth of earlier times were not better skilled or educated than their white counter-
parts. Neither can we attribute the problem to slow economic growth. Even during the

C H A P T E R 1 / Analyzing the Social Problem Background 11

relative prosperity of the sixties and seventies, black youth unemployment rose—both
absolutely and in relation to white youth unemployment. The real explanation lies in
the limitations of law itself. By increasing the minimum wage, Congress has caused a
significant loss of job opportunities for young blacks. When employers are required to
pay a minimum labor price of [$5.15] an hour, they have no economic incentive to hire
workers whose labor value, in the production of goods or delivery of services, may be
only $4.00 an hour. Congress can legislate a higher wage, but it cannot legislate that
workers be more productive. Because Congress has not yet seized complete control of
personnel operations in private firms, the minimum wage law thus discriminates against
the low-skilled.

Basic Economics and Practical Politics
A law that reduces opportunity for some almost always increases it for others. To see
how the minimum wage law accomplishes this, recognize, as economists do, that low-
skilled labor and high-skilled labor can often be substituted for each other.

Imagine an employer can build a particular fence by using three low-skilled
workers each earning $42 a day ($126 total labor cost per day), or by using one high-
skilled worker who earns $110 a day. To minimize labor costs, the employer hires the
high-skilled worker.

But suppose the high-skilled worker suddenly demands $155 a day. The fence
firm then hires the three low-skilled workers, and the high-skilled worker loses his job.

On the other hand, the high-skilled worker may understand politics and eco-
nomics. He may now join with others like himself and lobby for a minimum wage law
of $50 a day (claiming noble motivations like “prevention of worker exploitation” and
“provision of a living wage”).

Once the $50 minimum wage is law, the high-skilled worker can demand and get
his $110 a day—because it now costs $150 to build the fence using low-skilled labor. By
law, the high-skilled worker’s competition is priced out of the market.

Williams argues that aside from causing unemployment for some, minimum wage
policy has additional negative consequences. He believes the policy is an “incentive to dis-
criminate.” “If an employer must pay a minimum of [$5.15] an hour no matter whom he
hires, he may as well hire someone whose color he likes.”7 Williams further indicates
that the policy discriminates against young people because it discourages employment
of low-skilled workers—and it is usually young workers who have the least skills.

If joblessness merely deprived young people of pocket money, we might shrug it off as
another consequence of foolish government intervention. But early work experience
produces more than money. It produces pride and self-respect. It lets a worker make
mistakes when they are not terribly costly—when there are probably no dependents
counting on the worker for continuous income. These labor market lessons are critical,
particularly for minority youths who attend grossly inferior schools, where these
lessons are not learned.8

Williams adds that much of the crime and other antisocial behavior among many of
today’s youth may be attributed to lack of job opportunities. And he attributes high un-
employment among youth to minimum wage policy.

12 P A R T O N E / Creating the Context for Social Policy Analysis

Note in this example how the focus is on unemployment. What is central for
Williams in the material quoted here is that the minimum wage law by creating unem-
ployment “impedes upward mobility and increases the dependency of the most disad-
vantaged.” Employment is important for Williams because it is the key element in
upward mobility and economic independence. Thus, the central social problem defined
here is unemployment, the immediate cause of which are certain features of the mini-
mum wage law; the central values that are thought to be threatened here are upward mo-
bility and economic independence. Note that Williams does not tell us exactly what he
means by unemployment. It is clear that he is not as concerned about the level of pay as
the number of available low-paying jobs. He believes that this is the major problem among
black youth.9 Others might disagree. We should point out that subsequent to Williams’s
report, the federal minimum wage law was amended in 1996 in a way that may have
changed his analysis. The amendment established a subminimum wage of $4.25 an hour
for employees under 20 years of age during their first 90 consecutive days of employ-
ment with an employer. The effect of this policy change on Williams’s argument would
be a concern to the present-day policy analyst.

Social problem analysis should state the concrete measures and indicators of the
social problem of concern more clearly than Williams does. Definitions that are spe-
cific, concrete, and measurable are useful in these respects:

1. Everyone then knows precisely to what he or she refers.
2. It is possible to construct comparable estimates of incidence and prevalence so

that quantification, importance, and change over time can be judged.
3. It makes it possible to discuss causation. Unless the problem is clearly defined, it

is fruitless to discuss causes: What is it that is being caused? It is also fruitless to
speculate about “solutions” under these conditions.

Note that here a definition is not “good” or “bad” because you either agree or disagree
with it. It is common to have serious disagreement about how a given social problem
should be defined. For example, many people have disagreed violently with a definition
of institutional racism (a serious social problem, surely) that refers to differential access
to institutional resources on the basis of color. That definition implies that if people of
color have lower-quality education (for whatever stated reason), it is first-order evidence
of white racism. Such a definition is one of the central issues around which the whole
school-busing-to-achieve-integration argument has revolved. Are blacks and Latinos the
victims of white racism because, for example, their school districts have less taxable prop-
erty yielding less tax revenue, which results in fewer resources for education in that dis-
trict? Based on the preceding definition of racism, the example unequivocally constitutes
racism. Following some other definitions of racism, particularly those that define racism
as overt and intentional discrimination based on color, this would not be an example of
racism because no “intentional” discrimination can be distinguished.

The point is that both definitions are “good” insofar as definitions go, regardless
of which you think is the better. The criteria for definitions revolve around clarity, not
“truth”; therefore, both definitions are satisfactorily clear. On ideological or value

C H A P T E R 1 / Analyzing the Social Problem Background 13

grounds, we would argue that the first definition is preferable to the second, but that is
a different issue than whether it is a clear definition.

Earlier, the statement was made that the importance of social problems—in fact
their rise to public consciousness—depends not only on the social status of those who
speak publicly about them but on the sheer number of those who are affected as well. Be-
cause of the latter factor, you should expect the problem-definition section of careful social
problem analysis to give attention to a presentation of the quantitative dimensions—the
sheer size—of the problem: estimates of the number of persons (or families), estimates of
the percentage or proportion of the total population affected; estimates of the demo-
graphics of the problem (e.g., the numbers and percentages of the different ages, sexes,
and geographic localities affected). In looking again at the Williams presentation of the
social problem of minimum wage, you will see how carefully he has quantified the prob-
lem for us. He notes that in 1979, youth joblessness was nearly 40 percent for blacks and
16 percent among whites nationally. He adds demographic data showing that unemploy-
ment for black youths in particular cities is as high as 70 percent. He could have carried
this kind of analysis even further (and did in other places where his work is published), as
you might imagine. Quantifications such as these are often very important in judging the
adequacy of social programs and policies to solve the social problem. Without such data,
it is impossible to determine whether, for example, the eligibility rules or other features
of the program are directing program benefits and services to the people who have the
problem or are directing the most benefit or service to those who are affected the most.
Furthermore, adequacy of funding for the program cannot be assessed without some idea
of how many people are affected. Do not be misled by thinking that quantification is im-
portant only in regard to this example concerning minimum wage and youth unemploy-
ment; quantification is crucial in the analysis of any social problem. Child abuse, for
example, cannot be properly understood without some idea of how widespread it is or the
types of people and families in which it appears the most frequently.

Another way in which to deepen the understanding of social problems is to present
common variations within the problem category itself. The author of a social problem
presentation is very likely to refer to several subtypes of these and expend some effort at
distinguishing among them. For example, in discussions about the social problem of
crime, distinction is made among the legal subtypes of crime: premeditated homicide,
felony murder, manslaughter, and assault. These are legal categories, but they also may
serve the social problem presenter well in giving the opportunity to speak of different
causes for different subcategories, to speak of different ideological issues, to speak of dif-
ferent prevalence data for each, and so on. In fact, it is not uncommon for the discussion
to direct itself mainly to a single subtype, particularly where the broader problem is not
well understood or is particularly complex. For example, you are most likely to read
about sexual abuse apart from a discussion of child abuse in general. The task of social
problem analysis is to track the subclassifications being used, that is, how much and in
what regard a narrowing of focus has occurred. One reason for this careful tracking is to
avoid being misled by later data that are presented about the problem. Sometimes, for ex-
ample, social problem presentations will focus only on a subtopic but will present data on
the whole social problem. Sometimes this is intentional mischief; other times presenters
themselves are unaware of the error.

14 P A R T O N E / Creating the Context for Social Policy Analysis

Causes and Consequences
Another factor to consider in doing a social problem analysis is what causal explanations
are offered as to why a social problem has come to exist. But sometimes the focus is not
on explanation at all, rather on predicting consequences that will follow from the social
problem. Sorting out this pattern of attributed causes and consequences is at the core of
analyzing a social problem viewpoint for causation. A primary goal of the analysis is to
discover whether it is the causes (antecedents), the consequences (effects), or both that
are of utmost importance to the particular social problem presentation being analyzed.
One way to separate antecedents from consequences is to try to diagram, to capture
what is being said by setting down on paper what appears to be the causal pattern the au-
thor is asserting.

Causal patterns can be described in many ways; one simple method is to describe
what will be called causal chains. A causal chain consists of a set of events (or variables or
factors) arranged in a time sequence that shows the social problem event that is to be
explained—what comes before the event and, therefore, is said to “cause” it and what
comes after the event and is said to be a consequence. Causal chains are to be read from
left to right so that the “event-to-be-explained” is always some variable to the right of
the center of the chain. If only antecedents are of concern, the social problem event-to-
be-explained will always appear on the far right of the causal chain. Let us now focus
only on such causal chains as these, for simplicity. Figure 1.1 presents a simple causal
chain “explaining” high unemployment rates (follow the arrows).

It should be clear that this is neither the only, nor even a complete, explanation for
unemployment, only one plausible explanation. Remember, the object here is to find

C H A P T E R 1 / Analyzing the Social Problem Background 15

High interest rates by
banks and lenders

Low rates of investment in
plants that provide new jobs

Fewer new jobs
for workers

More workers
unemployed

Increases in
unemployment rates

FIGURE 1.1 A simple causal chain “explaining” high unemployment.
Source: Based on Walter E. Williams, “Minimum Wage—Maximum Folly,” The SmithKline Forum for a
Healthier America, 1(6) (September 1979): 1–6.

the expressed belief about the causes of the social problem. This causal chain could also
be used to explain poverty and economic deprivation because poverty can be a result of
the fact that people are just not working and earning wages. However, another author
concerned with poverty and economic deprivation might explain it on the basis of high
prices rather than low wages. That causal chain might look something like the one in
Figure 1.2.

Some causal chains or “explanations” can be very complicated. We can put both
these diagrammed causal chains together and add some other features to generate a
broader and more complex explanation of poverty. Thus, Figure 1.3 shows how both
high prices and low earnings produce poverty; it also shows some of the reasons for high
prices and low earnings.

Let us now return to Williams’s analysis of the minimum wage law and its rela-
tion to unemployment. Could we express Williams’s argument in the form of a causal
chain? We would suggest the example in Figure 1.4 as appropriate to Williams’s line of
reasoning.

Note that although Williams has not spoken explicitly of an employer’s profit mo-
tive, it is crucial to understanding his argument. Discussions of social problems do not
always make explicit all the assumptions they make in presenting their explanations for
the cause of a social problem. One of the reasons for making a special effort to under-
stand an author’s explanation for a social problem is to uncover “hidden” assumptions.

