Note | Constitutional Law
Unconstitutional or Just Bad Policy? Title IV-E’s AFDC “Lookback” and the Constitutional Guarantee of Equal Protection
by Rosie Frihart-Lusby*
Vol. 93, Note (December 2020)
93 S. Cal. L. Rev. Note 1069 (2020)
Keywords: Foster Care Funding, AFDC, Equal Protection Analysis
This Note will consider one possible means for judicially striking down the AFDC Lookback: that it is a classification so arbitrary it violates the Equal Protection clause implicit in the Fifth Amendment. In Section I, I describe in greater depth the structure of foster care funding and the distinct roles played by the federal and state governments in the provision of funds. Next, in Section II, I elaborate on the history of the AFDC Lookback and attempt to pinpoint a rationale for its continued inclusion in the Social Security Act. In Section III, I enumerate and briefly explain common arguments as to why the AFDC Lookback is bad policy. Section IV includes a brief overview of Equal Protection doctrine—both the traditional approach utilizing tiered scrutiny and Justice Thurgood Marshall’s alternative slidingscale approach. Then in Section V, I consider the level of scrutiny a court might apply to the Lookback. Finally, in Section VI, I analyze the AFDC Lookback under both the traditional approach and Justice Marshall’s slidingscale approach, concluding in both cases that the AFDC Lookback is likely a Fifth Amendment Equal Protection violation.
*. Executive Senior Editor, Southern California Law Review, Volume 93; J.D. 2020, University of Southern California Gould School of Law; B.A., History and Film Studies 2011, University of Tulsa. Thank you, first and foremost, to Professor Clare Pastore, whose guidance and feedback throughout this process was as useful as it was thoughtfully given. Thank you to the experts and practitioners who graciously shared their time and knowledge as this Note evolved, including Professor Dara Barker, Adam Cherensky, Judge Amy Pellman, Rachel Stein, Tyler Sutherland, Professor Karen Ullman, and Professor Kimberly West-Faulcon. Thank you to the editors of the Southern California Law Review for their excellent work. Finally, thank you to my family and friends who not only offered support during this process but also served as volunteer editors.