Contesting the Bureaucracy
| DOI | 10.1177/0964663911417748 |
| Published date | 01 December 2011 |
| Date | 01 December 2011 |
| Author | Vicki Lens |
| Subject Matter | Articles |
Article
Contesting the
Bureaucracy: Examining
Administrative Appeals
Vicki Lens
Columbia University School of Social Work, USA
Abstract
This article explores citizens’ useof administrative hearings toappeal adverse government
decisions about their welfare benefits. It draws on interviews with 79 welfare participants
and observationsof hearings and interviews with administrative law judgesin a state in the
United Statesto understand what hearings, and the act of appealing, mean to citizens.I find
that beyondindividual redress, participantsview appealing as an opportunityto expose and
repair social injuries and to renegotiate social relationships, social identities and their
status as citizens. Their ability to rehabilitate strained social identities and establish their
deservingness as citizens is contingent and variable, with hearings sometimes
reproducing appellants’ powerlessness and other times allowing for a more positive
enactment of citizenshi p and social status. Over time, participants exp erience an
increase in legal consciousness, using the knowledge of the law and bureaucratic
practices they glean from hearings to better navigate the welfare bureaucracy. While this
transformation of legal consciousness emphasizes individual gains rather than collective
or systemic change, it cultivates a culture of complaining, rather than acquiescing, within
the welfare bureaucracy.
Keywords
administrative hearings, administrative justice, public assistance, qualitative research,
welfare
A significant and understudied form of civil justice is administrative hearings, used by
government welfare programs in the United States to resolve disputes over benefits.
Corresponding author:
Vicki Lens, Columbia University, 1255 Amsterdam Avenue, New York, NY 10027, USA
Email: vl2012@columbia.edu
Social & Legal Studies
20(4) 421–439
ªThe Author(s) 2011
Reprints and permission:
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DOI: 10.1177/0964663911417748
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Many of these government programs serve low income citizens, with administrative
hearings serving as a type of poor people’s court, adjudicating individualdisputes over the
provision of subsistence benefits.
1
As government-run hearings about government pro-
grams, they can also potentially illustrate and expose social inequities and policy flaws.
Scholars have disagreed over the usefulness of hearings and their place within gov-
ernment welfare bureaucracies that provide aid to the poor. Some assert that hearings are
a critical forum for asserting individual rights and correcting bureaucratic mistakes
(Houseman, 1990; Perales, 1990). Others contend that hearings do little to address issues
of social equity or correct systematic errors, and further, are ill suited for citizens
unskilled in the law and adversarial procedures (Simon, 1990–91; White, 1990). While
the latter perspective in particular underscores the disjunction between ‘the law on the
books and the law in action’ (Silbey, 2005: 324), it does not sufficiently account for the
ways in which poor citizens themselves use hearings, and the particular meanings they
attach to them. It ignores the complexity of the act of appealing, which may be motivated
by multiple purposes beyond a desire for individual redress. It also does not take into
account how citizens may define and shape their participation to suit their own needs,
and how their engagement with the fair hearing system may shape and affect their legal
consciousness over time. This view also neglects an understudied actor in the fair hearing
system, the administrative law judge, and specifically how the varying ways in which
these official actors ‘talk’ about the law and legal rules may affect citizens’ experiences.
This study draws on interviews with 79 welfare participants and observations of hear-
ings and interviews with administrative law judges to explore the ways in which poor
citizens use and experience hearings. The study was conducted in a state located in the
northeastern United States and involves denials of Temporary Assistance for Needy
Families, a joint state and federal program that provides cash assistance and other ben-
efits to poor families, and denials of medical assistance benefits from a variety of state
and federal programs. The use of interviews and observations of appeals allows me to
more deeply understand what hearings, and the act of appealing, mean to citizens.
I find that beyond ind ividual redress, p articipants view a ppealing as an oppor tunity to
expose and repair social injuries and to renegotiate social relationships, social identities
and their status as citizens. Their ability to rehabilitatestrained social identities and estab-
lish their deservingness as citizens is contingent and variable, with hearings sometimes
reproducing appellants’ powerlessness and othertimes allowing for a more positiveenact-
ment of citizenship and social status. Over time, participants experience an increase in
legal consciousness, using the knowledge of the law and bureaucratic practices they glean
from hearings to better navigate the welfare bureaucracy. While this transformation of
legal consciousness emphasizesindividual gains rather thancollective or systemic change,
it also cultivates a culture of challenging, rather than acquiescing to, the welfare bureau-
cracy. I also find that government officials sometimes join in this resistance, working in
concert with citizens to challenge ratherthan reproduce structures of powerand inequality.
Theoretical Framework
For the poor, and especially those who rely on government programs for basic subsis-
tence, law is often omnipresent. As Munger (2004) observes, the poor are more likely
422 Social & Legal Studies 20(4)
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