16 P A R T O N E / Creating the Context for Social Policy Analysis

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Poverty or economic
deprivation

FIGURE 1.2 A simple causal chain explaining poverty and economic deprivation.
Source: Based on Walter E. Williams, “Minimum Wage—Maximum Folly,” The SmithKline Forum for a
Healthier America, 1(6) (September 1979): 1–6.

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Ideology and Values
Another crucial aspect of a social problem analysis is the identification of major ideo-
logical positions and value biases embedded in a description of a social problem. For our
purposes here, by a value, we mean simply a conception of what is preferred. Values ex-
press a vision of how things “ought” to be. Note that value statements can be simple or
complex, but in the end, they need no justification because they are personal or cultural
preferences. For example, if poverty as a social problem is identified by a lack of mini-
mum nutritional standards, a value stance is implied that prefers that no one be hungry.
However, if poverty as a social problem is identified by some large difference between
annual incomes of certain types of citizens, a value stance is implied that prefers that in-
come be more equally distributed, without respect to the differing needs of individuals or
any concept of how social merit should be rewarded.

Value statements are usually expressed in phrases using the words should, ought, or
must. For example, the statements, “No one should be hungry” or “Employers should
not refuse a job because of an applicant’s racial background” are value statements using
should terms. Value statements are usually more numerous and more complex than can
be stated in single sentences. On that account, and for our particular purposes, let us use
the term ideology to refer to sets of value statements.

Sometimes it is difficult to disentangle value and knowledge statements. Ideol-
ogy is built from value statements, and explanations and causal chains are built from sen-
tences that describe what is the case about one thing or another. These latter sentences
are “factual” statements, statements asserting what exists. Recall that value statements are
sentences about what is to be preferred. So, it is one thing to say, “No human being should
be hungry” (a value statement, a statement of preference), but it is another thing to say,

18 P A R T O N E / Creating the Context for Social Policy Analysis

Minimum-wage
law requiring (for
example) $5.35
per hour wage

Workers who cannot produce
a unit of goods or services
the employer can sell for
$5.35 times the hours it took
to make the unit

No profit (or a loss)
for the employer

Decision not to hire

Higher unemployment rates

FIGURE 1.4 An analysis of the minimum wage law in a causal chain.
Source: Based on Walter E. Williams, “Minimum Wage—Maximum Folly,” The SmithKline Forum for a
Healthier America, 1(6) (September 1979): 1–6.

“From 12 to 15 percent of the U.S. population lives in conditions of poverty in which
they are hungry some part of each week” (a statement of fact). The operating terms are
italicized. Again, value and ideological statements feature verbs such as should, ought, or
must; knowledge and factual statements feature verbs such as are and is. The reason it is
sometimes difficult to disentangle value and knowledge statements is that they concern
the same event; it is important to distinguish between the two statements because they are
intended to deliver two very different messages. The correct reading of the message of the
value statement gives the reader of a social problem description advance information
about outcomes that the author will advocate. The correct reading of the message in the fac-
tual statements of the causation analysis will give the reader advance information about the
kind of program interventions or policy or legislative changes the author will seek.

Let us now return to the Williams material on minimum wage just to search for
examples of the difference between value and knowledge statements. Our conclusion
was that Williams’s causal argument necessarily entailed a statement about employers’
profits. That is a factual statement as it stands—that is, we are saying that Williams im-
plies that employers do consider the effect on their profit in making hiring decisions.
Note that it would be a value statement if it involved some term such as should or ought:
“Employers should consider profit . . . , and so on, in their hiring decisions.” The point
is that his argument does not say that; all it says is that employers do consider that issue.

Unfortunately for us, the value statements in the Williams excerpt are not distin-
guished by the presence of the revealing verbs should and ought. Therefore, to identify his
ideology, we must search for statements whose meaning is not substantially altered by
transforming them into statements containing should and ought terms. For example, we
cannot take such a statement as “Black youth unemployment in some major cities is esti-
mated to be 70 percent” and transform it into the statement, “Black youth unemploy-
ment in some major cities should be 70 percent” and contend that we have not changed
the meaning radically. However, we can take a sentence from the first paragraph of the
excerpt and transform it into a value statement without altering its meaning. Thus: “Fed-
eral minimum wage laws represent a tragic irony. . . . [T]hese measures in fact impede the
upward mobility and increase the dependence of the most disadvantaged among us.” We
can restate this sentence as a value statement as follows: “Impeding upward mobility and
increasing the dependence of the most disadvantaged among us are effects of the mini-
mum wage law that we should not allow.” What we have done is to take a cue from the
phrase “tragic irony” and interpret it to be equivalent to saying that there are effects of
the minimum wage law that should not occur.

Gainers and Losers
The focus of this aspect of social problem analysis is on three things: (1) who loses and
gains, (2) what kind of gains and losses are involved, and (3) how much value is entailed. The
reason to examine this angle is that it is not always obvious what losses and costs are of con-
cern; different groups value different kinds of losses and costs. We do not trouble to take
a stand about a social problem unless we are concerned about a loss of some kind, so in al-
most any social problem description, some attention is paid to the issue of losses and costs.

C H A P T E R 1 / Analyzing the Social Problem Background 19

The first principle here is that social problem costs (losses) are seldom, if ever,
shared equally among citizens. The first question is, “Who loses most?” In some ulti-
mate sense, there is probably no citizen who is not affected in an indirect way by all so-
cial problems. The issue here is to identify those who pay the biggest costs. For example,
it is quite clear that the group that pays the biggest cost of the very high rates of crime
in inner cities is made up of the local inner-city residents themselves. It is they who are
robbed, raped, mugged, and murdered. There are also indirect costs shared by all tax-
payers, for example, emergency room costs of violent crime. On the other hand, by any
measure, the most prominent victims of the “white-collar crime” of tax evasion are the
middle-income classes, who pay the biggest share of the taxes collected by the U.S.
Treasury. They bear most of the cost of the social problem because they must pay most
of the extra tax needed to make up for the evaded taxes.

One of the important costs of the social problem of maintaining the health of the
population is the dollar costs of medical care for the aged. Those costs are paid largely
through Medicare, a Social Security subprogram financed by the Social Security health
insurance withholding tax paid by those now in the workforce. The amount withheld
from the preretirement wages of those now receiving medical care was always far less
than present average costs, so current recipients cannot be said to have paid for the
Medicare benefits they now receive. That is not necessarily because of their unwilling-
ness to do so but simply because (1) many people retired before Medicare was enacted,
(2) the costs of medical care have risen enormously in recent years, (3) wages were less
inflated in earlier years and, therefore, (4) contributions for Medicare were less. In ad-
dition, no one foresaw the incredible advances in medical care now available—for ex-
ample, the expensive medical technology developed mainly for the older population:
bone and joint transplants and heart bypass procedures. The unpredicted costs here
are paid from the contributions to Social Security by those who now work and pay
withholding taxes. Note carefully that what has been said has not yet judged the way
these charges are distributed; such judgment will evolve from the shoulds and oughts of
the value and ideology analysis.

Sometimes, very small details designed into public programs make an important
difference in who ends up paying the biggest share of the costs. Consider again the ex-
ample of wage losses for workers permanently and totally work-injured who receive
workers’ compensation benefits. Lost wages are the amount a person could be ex-
pected to earn (at present wage levels) from the date of injury to the date of retirement.
It is a cost to the worker when not all of the loss is repaid by the workers’ compensation
program. It is a cost to taxpayers when the workers’ compensation benefit is not paid at
all or is so insufficient that some other public welfare benefits must be paid to keep the
disabled worker and his or her family afloat. However, it is a different case when a com-
pany buys workers’ compensation insurance coverage that is sufficient to pay the
worker’s full lost wages but increases the price of its product or service to pay for the insur-
ance. Thus, it turns out that the consumer is actually paying for the worker’s injury.
These examples show why it is important to take careful notice of who pays social
problem costs; existing social program details can and often do make substantial
alterations in what would appear to be the obvious pattern of cost bearing for social
problems.

20 P A R T O N E / Creating the Context for Social Policy Analysis

After considering who loses from a social problem, the next issue to consider is the
type of loss involved. In the preceding examples, money (or income) was the prominent
kind of loss of immediate concern. Other concerns—pain, discomfort, inconvenience,
time, and geographic dislocation—are examples of other types of losses that sometimes
are discussed in presenting social problems. One obvious example is found in discussions
of the social problem of abortion. For some, the concern is the loss and costs of the ex-
tinction of human life; for others, the concern is each woman’s loss of autonomy over her
body and its products. Much of the argument here turns on precisely what type of loss is
viewed as important. Similarly, the social cost of a brutal beating might be said to be pain,
disablement, discomfort, injustice, shame, and terror—which could be said of most vio-
lent crimes, including rape. Although some of these social costs can be said to be subjec-
tive in some sense, none would argue that they are unimportant, incalculable, or
uncompensable.10

Sometimes, social problems incur costs that revolve around the loss of potential
gains rather than immediate losses, monetary or otherwise. For example, one of the
costs for the parents of a severely developmentally disabled child may be in what those
parents are prevented from doing by way of their own future employment, further edu-
cation, or professional advancement. They may have to choose among spending their
future caring for such a child at home, working, or obtaining further business or pro-
fessional credentials that would advance their incomes. To the extent that increased
income and enhanced employment can increase social standing, the consequence of
the social problem of having a child with developmental disabilities can certainly incur
cost in status. Other social problems also can incur heavy status costs; for example, a
cost of crime or mental illness to the families of those involved can be negative social
labeling that results in losses in both social status and personal esteem.

Finally, consideration must be made of the magnitude of costs—how much (whether
money or some other measurement). It is convenient to express social costs in dollar
terms because that measurement is easily interpreted by a wide audience. There are
widely accepted ways of translating almost any kind of loss into dollar terms. The
value of life is translated daily into dollar terms when civil courts hand down judicial
decisions—for example, whether a physician was guilty of malpractice in a patient’s dis-
ablement or death or whether a certain dollar value relieved “pain and suffering.” We will
not discuss further exactly how these more subjective losses are translated into money
losses, except to say that economists do it by imagining (or gathering data on) how much
most people would be willing to pay either to get rid of the effects of particular pain or
suffering or status loss or how much someone else would demand to take on the prob-
lem intentionally. One simple test is to ask yourself, for instance, how many dollars it
would take to get you to take on the care of a severely intellectually disabled child in your
own home or to have it generally known that a close family member is mentally ill or
imprisoned for a serious crime. Estimating the magnitude of social costs of a social problem
is an important process in understanding a social problem because doing so provides at
least one standard by which a problem’s “importance” can be measured both absolutely
and relatively to other social problems.

If the first principle is that social problem costs are seldom shared equally among
citizens, then the second principle is that some people and some social groups actually benefit

C H A P T E R 1 / Analyzing the Social Problem Background 21

from others’ social problems. It is quite possible that some social problems are not solvable
in any important and immediate sense simply because they create benefits that others
are reluctant to give up. The general—albeit unsavory—idea here is that indeed some
people do profit from others’ misery. The extent to which this idea is true is debatable,
but it does not seem wise to assume that such is never (or only seldom) the case. The
most obvious evidence of this truth is the documented fact that a small number of people
profit handsomely from others’ addictions (liquor, tobacco, pharmaceuticals, illegal nar-
cotics, and such). Less obvious is how this principle operates in relation to other more
controversial social problems like unemployment, physical disablement, and aging. For
example, it is not merely cynical to observe that the lower the general level of employ-
ment, the more welfare recipients will be forced into the workforce and, therefore, the
larger is the pool from which employers can draw low-wage employees. Employers of
unskilled labor would certainly seem to profit from reduced welfare benefit levels and
high unemployment. (It is Williams’s point that if minimum wages drop, unskilled teen-
agers will profit as well.)

It would be unfortunate to conclude that only employers benefit from the existence
of social problems. One rather well-known line of social analysis views racial and ethnic
prejudice and discrimination as one means of establishing an “underclass,” a scapegoated
“bottom-of-the-social-ladder” group, against whom all other classes and types can be
measured and positively valued. Theoretically then, wherever racial discrimination re-
duces competition from persons of color, whites must gain in terms of money and status.
Some believe that the big gainers from the social unrest and racial tensions of the sixties
and seventies were not working-class blacks but the black middle class, who achieved
gains in income and increased their entrance at educational institutions and their starts
up career ladders. Another commonly discussed example is the ability of the health cor-
porations to profit from disease. And, in fact, all professional practitioners profit from so-
cial problems; if there were no social problems, there would be no need for social workers
or human service personnel at all. But, be careful with that claim. Showing that a profes-
sional makes a profit isn’t enough to establish that professionals themselves contribute to
continuing the existence of a social problem. Professional profit is not a serious issue un-
less it can also be shown that personal profit rather than benefits to clients/patients or
consumers has first priority.

Understanding who profits from the existence of a social problem can reveal the
forces that act against its elimination. It is very likely that where a shortage of good hous-
ing exists and profits are being made from existing stock, associations of rental prop-
erty owners, in serving their own interests, will oppose the building of public housing.
Similarly, it is unlikely that the American Medical Association will support the creation
of a large number of medical schools—despite evidence that all citizens would get better
medical care at reduced cost if the patient–physician ratio were decreased. It is equally
unlikely that traditional craft unions (plumbing, carpentry, toolmakers) will admit mi-
norities for fear they will become job and career competitors—especially in a stagnant
economy in which the threat of competition willing to work for less wages is keenly felt.
The point is that the social problems of unemployment, housing, health, and racism all
have some built-in resistance to solution simply because they generate strong economic
and status rewards for other citizen groups.

22 P A R T O N E / Creating the Context for Social Policy Analysis

The next section shows how conclusions from a social problem analysis are used
to shape the basic features of a social policy or program.

Using the Conclusions of Social Problem
Analysis to Design Social Policies and Programs
and to Judge Their “Fit” to the Social Problem

When political scientists, students of government, or sociologists study a social policy or
program, their interest is centered on explaining it as a fact of social life, that is, how the
policy or program came to be, what broad social function it serves, or why it appeared in
one form and not another. The social practitioners for whom this book is intended have
different questions in mind because their interest lies in how social policies and programs
can be instrumental in solving, or helping to solve, social problems for their clients. How
much difference does this program or policy make to those who suffer from the effects of
the social problem?11 Qualitative judgments about the merit of a social program or policy can-
not be made without reference to the original understanding of the social problem. The idea here
is that social policies and programs should be judged against the needs and causal analy-
sis implied in the conclusions of the study of the social problem. Social policies should
not be designed in the abstract or in relation to more or less random ideas about the na-
ture of the social problem toward which they are directed as a solution.

Table 1.1 contrasts the components of social problem analysis with the basic ele-
ments of social policies and programs. What is the relationship between the two?

Consider eligibility rules, in their most elementary sense, as policies that tell
who should and should not get benefits or services. Then ask the question, “Does a prob-
lem definition influence how such a rule could be constructed?” The most straightfor-
ward answer is that ideally an eligibility rule should make services and benefits of the
program available only to those who have the problem, a determination based on who
meets the terms of the problem definition. Conversely, the rule should make it impossi-
ble for those who do not meet the terms of that definition to receive benefits and ser-
vices. For example, if the social problem of concern is long-term hospitalization of the
chronic psychotic, then an appropriate eligibility rule might be found in the current
American Psychiatric Association Diagnostic and Statistical Manual (DSM-IV-TR). Thus,
the eligibility rule should restrict benefits and services to individuals with “Delusions,
hallucinations, or . . . disturbances in the form of thought.”12

The “fit” with which we are so concerned here is not just a matter of its being log-
ically “neat,” because the lack of fit has serious consequences. For example, a program
can either overlook needful citizens (underinclusion) or is more expensive than it should
be (produces overwhelming cost) because program benefits or services are wasted on
those who do not have the problem and do not need the benefits. Furthermore, without
a clear eligibility rule in place, it is impossible to determine whether a program or policy
had an impact on the problem and, thus, whether the causal explanations in the analysis
were right. Data on the results of the program are useless if contaminated by (1) inclu-
sion of those whose problems the program was never intended to solve or (2) data from

C H A P T E R 1 / Analyzing the Social Problem Background 23

an ill-formed eligibility rule that excludes either too many or the wrong people. In the ex-
ample of long-term hospitalization of psychotics, no one would be able to tell whether
people with a chronic psychosis and a history of long hospitalization could be helped by
a programmed intervention that involved their living outside an institution indepen-
dently if, for example, nonpsychotic chronically delinquent youngsters and the senile el-
derly were accepted into the program by an ill-fitting or misapplied eligibility rule. Not
only might important resources be misdirected and, therefore, unavailable to those for
whom they were originally intended, but also the chance to learn something about the
validity of the ideas in the social problem analysis would be lost.

A few eligibility rules are not constructed out of their relationship to the social
problem. The fact that any honorably discharged veteran is entitled to free hospitaliza-
tion in any Veterans Administration hospital is clearly a welfare benefit according to the
generally accepted definition (a material gain resulting from the direct or indirect redis-
tribution of someone else’s income).13 This is not to say that the benefit is undeserved,
but only to make the point that the eligibility rule is not based on the conclusions from

24 P A R T O N E / Creating the Context for Social Policy Analysis

TABLE 1.1 Each Social Problem Analysis Component Specifies an Aspect of a Social
Policy and Program Element

Problem Analysis Component

1. Problem definition (terms)

Subtypes
Quantifications

2. Causal analysis

3. Ideology and values

4. Gainer and loser analysis

Policy and Program Basic Element

Specifies the terms that must be used in the eligibility rules
determining who is/is not entitled to benefits or services and
specifies the general goals to be achieved.
Specifies the specific target populations.
Can specify the priorities on the basis of which one goal rather
than another is chosen when size of the problem is believed to be
the determining issue.
Helps estimate financing needed.
Specifies the particular types of benefits and/or services that must be
delivered to address the problem.
Specifies the type of personnel required to deliver the services or
benefits when causation implicates cultural factors or implies a
particular expertise and/or training or experience of the helper.
Can determine choice of type of eligibility rule (e.g., means test
rather than insurance principle).
Can determine goals by establishing priorities to serve preferred
subcategories of the problem.
Determines amount of financing made available.
Can specify method of financing in which dollar loss is clear,
ability to pay is obvious, and responsibility for loss can be
assigned (e.g., workers’ compensation).

a social problem analysis. Rather, the basis for this eligibility rule is society’s desire to re-
ward those who in serving their country risked their own lives.

The problem-definition aspect of social problem analysis also prescribes the
terms in which the program goals and objectives must be stated. For example, a city’s
summer recreation program that was originally intended simply to provide adult super-
vision for out-of-school children transforms its goal into a grand statement about “pro-
viding for the child’s total well-being during the summer period.” There is nothing
wrong with concern about children’s “total well-being” (although strange that it is only
“during the summer period”), but in this instance, the goal is misguided because it is un-
faithful to the original conception of the problem.

Before leaving our consideration of how qualitative standards for policy and pro-
gram design can be derived from problem definitions, recall that there is a subsection of
the problem-identification aspect called subtypes, which allows for variability within the
social problem to be noted and reviewed; for example, there are key differences between
sexual abuse, neglect, and physical abuse within the larger social problem category of
child abuse. Once a subclass is declared, there should also be some awareness of its nu-
merical—that is, its quantitative—importance. These issues from social problem analy-
sis should guide judgments about whether the goals of the policy or program are
directed toward the whole social problem or only one of its parts; if the concern is with a
subtype, analysis should help determine whether its size warrants priority relative to
other subtypes. Size is not the only determiner of priorities, but it is important to un-
derstand that magnitude provides the basis for a claim on public resources.

Now let us pay some attention to the relationship between causal explanation and
the types of services or benefits delivered. Earlier, we showed how the most powerful
kind of causal analysis proceeds by identifying the factors (variables) believed to be the
crucial determiners of the problem. Where that is the case, it should be obvious that the
types of benefits or services should be those that are powerful in reducing the influence
of those determiners. For example, if the social problem of concern is the physical abuse
of children and the causal analysis identifies severe economic stress as the major deter-
minant of abuse, then among the benefits provided by the policy and program must be
money, goods, or their equivalent to relieve economic stress. If the causal analysis iden-
tifies as the key cause of maternal child abuse, the presence of a nonnurturing, abusive
mother who never shows her daughters how to rear children without physical abuse,
then the program or policy design simply must provide the substitute parent model that
abusing mothers did not get in their own homes.

Even though it would seem that no rational policy or program designer would vi-
olate this simple, straightforward, and obvious idea, that is just not the case. Some pro-
grams, despite their objective to alleviate child abuse based on an understanding of the
problem as described in the preceding theory, in fact only teach about child-development
stages. As uplifting (even useful) as that might be, such a program must be judged to be
a bad fit and an irrational policy. Even the casual observer of social policy and programs
does not have to look hard to find bad examples along this line: One program design is
based on a causal analysis that identifies (reasonably enough) the major factor in poor
social adjustment of some developmentally disabled children as their isolation from or-
dinary children in ordinary classrooms. However, this same program develops a policy to

C H A P T E R 1 / Analyzing the Social Problem Background 25

scatter special-education classrooms for these children throughout ordinary neighbor-
hood schools—but it staggers and limits the daily schedule of the special-education
classrooms so that disabled pupils have no chance to associate with mainstream school-
children either in the classroom or elsewhere. The fit between the causal analysis and
the policy solution is lost because the type of benefit intended as a solution consistent
with the causal analysis turns out not to be the one implemented.

Another possibility is that the causal analysis may direct the program or policy to
employ only certain types of personnel to deliver benefits or services; that is, the causal
analysis creates certain standards for the administrative service-delivery system. As will
be discussed in Chapter 5, personnel specifications are an important feature in benefits
and services. A common example is a causal analysis that explains that some subgroups
of certain ethnic or racial minorities do not apply for important health or school-based
services because of the cultural and language barriers created by nonethnic or nonmi-
nority personnel. When that causal view is taken, a heavy obligation is laid on the per-
sonnel policies of the delivery system: Sufficient ethnic or minority personnel must be
online if the services are to be delivered effectively. Here the issue is not an affirmative-
action agenda or a concern with elimination of racially or ethnically biased hiring prac-
tices. After all, causal analysis can dictate personnel criteria other than cultural or ethnic
features; for example, special expertise, education, or experience.

The analysis of major gainers and losers as a result of social problems is also a
source of rational expectations for social policies and programs. These conclusions are
particularly relevant for specifying methods of financing. When the loss involved is a tan-
gible material or financial loss, one obvious method of financing is implied: The gainers
should repay the losers. In fact, that is exactly what is behind the “victim restitution” pro-
grams operated in relation to the social problem of crimes against property (e.g., theft,
larceny, and misdemeanors). The causal explanation usually invoked by these programs
is that offenders repeat such crimes because (1) doing so costs the offenders nothing out
of their own pockets and (2) offenders never have to encounter their victims face to face
in terms of being held accountable for their criminal acts. Victim restitution programs,
both the direct program cost and the cost arising from the adverse effect(s) of the crime,
ideally should be paid for by the offenders themselves. This financing feature is entirely
consistent with the causal analysis. Another example is the workers’ compensation pro-
gram, the goal of which is to compensate workers injured on their jobs so that their
income will not suffer irremediable damage. Workers’ compensation legislation charac-
teristically assumes that the cause of the income loss is the workplace incident (even
though the personal blame for that accident is not assigned and its determination is not
made a part of the program or policy—a no-fault system). Because the workplace
“caused” an income loss, the policy pursued in legislation is to place responsibility on the
employer to provide insurance payments to pay the cost of replacing the injured em-
ployee’s lost income. Table 1.1 shows examples of these expectations.

Summary

Chapter 1 discussed the central importance of social policy in the professional practice of
social work and other human services. Social policies both create and constrain the pos-

26 P A R T O N E / Creating the Context for Social Policy Analysis

sibilities of any social practice. Central to that understanding is an ability to ferret out the
view of the social problem taken by legislative bodies, policy and program designers, po-
litical critics, and program and policy administrators. An analytic framework—that is, a
set of concepts by which the fundamental dimensions of any view of a social problem can
be understood—was presented. This framework takes into consideration four activities:

1. Identify the way the problem is defined.
2. Identify the cause(s) to which the problem is attributed and its most serious con-

sequences.
3. Identify the ideology and the values that make the events of concern come to be

defined as a problem.
4. Identify major gainers and losers with respect to the problem.

These activities were discussed and examples were given so that readers can learn to an-
alyze social problems. The chapter closed with a discussion of how to use the results of
the problem analysis to make judgments of the merit of the program and to design pro-
grams anew.

E X E R C I S E S

1. Reread Williams on the minimum wage, pages 11 and 12, and the causal chain drawn for
it on Figure 1.3, page 17. Add “maximizing employer’s profit” as an explanatory factor
(antecedent) to the diagram. Then think how it would affect the total diagram and
Williams’s causal argument overall.

2. There are both direct and indirect costs paid by those who lose and gain from the exis-
tence of a social problem. Pick a social problem and show both its direct and indirect
costs.

3. Social problem costs, when they seem to involve things that cannot be priced in a handy
marketplace (physical pain, for example, or fear of street violence or a neighboring district
full of prostitutes and drug dealers, perhaps), can be estimated by imagining that there is
such a market where you can pay (expressed in dollar terms) as much as you would be will-
ing to pay to have it disappear (and assuming you had the money). Identify a social prob-
lem that annoys you and your friends and estimate what you personally would be willing
to pay to be rid of it. Then present the scenario to friends, and collect their “price.”

4. Do an analysis of the social problem viewpoint expressed in the following historical
document. Use the four social problem analysis categories discussed in this chapter.

Dangers in Half-Dime Novels and Story Papers, 188314
Satan stirred up certain of his willing tools on earth by the promise of a few paltry dol-
lars to improve greatly on the death-dealing quality of the weekly death traps, and
forthwith came a series of new snares of fascinating construction, small and tempting in
price, and baited with high-sounding names. These sure-ruin traps comprise a large
variety of half-dime novels, five- and ten-cent story papers, and low-priced pamphlets
for boys and girls.

Again, these stories breed vulgarity, profanity, loose ideas of life, impurity of thought
and deed. They render the imagination unclean, destroy domestic peace, desolate homes,

C H A P T E R 1 / Analyzing the Social Problem Background 27

cheapen woman’s virtue, and make foul-mouthed bullies, cheats, vagabonds, thieves,
desperadoes, and libertines. They disparage honest toil and make real life a drudge and
burden. What young man will serve an apprenticeship, working early and late, if his
mind is filled with the idea that sudden wealth may be acquired by following the hero
of the story? In real life, to begin at the foot of the ladder and work up, step by step, is
the rule; but in these stories, inexperienced youth, with no moral character, take the
foremost positions, and by trick and device, knife and revolver, bribery and corruption,
carry everything before them, lifting themselves in a few short weeks to positions of
ease and affluence. Moral courage with such is a thing to be sneered at and despised in
many of these stories. If one is asked to drink and refuses, he is set up and twitted till
he yields or is compelled to by force. The idea of doing anything from principle is
ridiculous in the extreme. As well fill a kerosene-oil lamp with water and expect a bril-
liant light. And so, in addition to all else, there is early inculcated a distaste for the
good, and the piercing blast of ridicule is turned upon the reader to destroy effectually
all moral character.

Satan is more interested in the child than many parents are. Parents do not stop
to think or look for their children in these matters, while the archenemy is thinking,
watching, and plotting continually to effect their ruin.

Thoughtless parents, heedless guardians, negligent teachers, you are each of you
just the kind that old Satan delights to see placed over each child. He sets his base traps
right in your very presence, captures and ruins your children, and you are each of you
criminally responsible.

Take further instances of the effect of this class of publications, and then say if my
language is too strong. Does it startle and offend? To startle, to awaken, to put you on
your guard, to arouse you to your duty over your own children, is my purpose. Your child
is in danger of having its pure mind cursed for life.

From infancy to maturity the pathway of the child is beset with peculiar tempta-
tions to do evil. Youth has to contend against great odds. Inherited tendencies to
wrong-doing render the young oftentimes open to ever-present seductions. Inherited
appetites and passions are secretly fed by artificial means, until they exert a well-nigh ir-
resistible mastery over their victim. The weeds of sin, thus planted in weak human na-
ture, are forced to a rapid growth, choking virtue and truth, and stunting all the higher
and holier instincts. Thus, many a child of dissolute parents is born with natural desires
for strong drink, and early becomes intemperate. In his thoughtful moments he loathes
drink, and yet there comes upon him a force he is powerless to resist. So, too, the in-
continence of parents brings into the world children inheriting morbidly susceptible
natures—natures set like the hair trigger to a rifle—ready to fall into shame at the slight-
est temptation.

We speak of youth as the plastic state—the period of all others when the human
soul is most easily molded and character formed. Youth is the seed-time. Maturity gath-
ers in the crop. Youth is the fountain from which the waters of life flow. If parents do not
train and instruct their children, the devil will. Whether parents deem it important to
watch the child or no, there is one who deems it so important that he keeps a constant
watch. The devil stations a sentry to observe and take advantage of every point open to an evil
influence. He attacks the sensitive parts of our nature. He would destroy the finest and
most magnificent portion of our being. The thoughts, imagination, and affections he is
most anxious to corrupt, pervert, and destroy.

28 P A R T O N E / Creating the Context for Social Policy Analysis

I unhesitatingly declare, there is at present no more active agent employed by
Satan in civilized communities to ruin the human family and subject the nations to him-
self than evil reading.

If gambling saloons, concert dives, lottery and policy shops, poolrooms, low the-
aters, and rumholes are allowed to be kept open; if obscene books and pictures, foul pa-
pers, and criminal stories for the young are allowed to go broadcast, then must state
prisons, penitentiaries, workhouses, jails, reformatories, etc., be erected and supported.
Expensive courts and high-salaried officials must be employed at the taxpayer’s expense,
to care for those youths who are ruined, or to protect society against them.

Parents do not permit their children to make a playhouse of a sewer, nor to breathe
its poisoned gasses. It is not popular to set diseased meat before the public in any of our
numerous hotels or restaurants. Infected clothing may not be offered for sale, much less
hawked about the streets. Yet worse evils than these are tolerated and encouraged, even
while they are scattering moral death and physical suffering among those whom it is the
especial duty of every civilized government to shield and protect—the young.

N O T E S

1. P. Pinstrup-Anderson, World Food Trends and Future Food Security, Food Policy Statement Num-
ber 18 (Washington, DC: International Food Policy Research Institute, 1994).

2. These broad analytic categories were put together by David Hardcastle, a professor at the
School of Social Work, University of Maryland-Baltimore, from the work of a variety of sociologists
and other students of social problems. We have expanded them and added the details in the material
that follows, creating substantial alterations to 1 and 4.

3. P. A. Nakonezny, R. D. Schull, and J. E. Rogers, “The Effect of No-Fault Divorce Law on the
Divorce Rate Across the 50 States and Its Relation to Income, Education and Religiosity,” Journal of
Marriage and the Family, 57 (1995): 477–488.

4. P. R. Amato and D. D. DeBoer, “The Transmission of Marital Instability Across Generations:
Relationship Skills or Commitment to Marriage?” Journal of Marriage and Family, 63(4) (2001):
1038–1052.

5. A. M. Parkman, Good Intentions Gone Awry: No-Fault Divorce and the American Family (Lanham,
MD: Rowman & Littlefield, 2000): 99–150.

6. From Walter E. Williams, The SmithKline Forum for a Healthier America, 1(6) (September 1979):
1–6. Dollar amounts have been adjusted to reflect inflation. Reprinted by permission of the author and
VanSant Dugdale Advertising, Baltimore, MD.

7. Ibid.
8. Ibid.
9. Of course, we must understand that Williams was writing for ordinary readers here and in the

space allowed could not develop the complete analysis he would have done in an academic journal.
10. The reader may notice that these examples all concern individuals and, thus, may be concerned

that this contradicts earlier statements that social problems concern groups and not individuals. That
problem can be resolved by remembering that all the individuals here are assumed to be members of
a larger group in which all suffer from the same problem.

11. Notice that this criterion for judging a policy or program is not entirely practical from the view-
point of the government or society because the standard concerns what the policy or program does for
those in need. Unfortunately, in any view, the interests of the state do not always coincide with the inter-
ests of those in need, with those who suffer from a social problem. For instance, it may be easiest, and
certainly the least costly, for society at large and a government to ignore the sick, the disabled, and the

C H A P T E R 1 / Analyzing the Social Problem Background 29

poverty stricken. The focus on the interests of those in need is a bias here and is consistent with the
value positions of the social work profession. The profession takes as one of its goals the elimination
of “barriers to human realization.” Social problems of concern to the profession are those believed to
be major barriers to many people. See “The Working Definition of Social Work Practice,” Social
Work, 3(2) (April 1958): 5–9.

12. Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), 4th ed. (Washington, DC:
American Psychiatric Association, 2000).

13. Richard A. Musgrave, The Theory of Public Finance (New York: McGraw-Hill, 1961), pp. 111–112.
14. From Anthony Comstock, “Dangers in Half-Dime Novels and Story Papers,” in Robert H.

Bremner (ed.), Traps for the Young (Cambridge, MA: Belknap Press of Harvard University Press, 1967),
pp. 21–28, 238–242, first published in 1883.

30 P A R T O N E / Creating the Context for Social Policy Analysis

C H A P T E R

2 The Judiciary as a Shaperof Social Policy, Program,
and Practice

Introduction

To understand the main business in this chapter, how the U.S. judiciary and its courts of
law establish social policy and shape program operations, the reader has to be clear on
some fundamentals about how the U.S. government works. The question is: Since the
task of the courts is not to administer social policies and programs, how can the courts
affect them within other branches of government? In this introduction, we will answer
that question. We’ll begin with a description of the relationship of the Judiciary (the
courts) to other branches of government.

Recall that there are three branches of government established by the U.S. Consti-
tution: the legislative, the executive, and the judicial. At the heart of our Constitution is
the idea that each of these has very different responsibilities and is to be independent of
the others as each goes about its business. The Constitution establishes “checks and bal-
ances” between them so that no one branch of government has complete power over the
affairs of the nation. So (oversimplifying here), it is the business of the legislative branch,
the Congress and Senate, to legislate—that is, to propose and enact laws. It is the busi-
ness of the executive branch to see that these laws are put into effect through various gov-
ernmental departments (the president is “in charge” of all government departments and
offices). Health and Human Services (HHS) is the relevant example for us here. And it is
the business of the judiciary (the courts) to “adjudicate”—that is, to make judgments
about who is right or wrong according to the law as in (a) disagreements between citizens
(civil law), (b) deciding the guilt or innocence of citizens who disobey laws (criminal law),
and (c) disagreements between citizens and government agencies (often administrative
law). Court orders reinstating an (“unfairly”) terminated government disability benefit or
revoking the commitment of a person to a mental institution are examples of checks and
balances in action. The judicial branch of government (the court) is checking (or balanc-
ing) the action of the executive branch. Other examples are when a president vetoes leg-
islation that the Congress has passed, when a federal or Supreme Court voids an act of
Congress (or regulations imposed by the president) as unconstitutional, and when Con-
gress passes certain kinds of laws that clarify its legislative intentions and, thus, makes
inoperative a Supreme Court decision. These are all examples of the constitutional idea

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that a democracy has to have a way to constrain government abuse of power. That idea is
worth celebrating since, despite all the “warts” on our form of government, it’s kept us
free from the worst of tyranny for over 200 years.

Before a social policy or program can come before the Judiciary, someone must
think a law has been broken. So, let us now look briefly at how laws establishing and
funding public social policies and programs come into being.

How Are Public Programs Established and
Funded? The Political and Legislative Processes

Public social programs can be established at any governmental level (city, county, state,
or federal). Since technical legislative details will vary state by state, city by city, and so on,
what follows are not those but the (far more interesting and useful) political processes.
Ordinarily, legislation begins with a group of citizens who are concerned about a diffi-
culty they have in common—it is not always so, but we might call it a social problem. Of
course, self-interests can be corporate and financial; no reader should be surprised to
learn of the corporate self-interest of pharmaceutical companies in lobbying Congress
and the administration to deny U.S. citizens opportunities to purchase imported
prescription drugs at discounted prices, or the large energy corporations in seeking con-
gressional approval for oil exploration and production in government-owned wilder-
ness areas that are off-limits for such ventures. Interest groups can also be convened on
moral grounds for or against civil rights of minorities, discrimination on the basis of gen-
der or sexual orientation, and so on.

Legislative Tasks
The first task for an interest group is to define its issue clearly and achieve unanimity on
what the problem is and what it wants by way of legislation, not always an easy task, by
the way. It is crucial because the general public and individual legislators need to know
exactly what the interest group wants if they are to give legislative and public support.

The second task is to frame a position paper that organizes the arguments (pro and
con) and summarizes what is known (or unknown) about the issue or problem, perhaps
seeking experts for advice. Although data and argument may not persuade every oppo-
nent, they often can be used to get the support of those who are on the fence, neutral, or
unmoved. The social problem analysis, familiar to readers from the first chapter of this
book, is the kind of background necessary for preparing these preadvocacy position
papers. It must be done carefully, with one eye on the truth and the other for the center
around which political consensus can congeal. Bringing together coalitions of supporters
requires compromise.

The third task in the legislative process is to create solutions for the social problem
of concern, that is, a public policy, program design, or provision (benefit) that will plau-
sibly correct the problem. That is not a simple task to do well; actual legislative propos-
als vary from excellent to simplistic and all the way to unbelievably simpleminded.
Theories that suggest interventions or resources or planning have to be converted to

32 P A R T O N E / Creating the Context for Social Policy Analysis

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practical, financially feasible, concrete program processes and outcomes in order for
legislatures to have a basis on which they can rationally decide whether the whole proj-
ect has merit. Notice that legislators have to have answers to questions from their voter-
constituents about the reasonableness of legislation they are being asked to sponsor,
promote, or vote for. It is the responsibility of interest groups to provide their legisla-
tive supporters with such answers.

The fourth task is to organize public support for their issue. In order to motivate
legislators to identify themselves with an issue and recruit other legislators as well, large-
scale public support is essential. Everything else pales into insignificance without it.

The fifth task in the legislative process is to convince a legislator to “sign on” to the
bill in the sense of turning the social problem analysis, prospective social program de-
sign features, and position papers into a legislative proposal and officially introducing
(sponsoring) it as a legislative bill. Although legislative staff personnel can be very help-
ful in crafting the proposed bill, only a legislator can introduce a bill. After the bill is in-
troduced, it will then be referred to a committee of the legislature for study and
recommendation. Committee assignment is critical. Supporters do well to have those
with influence (usually other legislators) convince leadership making committee assign-
ments to send it to an appropriate committee for study and recommendation. If leader-
ship is not supportive of the bill, it likely will be assigned to a committee known to be a
graveyard for bills. Part of the study for a bill moving successfully through this task area
is a legislative hearing on the bill.

The sixth task in the legislative process is to organize appearances at the aforemen-
tioned committee hearings with regard to the bill. The purpose of the committee hear-
ings is for committee members to ask questions, receive answers, and debate the merits
of the bill. Naturally, one function of the hearings is for the committee to gauge the
amount of public support for or against the bill. It is to the interest of the supporters of a
bill to turn out their fellow supporters either en masse or carefully selected depending on
political strategy. Most effective lobbying groups take great care in choosing who ex-
presses to legislators their point of view for or against the proposed legislation. At some
point, the committee will vote on whether the bill will go forward to the whole legisla-
ture for a final vote. Or it can vote to table the bill for action at a later date. That can be
next week, next month, or never.

The seventh task in the legislative process is to lobby legislators, other than the one
who introduced the bill, for their support when it is finally voted on by the whole (fed-
eral, state, or city) legislative body. Supporters need to turn out in strength. Lobbying is
most effective when it is coordinated, timed, and clear in what it wants legislators to vote
for. Once again, the agenda is to show legislators why it is in their political interest to
vote in a particular way on legislation.

Assuming that the bill passed into law, the last task in the legislative process is lob-
bying for money (appropriations) to run the program that is contained in the legislation.
It is discouraging in the extreme to work so hard for passage of legislation only to see it
gathering dust when no funds are appropriated to get it up and running. So, it is neces-
sary to repeat lobbying efforts in the hearings of whatever legislative committee (finance
or perhaps appropriations committee) controls appropriations. No doubt, “it’s a long
and a dusty road.”

C H A P T E R 2 / The Judiciary as a Shaper of Social Policy, Program, and Practice 33

Social workers and other human service practitioners are encouraged by their
professional associations to become involved in the legislative process. The National
Association of Social Workers (NASW), for example, prepares policy briefs on major
social policy and program issues. These policy briefs are available online at the NASW
Web site (www.naswdc.org) to encourage advocacy efforts by social work professionals
and students, multiple partner organizations, and media representatives. In addition to
task 1 and 2 activities, social work advocates lobby legislators attend legislative sessions
and provide expert testimony at committee hearings. NASW also hires professional
lobbyists at the national level, and many state chapters do likewise.

The Regulatory Process Following Enactment
Once legislation is passed (at whatever level of government) and appropriations made,
the bill is sent to the executive branch for the chief executive officer (president, gover-
nor, mayor, and so on) to sign and implement a program—put into action the provisions
of legislation. It is of utmost importance that the practical public policy analyst under-
stand that the actual form and substance of social programs and policies as they effect ordinary
citizens are substantially created, not by legislators, but by civil servants at departmental and
subdepartmental levels. Legislation usually speaks of social policies and programs in only
the most general, yes, even vague, language. Thus, the period following the legislation
is, very often, the most important time for detailed social program and social policy de-
sign. It may come as some surprise to learn that legislators don’t design most programs.
The reason has partly to do with the amount of time and expertise legislators have, but
in an important way, it concerns the politics of legislation. The political reality is that
the more detailed a legislative bill, the more likely that someone will find something ob-
jectionable in it. Federal legislation of the 1990s providing for states to take on new re-
sponsibilities for moving welfare recipients to incomes from work and wages is a good
example. So, legislators will pass the issues of details on to civil servants to work out. It
is slightly irrational, but there is in it a political wisdom that is charming.

Many public regulations framed by civil servants from legislation are preceded by
what are called “Opportunities for Public Comments.” They might be administrative de-
partment public hearings or simple notices in newspapers and community bulletins so-
liciting written citizen or other public opinion on the regulations. The executive branch
of government is not often required to incorporate public comments into changes in reg-
ulations, but when administrative officers are aware of widespread public opinion on a
regulation they might be persuaded to do so. That can mean an opportunity to influence
social program design for those prepared to take advantage of it.

Role of the Judiciary
The judicial branch of government can wield great power because it can tell social pro-
grams the clients that must be served, can totally eliminate programs under certain con-
ditions, and can entitle or disentitle citizens from benefits, among other things. The
judicial branch restricts or expands the power of government administrators and officials

34 P A R T O N E / Creating the Context for Social Policy Analysis

so that they are consistent with past court decisions, with governmental principles, and
(sometimes) with the fundamental constitutional rights of citizens. Virtually all fields of
practice are affected by social and organizational policy made by judicial decisions. This
includes social workers doing clinical practice, serving individuals afflicted by various
kinds of emotional conditions. Certain policy created by judicial decisions prevents social
work and human service administrators from doing certain things: for example, the rul-
ing in Goldberg v. Kelley prevents practitioners from terminating public cash benefits
without explanation to the beneficiary—an application of the citizen’s right under the
U.S. Constitution to due process, of which more will be said later.1 On the other hand, a
series of state court decisions has created policy that holds practitioners responsible for
taking due care to notify people directly who have been specifically and personally
threatened with violence or physical harm by the clients/consumers of the social worker
or human services worker (Tarasoff v. The Regents of the University of California, 1976).2

Some court decisions make public policy in the sense of holding social workers
and human service workers responsible for their professional actions, the explicit policy
being that they are accountable to their own professional standards for competent prac-
tice. Consequently, they can be sued for their actions (or lack thereof) to the fullest ex-
tent allowed by law. Besharov lists a whole catalog of legal horrors that can beset the
unwary practitioner:3

� Treatment without consent: a social worker and her employer were sued by a service
recipient who claimed that her [the recipient’s] consent to treatment was given
only because she was threatened with loss of her job if she did not complete res-
idential treatment for substance abuse.

� Inappropriate treatment: “. . . half the claims for erroneous diagnosis made under the
NASW insurance malpractice program were based on a charge that the client’s
problem was actually medical. . . .”

� Inappropriate release of a client from hospitalization, confinement, or supervision.
� False imprisonment: a client is wrongly detained or committed on the basis of false

or inadequate information given to a physician who recommended commitment.
� Failure to be available when needed.

Social workers must be aware of these and other decisions not just to keep their prac-
tice within the law but also to take advantage of social policies that are in the best in-
terest of their clients/consumers. In addition to exercising due care with regard to
confidentiality, they must be prepared to take strong positions in clinical staff discus-
sions about whether to recommend commitment of a client/consumer. Not only must
they be wary of participating in agency decisions that may violate a client’s civil rights,
but also they must be wary of participating in those organizational decisions that vio-
late social policy in their state. For example, public agencies cannot act arbitrarily and
capriciously and must follow their own rules, as long as those rules are legal.4 It is particularly
problematic when public agencies deliberately change administrative rules and regula-
tions, thereby changing laws that Congress has enacted to affirm specific social poli-
cies. That was certainly the case when hundreds of thousands of Social Security
Disability Insurance (SSDI) beneficiaries were terminated “arbitrarily and capri-
ciously” (illegally, the courts finally ruled) in the mid-1980s.5

C H A P T E R 2 / The Judiciary as a Shaper of Social Policy, Program, and Practice 35

Social workers and human service practitioners need to be aware of the judiciary
as an instrument of social policy as they assist in the preparation of court cases that have
the potential to serve and better the interest of their clients/consumers. Practitioners
can be called to testify in all manner of court proceedings—termination of parental
rights, commitment and guardianship hearings, malpractice suits, disputes over public
agency benefits, and so forth. It is always possible that their testimony may be crucial
in court decisions that break new ground in social policy. In all these ways, social work-
ers must understand that as they interact with the courts they are molding their pro-
fession’s destiny.6

Ordinarily, public policy is initially framed via the political process. But the judi-
ciary can modify or completely negate legislation, so the courts hold trump cards. This
fact is simple evidence of the operation of constitutional checks and balances between
the legislative, judicial, and executive branches of government. It is a mistake to be mis-
led by the prevalent view that somehow state and federal statutes (enacted legislation)
are self-revealing. Certainly, court rulings produce effects beyond those that legislators
had in mind. As Ehrmann says:

The authority of a court to declare laws and official acts unconstitutional is a practice
that . . . gives to judges so obvious a share in policymaking that . . . there is little room
left for the pretense that judges only apply the law.7

The judiciary both creates anew and reshapes old social policy. One example is
the Roe v. Wade decision, which in effect made abortion a public policy by making it
legal for the public sector to provide for the cost of abortions. Another example is the
final Cruzan v. Danforth decision, which as public policy denied to parents the right to
remove life support from their comatose daughter who over an eight-year period had
been in a persistent vegetative state. Clearly, those were not public policies made by an
elected legislature, and yet they nonetheless were social policy, which has literally
meant life and death to other persons. Or consider all judicial decisions on the nature
and distribution of education rights and resources: Brown v. Board of Education (1954)8
and the hundreds of education desegregation court orders that followed. Of more di-
rect relevance for human service and social work practitioners are decisions that (1) ap-
pointed Court masters to oversee the development of treatment programs for the
institutionalized developmentally disabled in Alabama (Wyatt v. Stickney),9 (2) stopped
the massive terminations of Social Security benefits (cash and medical care) for the dis-
abled during the Reagan administration of the 1980s,10 and (3) established welfare
benefits as a new form of property to which certain property rights are attached (under
specific conditions—Goldberg v. Kelley).11 As stated by Notes:

The courts in their relationship with public policy are also involved in an evaluative
process . . . (which is) interpretive and not . . . political. It is impervious to electoral
judgment, unrestricted by the constraints of partisan ideologies and relatively immune
to the requirement of (political) compromise. The public policy values the court is free
to evaluate are related to but independent from the political values which motivated the
existence or absence of a statute. Parliament passes laws, courts decide what the laws
mean and in so doing courts react to what they feel are the public policy values that
underlie the statute.12

36 P A R T O N E / Creating the Context for Social Policy Analysis

Those who take the view that such decisions deform the original, pristine intent of the
framers of the U.S. Constitution are likely to call such acts “judicial activism.” To them
the power to make public policy belongs solely with the legislative branch, using the
Constitution as a stringent framework. This chapter will assume that, whatever its mer-
its or demerits or whatever its historical status relative to the founding fathers’ inten-
tions, judicial activism is a reality that shapes social policy in this country and any
analysis that fails to attend to it is incomplete at best.

Here are a few things to think about in understanding the judiciary as a shaper of
social policy. First, in the United States, at least, courts must perform their interpreta-
tive magic on a concrete case, a dispute in which at least two parties have an interest at
stake and go to court to establish which interest shall prevail under the law. In short, the
courts cannot act on abstract issues. In many European countries, the situation is quite
the opposite: Judicial decisions can be made in the abstract, absent any legislation, pend-
ing or otherwise, or absent any concrete controversy between interested parties. Sec-
ond, courts can shape and frame social policy in regard to administrative rulings as well
as legislation—administrative rules are interpretations made by public officials about how
and when legislation is to be applied in concrete cases.

Finally, practitioners must understand the attitude taken by the courts toward so-
cial science, an attitude social workers may find surprising; in fact the courts only re-
luctantly accept such findings.13 Webster says that the courts are on unfamiliar ground
in dealing with testimony of this kind, and that its plausibility is “. . . never taken for
granted as is medicine or law itself. . . .”14 Some might not agree, but Webster is prob-
ably correct that there are very few unequivocal social science findings and that be-
cause those few quickly find their way into common knowledge, they lose any potential
status as scientific conclusions. Not only that, but the typical social science finding is
usually stated as a probability, so that individual variability is always an alternative ex-
planation. That is a big problem because always and everywhere the court is concerned
with unique, individual cases, not averages; the opposing legal counsel can always
argue away the data of social science on the basis that her or his client is simply the
plausible exception to the average case.

In court, human service personnel often make ambiguous responses, giving “it de-
pends” answers because they are trained to think conditionally. However, courts want
“the truth,” definite answers, a categorical yes or no.15

The power of the judiciary to shape social policy is embedded in its present
power to review legislation and the decisions of public officials. That power was estab-
lished in the 1800s by Chief Justice John Marshall in his opinion justifying the major-
ity ruling of the U.S. Supreme Court in Marbury v. Madison,16 the cornerstone of U.S.
administrative law. Marshall’s fundamental guiding principle was that the direct and
current will of the people regarding laws and government must always be served. In
part, he feared that legislative alliances did not always represent the will of the people.
On the other hand, judicial review was one possible way to remedy the problem when
legislatures went so far that they intervened in private affairs in ways that were contrary
to the constitutionally established rights of citizens.17 Hence, the Marshall court also
ruled that in principle, the court could intervene in private affairs, and so it became pos-
sible for the U.S. Supreme Court to concern itself with abortion—with what goes on
even inside a citizen’s body.

C H A P T E R 2 / The Judiciary as a Shaper of Social Policy, Program, and Practice 37

A Simple Framework for Examining Judicial Decisions
B. C. Canon’s four basic questions will be of use to social workers and administrators in
understanding how judicial decisions bear on public social policy and social programs:

1. Whether and in what way new judicial decisions negate earlier legislative acts
2. The degree to which earlier judicial precedents are altered
3. Determining what specific policy consequences follow from a judicial decision
4. How new judicial decisions affect future administrative discretion

Negation of the Legislative Process. Canon suggests that if we want to think about
how a new judicial decision affects public social policy, the first thing we ought to con-
sider is whether and the extent to which it is a change away from whatever was directly legis-
lated by a sitting or elected assembly (e.g., the Congress, state legislatures, city councils).18

One good example is the U.S. Supreme Court decision in O’Connor v. Donaldson,19
a case that marked the first time a Supreme Court decision recognized the legitimacy of
the courts’ involvement in activities that earlier legislation clearly had defined to be the
exclusive domain of psychiatrists (O’Connor v. Donaldson, 1975). What is relevant here is
that up to the moment of the Supreme Court’s decision, state statutes had clearly as-
signed to clinicians—psychiatrists in particular—the professional discretion to continue
to confine citizens and determine when, where, how much, and what kind of psychiatric
treatment was needed. A 48-year-old Florida man, Kenneth Donaldson, was committed
to the Chattahoochee State Hospital at the request of his parents. Some fifteen years
later, Donaldson and his friends were still trying to obtain his freedom. They did so over
the objections of his psychiatrist, who found Donaldson dangerous to himself and others;
nor was Donaldson receiving treatment that he could not have received as an outpatient.
Donaldson was deprived of his liberty as a free citizen (a basic due process, constitutional,
Bill of Rights issue), and the concern of the Court was whether he was dangerous. Was
he competent enough to avoid “the hazards of freedom,” and could he receive the same
treatment outside the hospital—conditions that might mitigate the citizen’s right to lib-
erty. The Court decided that indeed he could, and in doing so, the O’Connor v. Donaldson
court decision has fundamentally changed public social policy so that

. . . no longer can the professional base his decisions as to the most appropriate treat-
ment modality solely on clinical grounds. He must become cognizant of such issues as
whether the patient will be viewed as dangerous by a judge or jury, whether the recom-
mended program will be considered adequate treatment or even treatment at all, and
whether he will be considered liable for denying the patient his constitutional rights if
he continues to hold him in the hospital because he considers him dangerous if a future
court hearing finds the patient not dangerous.20

Notice how this Court decision changed the usual relationships between the legislative
and executive branches of government, which implement legislation. The Court ruled
that prior legislation was unconstitutional and required the administrative branch (in this
case, public officials and professionals—probably psychiatrists employed by the state

38 P A R T O N E / Creating the Context for Social Policy Analysis

hospital system, usually a state mental health or institutional service—in the employ of
government) to follow the Court order rather than the legislation.

Judicial Precedents. Remember that in contrast to European judicial systems, the
U.S. legal system is ordinarily guided by earlier court decisions (precedents). So, in prin-
ciple, the greater the departure from prior court decisions, the more we ought to consider
a judicial decision to be important, all other things being equal. Let us take as an example
the 1969 decision of the U.S. Supreme Court (reaffirmative in 1997), which found that
state laws were unconstitutional in using a period of state residence as an entitlement rule
for welfare benefits. For two hundred years all states had very stringent residence re-
quirements (usually a year) for a person to be entitled to a state welfare benefit.

Residency requirements created all sorts of problems for poor and low-income cit-
izens, many of whom were necessarily mobile and who qualified for welfare benefits but
were not state residents. Consider what a hardship that might be if, for example, unem-
ployed auto workers left Michigan with their families to go to Nebraska to look for
work—perhaps an economically rational and otherwise virtuous idea. If they needed wel-
fare benefits until the first check from the new job arrived, they would be out of luck—
not because they didn’t need it, but because they hadn’t lived in Nebraska for a year. In
short, the Supreme Court ruled that such state laws are unconstitutional because they
hinder the free movement of persons, a constitutionally protected right. Furthermore,
labor must have the ability to move freely in order for the economic wheels of the coun-
try to grind efficiently. From the day of the Court’s decision, states cannot lawfully deny
access to welfare benefits simply on grounds of the applicant’s residency.21 In this deci-
sion, the Supreme Court overturned 150 years of its own precedent (and perhaps 600
years of British Poor Law).

It is an important example because it reveals that not only are abstract issues of
freedom and legal rights at stake, but current and concrete agency operations are also at
issue. Since the decision, state welfare administrators not only must take the necessary
administrative means to stop implementation but also must prepare budget estimates of
what costs the Court’s decision will impose on the state’s welfare programs. For exam-
ple, eliminating the residency requirement may add more beneficiaries to welfare rolls
where there are high worker in-migration rates. The other side of the in-migration
coin, of course, is that it reduces the welfare budget of other states. An influx of workers
may benefit a state’s economy, but a side effect is increased demand on general assistance
and indigent medical care funds.

A case in point occurred in California (a leading in-migration state) when policy
was enacted to help ease budgetary pressures. The California legislature passed a law
(never enforced because of lower court rulings) to provide lower welfare payments to
new residents than the benefit rates for individuals and families who had been residents
of the state for one year or more. In 1999, the U.S. Supreme Court set another prece-
dent on a residency-related public welfare issue by thwarting state plans to provide
lower TANF payments to new California residents. Justice John Paul Stevens wrote for
the court, “The state’s legitimate interest in saving money provides no justification for
its decision to discriminate among equally eligible citizens.”22

C H A P T E R 2 / The Judiciary as a Shaper of Social Policy, Program, and Practice 39

Type and Effect of Policy Concerned. Canon advises us to think about the type of
social policy a judicial decision concerns and its practical effects on operating procedure
and policy. These criteria will give direction to our inquiry about the practical effects of
the judicial decision. The courts can and do make social policy of two types: (1) proce-
dural policy and (2) substantive policy. Procedural policy has to do with rights ultimately
derived—indirectly or directly—from the Bill of Rights of the U.S. Constitution: for
example, all citizens have a right to a fair trial, an opportunity to confront witnesses, be
informed of charges against them, and so on.

Goldberg v. Kelley is a leading example of how the judiciary creates social policy: in
Goldberg, the U.S. Supreme Court held that once a benefit is legislated for citizens and
administratively granted to them, that interest constitutes a type of property to which
due process rights apply. Thus, in this decision, the Court created for Mrs. Goldberg
(and others who follow her) a substantive right to this welfare benefit. When welfare ben-
efits are interpreted in this light, it is clear that not all of them can be withdrawn by the
simple act of administrative discretion. In fact, this judicial decision establishes that once
welfare benefits are granted, to withdraw them after the fact, the government must pro-
vide procedural rights: that is, the client-beneficiary must get advance notice of a hearing in
which the action will be reviewed; furthermore, the client-beneficiary has a right to ap-
pear and argue his or her point of view, have benefit of counsel, the opportunity to con-
front witnesses, and so on.

The Supreme Court decided that Mrs. Goldberg had not been given such a hear-
ing and ordered the (Texas) Department of Welfare to do so. Note that in addition to
other constraints on their application, these procedural rights do not apply to all bene-
ficiaries or to all benefit programs. Goldberg is an important type of judicially created so-
cial policy if only because it obliges public organizations that administer benefits to
establish fair hearing systems with due process features.23 Those features are neither
trivial from the client’s/consumer’s point of view—because they can restore benefits that
were illegally or unjustly terminated—nor trivial from the organizations’ point of
view—because they are expensive and complicated to administer.

In summary then, analysis of a judicial decision as a social policy document should
always include clarification about whether the issue at hand is one that concerns sub-
stantive policy or due process (procedural) issues. It should also include an examination
of the practical effects on organizational operating policy and procedures (such as the
need to add to or modify fair hearing features as discussed before).

Parameters for Agency Discretion. Canon advises a fourth consideration in analyz-
ing judicial decisions that influence public social policy: the degree to which a judicial deci-
sion establishes policy itself rather than leaving its details to the discretion of other agencies or
individuals. It is clear that with reference to the residency requirements, the Supreme
Court left no discretion to state administrators—the Court order simply forbade use of
this disentitlement rule. An example of how agencies are endowed with discretion is
found in the Federal Appeals Court decision of the 1980s that forbade the Social Secu-
rity Administration (SSA) to use its psychiatric classification as a basis for awarding or
denying mental disability benefits.24 It also ordered SSA to develop a new one based on
more contemporary thinking. That instance is a clear example of the Court’s leaving the

40 P A R T O N E / Creating the Context for Social Policy Analysis

discretion about the specific policy rule to the administrative agency and acknowledg-
ing the agency’s competence and resources to do so.

Another way the judiciary can influence agency discretion is to rule on compliance
with existing social policy laws. Such is the example in Olmstead v. L.C. and E.W.25 This
case involves two women who have mental illness and developmental disabilities and
were confined in a Georgia state hospital. Hospital staff agreed that both women were
ready for discharge to the community, and they were placed on a long waiting list of per-
sons qualified for community placements. L.C. and E.W. remained unnecessarily insti-
tutionalized for years as they waited to be placed. In 1995, a lawsuit was filed by the
Atlanta Legal Aid Society on behalf of L.C. and E.W., against Tommy Olmstead, Com-
missioner of Georgia’s Department of Human Resources. The lawsuit charged Olm-
stead with a violation of the Americans with Disabilities Act of 1990 (ADA). After
several years of litigation, the Supreme Court was requested to decide whether unnec-
essary institutionalization of individuals with disabilities is a form of discrimination pro-
hibited by the ADA. In 1999, the High Court ruled that the denial of community
placements to individuals with disabilities is precisely the kind of segregation that Con-
gress sought to eliminate in passing the ADA. As a result of the Supreme Court ruling,
states have stepped up efforts in planning for community services to ensure their com-
pliance with ADA.

Other examples abound, but one of the most extreme is Wyatt v. Stickney, a 1972
federal court order that established detailed standards of care that actually redefined
public policy regarding institutionalized mental patients in the state of Alabama.26 In
deciding what has come to be called “the right-to-treatment rule,” the Court deter-
mined that Mr. Wyatt did indeed have such a right and did not place discretion with Al-
abama’s mental health program administrators to decide of what the treatment had to
consist. The Wyatt standards have never been overturned. Not only did the Court
mandate standards of care, but also it appointed a Court administrator for the state
mental hospital in question, a magistrate or master responsible only to the Court, to
enforce those standards. Part of the lesson of the Wyatt decision is about the limits of
judicial activism, the big problem courts have in actually enforcing such detailed pol-
icy and program provisions.

When social programs are charged in lawsuits for violations of discretion that
cause harm or are otherwise not in the best interests of clients/consumers, lengthy liti-
gation may be avoided through a consent decree. A consent decree requires agreement
by the defendant (social program) to cease activities asserted to be illegal, agreement by
the plaintiff (aggrieved party), and approval by the court. Consent decrees may, however,
involve years of effort to implement changes prescribed in the agreement and require
oversight by a court-appointed compliance monitor who documents whether conditions
of the agreement are being met. An example can be found in a lawsuit that brought
sweeping changes in the way in which Oklahoma treats children in its custody. In 1978,
the “Terry D.” lawsuit was filed by Legal Aid of Western Oklahoma on behalf of juve-
niles, alleging they were denied basic care and basic rights (including physical restraint
and isolation) in state-operated detention facilities. A consent decree was agreed on and
the State of Oklahoma set about closing detention homes, developing community shel-
ters, and overhauling the state’s programs for children and youth.27 Twenty years later,

C H A P T E R 2 / The Judiciary as a Shaper of Social Policy, Program, and Practice 41

in 1998, the court’s compliance monitor gave the final report to the judge “that the major
substance of the consent decree had been incorporated into DHS [Oklahoma Depart-
ment of Human Services] policy.28

Here is another example of how a consent decree changed the way a state welfare
program operates its child welfare system. The R.C. lawsuit was filed against the Com-
missioner of the Alabama Department of Human Resources (DHR) in 1988, on behalf
of a foster child who had been diagnosed with attention deficit hyperactivity disorder.
The lawsuit alleged that the DHR had not maintained systems to ensure that emotion-
ally disturbed or behaviorally disordered foster children were adequately provided for
when placed in the foster care system. A “System of Care” was prescribed in the consent
decree, and as of September 2, 2003, approximately fifty-one of Alabama’s sixty-seven
counties had achieved conversion to the prescribed system.29

Using the Canon Framework to Analyze Judicial
Decisions That Create or Alter Social Policy
This section looks at some other examples that reveal how Canon’s framework can help
analyze particular court decisions. The issue of termination of parental rights is a good
example for this purpose. Almost all states have statutes about terminating parental
rights in cases of child abandonment. Widely varied, they are useful because they
demonstrate how different state courts develop both very different and very similar kinds
of social policies on this inherently private family matter. Here the long arm of the state
intrudes into the very heart of the family, determining in the last analysis such a basic
issue as who shall and who shall not remain a member of a family group. Traditionally,
courts have relied on common-law criteria to make this determination—whether the
parent provided materially for the child or whether the parent was abusive, for example.
These criteria proceed from what is taken to be “ordinary common sense,” that is, so-
cially inarguable standards for parental conduct. Of course, the social world is a very dif-
ferent place these days, far removed from the simplicity of a tightly knit and traditional
agrarian society on whose long-established traditions common law is built. Small nuclear
families, geographic mobility, and personal catastrophes such as marital breakup or drug
addiction were not a part of the reality of those times; hence, common law did not speak
to these contemporary realities. Therefore, the judiciary must consider criteria from
other sources in applying its broad discretion in determining whether parental behavior
is an indicator of intent to abandon or an indicator that parental responsibility should
be terminated.

In terminating parental rights based on concepts that are beyond common-law
traditions, courts must of necessity create new public social policy (negate earlier legisla-
tion). In terms of parental rights, what is at stake is not only the private rights and in-
terests of the child and the parents (and the family kin group) but also the public interest
in terms of guarding the integrity of a future citizen’s (the child’s) developmental life,
avoiding public expenditures for foster care, ensuring that the child has not only a fam-
ily identity to carry into adult life but also a family or kin group that will socialize the
child to dominant values.30

42 P A R T O N E / Creating the Context for Social Policy Analysis

For example, a Connecticut court terminated the rights of the parents of three
minor children because the parents failed to “. . . maintain a reasonable degree of inter-
est, concern or responsibility as to the welfare of (their) child.”31 The Connecticut
statute gave only the most general definition of abandonment: “. . . the parents’ failure to
maintain a reasonable degree of interest, concern or responsibility as to the welfare of
their child.” This court was forced to define it more concretely. Note the many very dif-
ferent, perhaps even opposing, interpretations that could be given this abstract defini-
tion. For example, some might define church attendance or corporal punishment as a
necessary ingredient of “assuming parental responsibility,” whereas others might not.
Ultimately, the Chignon court decided that “maintaining a reasonable degree of interest”
means that a parent had to have continuous, face-to-face contacts with the child over
time and, thus, this mother’s average three visits per year to the child, infrequent phone
calls and letters, and moving to another state (Maryland) did not meet that standard. In
applying Canon’s concepts for the analysis of judicial decisions, we first must think about
the degree to which this decision departs from a directly legislated social policy. It is clear
that the legislation (state statute) concerned with this matter leaves the crucial operating
term “maintaining a reasonable degree of interest [in the child]” entirely undefined. The
court then sets about defining the term and giving it concrete meaning, in effect acting
to create law independent of the elected legislature. On that account and following
Canon’s advice, we would take note in our analysis that In re Chignon is surely an impor-
tant court decision with direct impact on citizens in that it sets the basic policy by which
state and other social agencies deal with citizens.

In analyzing this judicial decision the second aspect to consider is whether the
legal issue at hand is one that concerns substantive policy or due process or procedural
issues (social policy type and effect). It would be a due process or procedural issue if,
for example, the case concerned the way in which the hearing to terminate parental
rights was conducted, whether the parent had competent legal counsel, received timely
notification of the hearing, had a chance to confront witnesses, and so on. As the reader
can see, none of those were points at issue; rather, the issue was a substantive one: How
should child abandonment be defined? This tells us that it isn’t the judicial or agency
procedures that will have to be reshaped but the way in which the agency defines
“abandonment.”

In analyzing this judicial decision, the third aspect Canon would have us consider
is the degree to which earlier court decisions are altered. Unfortunately, the material in
which this decision was reported does not give us that information.32 To complete our
analysis of this judicial decision, we will have to locate the decision of this Connecticut
court (with the help of our nearest and friendliest law school librarian) and review it for
what it has to say about other earlier court decisions on related matters.

The fourth consideration, according to Canon, is the degree to which a judicial de-
cision establishes policy itself rather than leaving discretion to other agencies or individ-
uals. In regard to this decision, we can answer in the affirmative. Indeed the court went to
great pains to establish policy itself and did not leave the matter of defining abandonment to other
agencies nor to the discretion of individual state officials. Note that this is more than just an ab-
stract point: In making a judgment about this analytic criterion, officials are alerted to the
fact that the law will not sustain case decisions they make based simply on their own ad

C H A P T E R 2 / The Judiciary as a Shaper of Social Policy, Program, and Practice 43

hoc criteria. An effective and efficient bureaucracy will take steps to know the law and in-
corporate it into its operating policy.

Another case (this one in Kansas) created a new social policy when the court upheld
termination of paternal rights of a father for the purpose of placing the child for adoption
on the basis of his negligence as a parent in attending to the child.33 Again, the court had
to make a decision in regard to what counted as negligence. The decision was based on a
Kansas statute, which specified that the court could grant adoptions without the consent
of the natural parents where the parent failed or refused to “. . . assume parental duties
for two consecutive years prior to the filing of the adoption petition.”34 The court de-
cided that the parental effort met this criterion and, therefore, constituted parental aban-
donment. In this case, efforts had been limited to Christmas and birthday gifts and a few
telephone calls but no financial support, written communication, or other form of emo-
tional support. The court created new social policy in the sense of deciding that absence
of financial support, coupled with lack of emotionally significant contact, constituted
parental abandonment for any practical purpose and so termination of parental rights
was in order. The court was obliged to make such a determination because legislation did
not define fulfillment of parental duty so that the Kansas Supreme Court had no alterna-
tive but to exercise its own judicial discretion. Because U.S. courts sometimes take notice
of decisions of courts in other jurisdictions as well as by earlier and higher court deci-
sions, that Kansas decision could influence courts in other states.

Finally, the West Virginia Supreme Court of Appeals created new social policy in
that state when it upheld the parental rights of a father.35 Whereas West Virginia Code
§548-4-3 provides for termination of parental rights in the instance of abandonment, it
does not contain a definition of same. The West Virginia court held that the prospective
adoptive parents had not shown that the father had abandoned the child because failure
to pay child support was not by itself sufficient to constitute child abandonment. The fa-
ther had sent gifts, cards, money, telephoned repeatedly, paid for health insurance, and
written the mother seeking visitation (subsequent to her refusal to allow visitation as a
means of prompting him to pay child support).36 In analyzing this decision following
Canon’s advice, we would conclude that the West Virginia court had indeed ventured
beyond what the elected legislature had decided in such matters.

Canon’s next concepts oblige us to consider whether what is at issue here is a sub-
stantive matter or a due process right. Clearly it is the former, because, once again, the
concern of the court is with what substantively constitutes child abandonment. Note
that the father did not contest the procedures by which a lower court had arrived at its
decision; rather, the entire focus is on what should be considered as child abandonment
and whether the father’s behavior conformed to that definition.

Using Canon’s third analytic concept, we are led to conclude that in fact the West
Virginia Supreme Court did not venture far from earlier court precedents but based its
decision on them, citing an earlier court decision that provided precisely the definition of
abandonment upon which it could base its work. This earlier case in a local (lower) court
in effect defined abandonment as failure to provide support and maintenance, visit the
child, or exercise parental rights, responsibilities, and authority.37 Notice that the West
Virginia legislature could have (but did not) incorporate the standards for termination of
parental rights from this case into legislation on the matter. Canon’s analytic concept
yields practical information because (1) once it is known, as in this case, that these crite-

44 P A R T O N E / Creating the Context for Social Policy Analysis

ria for abandonment are part of a whole set of precedents, they become even more im-
portant as public agency operating policy in the sense that policy implementers have
some certainty that the criteria will have continuity over time; and (2) the decision came
(partly) from a state supreme court, which ultimately binds the lower courts with which
agencies and officials have to deal.

Using Canon’s fourth analytic concept, we can conclude that, as in the earlier case
law cited, the West Virginia Supreme Court did not delegate to other agencies or offi-
cials the responsibility to make general policy or case decisions but took responsibility
to create its own.

Summary

This chapter has shown how the power of the judiciary to shape social policy is embed-
ded in its present power to review legislation and the decisions of public officials. Judi-
cial capacity can influence social policy of two types: (1) policy about due process and
fundamental citizen rights and (2) policy about substantive matters—who gets what,
when, in what form and under what conditions, and how benefits are financed. Some
basic considerations about the judiciary were presented. For example, the judiciary must
consider a concrete case that represents an issue between the vital interests of at least
two citizens; courts can shape and frame social policy concerning administrative rulings
as well as legislation; and the courts view with reluctance and suspicion the findings of
social science and experimental psychology.

Based on the work of B. C. Canon, a conceptual framework for the analysis of ju-
dicial decisions with social policy relevance was given. This framework is founded on
advising practitioners to be alert to four basic considerations:

1. The extent to which the judicial decision is a departure from legislation passed by
a freely elected assembly.

2. The extent to which the decision concerns a due process or procedural issue, or
a substantive policy issue.

3. The extent to which the decision represents a departure from prior judicial
precedent.

4. The extent to which the court delegated the responsibility to other agencies or
officials or took responsibility to make general policy to create its own.

N O T E S

1. J. Handler, Protecting the Social Services Client (New York: Academic Press, 1979), p. 31.
2. Tarasoff v. The Regents of the University of California, Sup. Ct. of California (July 1, 1976).
3. D. Besharov, The Vulnerable Social Worker (Silver Spring, MD: National Association of Social

Workers, 1985), pp. 2–9.
4. E. Gellhorn, Administrative Law and Process (St. Paul, MN: West, 1974).
5. D. E. Chambers, “Policy Weaknesses and Political Interventions,” Social Service Review, 42

(1987): 87–99.

C H A P T E R 2 / The Judiciary as a Shaper of Social Policy, Program, and Practice 45

6. We are indebted to David Brown, J.D., of the legal staff of the Kansas Appeals Court, who
kindly read this material and supplied this inviting comment.

7. H. W. Ehrmann, Comparative Legal Cultures (Englewood Cliffs, NJ: Prentice Hall, 1976),
p. 138.

8. Brown v. Board of Education, 347 U.S. 483 (1954).
9. M. Levine, “The Role of Special Master in Institutional Reform Litigation,” Law and Policy, 8

(1986): 275–321.
10. D. E. Chambers, “The Reagan Administration Welfare Retrenchment Policy: Terminating So-

cial Security Benefits for the Disabled,” Policy Studies Review, 2 (1985): 207–215, 234–235.
11. Handler, Protecting the Social Services Client, p. 31.
12. J. Notes, “The Least Dangerous Branch,” Revue de Droit de McGill, 34 (1989): 1025–1028.
13. C. D. Webster, “On Gaining Acceptance: Why the Courts Accept Only Reluctantly Findings

from Experimental and Social Psychology,” International Journal of Law and Psychiatry, 7 (1984):
407–414.

14. Ibid., p. 410.
15. Ibid., p. 412.
16. Marbury v. Madison, 1 Cranch 137 (1803).
17. D. W. Jackson, “A Conceptual Framework for the Comparative Analysis of Judicial Review,”

Policy Studies Review, 19 (1991): 161–171.
18. B. C. Canon, “A Framework for the Analysis of Judicial Activism,” in S. C. Halpern and C. M.

Lamb (eds.), Supreme Court Activism and Restraint (Lexington, MA: Lexington Books, 1982). We have
chosen to use only some of Canon’s analytical dimensions, omitting others when they seemed less rel-
evant to the common practice of human service and social workers.

19. O’Connor v. Donaldson, 422 U.S. 563 (1975).
20. L. E. Kopolow, “A Review of Major Implications of the O’Connor v. Donaldson Decision,” Amer-

ican Journal of Psychiatry, 133(4) (1976): 379–383.
21. Although the Social Security Act required fair hearings for all programs funded with federal

money, it did not specify their mandatory features.
22. Sanez v. Roe, 526 U.S. 489 (1999).
23. D. E. Chambers, “Residence Requirements for Welfare Benefits,” Social Work, 14(4) (1969):

29–37.
24. Mental Health Association of Minnesota v. Schweiker, 554 Fed. Supp., 157 (D.C. Minn., 1983).
25. Olmstead v. L.C. (98-536) 527 U.S. 581 (199).
26. Levine, “The Role of Special Master,” p. 285.
27. J. Trzcinski, “Journey From Dark to Light and Then? The Legacy of Oklahoma’s Terry D.

Lawsuit,” Free Inquiry in Creative Sociology, 29(1): 27–34.
28. Associated Press, “The Norman Transcript,” January 27, 1998.
29. Alabama Department of Human Resources, R. C. Consent Decree. Retrieved from the World

Wide Web, September 2, 2003, www.dhr.state.al.us/legal/RCDecree.htm.
30. What will be lacking in using this issue as an example is the history of its legislative politics in

the initial framing of state statutes on termination of parental rights. This issue is seldom an occasion
for high-profile political compromise, nor are the constituent (interest) groups either obvious or very
visible. Naturally, parents themselves have a stake here, but the activist sentiments of most parents
would not be engaged by a legislative proposal on an issue that for them is bound to be only potential,
not actual. On that account, the political issues tend to be much more ideological, dividing legislators
along lines of commitment to either the rights of parents or the rights of children.

31. In re Chignon.
32. Legal Analysis: “Infrequent Contacts with the Child, Grounds to Terminate Parental Rights in

Abandonment Cases,” 8 ABA Juvenile and Child Welfare Reporter (December 1989): 157–158.
33. Matter of Adoption of B.C.S., 777 P.2d 776 (Kan. 1989).
34. Kansas Statutes Ann. §59–2101(a)(1).
35. In the Matter of Adoption of Schoffstall, 368 S.E.2nd 720 (W. Va. 1988).
36. Ibid., p. 164.
37. Ibid., p. 158.

46 P A R T O N E / Creating the Context for Social Policy Analysis

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