Before Swygert, Chief Circuit Judge, Perry and Marovitz,
The opinion of the court was delivered by: Swygert, Chief Judge.
This is a class action challenging the validity of Art. IV,
section 4-1.1 of the Illinois Public Aid Code, Ill.Rev.Stat. ch.
23, § 4-1.1 (1967),*fn1 and Illinois Public Aid Regulation 150
issued pursuant thereto.*fn2 Section 4-1.1 provides that needy
children who are deprived of parental support and are between
eighteen and twenty-one years of age and in regular attendance in
high school, vocational school, or technical training school are
eligible to receive Aid to Families with Dependent Children
(A.F.D.C.) benefits. Plaintiffs allege that section 4-1.1 is
inconsistent with section 406(a)(2) of the Social Security Act,
42 U.S.C. § 606(a)(2) and void under the Supremacy Clause.*fn3
They also assert that section 4-1.1 violates equal protection of
the laws by failing to provide benefits to otherwise eligible
children between the ages of eighteen and twenty-one who are
attending college. We hold that section 4-1.1 is consistent with
section 406(a)(2) of the Social Security Act and that it
comports with the requirements of the fourteenth amendment.
Accordingly, the relief requested by the plaintiffs must be
This action was instituted on November 8, 1968 by plaintiff
Loverta Alexander, individually and on behalf of her son, Jerome
Alexander. Plaintiff's action was brought, pursuant to Rule
23(a), (b)(2) and (b)(3), Fed.R.Civ.P., on behalf of all
persons similarly situated. The members of the plaintiff class
include all children between the ages of eighteen and twenty-one
and their parents or legal guardians who are denied A.F.D.C.
benefits solely because said
children are college or university students instead of high
school, trade school, or vocational school students. The
defendants, Harold O. Swank, David L. Daniel, and Mae Withers,
are officials responsible for the administration of A.F.D.C.
benefits in Illinois. On March 11, 1969 Georgia Townsend
intervened as plaintiff both individually and on behalf of her
minor daughter, Omega Minor, and as a member of the class
described in the original complaint filed by Loverta Alexander.
Plaintiffs' complaint states a cause of action under 42 U.S.C. § 1983
and is properly maintained as a class action in accordance
with Rule 23, Fed.R.Civ.P. This court was correctly convened as
a three-judge court pursuant to 28 U.S.C. § 2281, 2284 and
jurisdiction to hear plaintiffs' action is proper under
28 U.S.C. § 1343(3), 2201.
Both plaintiffs and defendants have moved for summary judgment
on the basis of material before us. All questions presented in
this appeal involve issues of law and can be appropriately
determined on the basis of the affidavits and pleadings. As a
preliminary matter, defendants argue that the affidavits of
plaintiffs demonstrate that Jerome Alexander and Omega Minor are
not students in regular attendance in college and that they,
therefore, lack standing to maintain this action on behalf of the
plaintiff class. We disagree.
To possess standing to challenge the validity of a state
statute the party seeking relief must allege "`such a personal
stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of
difficult constitutional questions.' Baker v. Carr, 369 U.S. 186,
204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)." Flast v. Cohen,
392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Under this
standard a needy child between the ages of eighteen and
twenty-one who merely wishes to attend college might possess a
personal stake sufficient to establish the requisite adverseness
necessary for standing to challenge section 4-1.1. It should be
undisputed, however, that standing exists if a person is actually
denied benefits for any period solely because he regularly
attends college rather than high school or vocational school.
Thus, plaintiffs need not show that they are presently entitled
to A.F.D.C. payments. We think the pleadings and the affidavits
sufficiently demonstrate that Jerome Alexander and Omega Minor
regularly attended college in the past and were deprived of
A.F.D.C. benefits as a result.
Section 4-1.1. provides that a high school or vocational school
student must be in "regular attendance" in order to receive
A.F.D.C. benefits. Regular attendance is defined as "attendance
full time during the regular terms of such schools, or attendance
part time * * * as may be authorized by rule of the Illinois
Department for the purpose of permitting the child to engage in
employment. * * *" The key to the interpretation of regular
attendance is the meaning of "attendance full time." That term is
not defined by the statute or by regulation of the Illinois
Department of Public Aid.
Jerome Alexander graduated from high school on August 15, 1968,
four days after he reached his eighteenth birthday. On September
11, 1968 he enrolled in fourteen hours of classes for the fall
semester at Wilson Junior College in Chicago. Without express
regulations to the contrary, we think this constitutes full time
attendance. On October 4, 1968 defendant Mae Withers,
superintendent of the Woodlawn District Office of the Cook County
Department of Public Aid, acting pursuant to section 4-1.1 and
Illinois Department of Public Aid Regulation 150 withdrew
A.F.D.C. benefits to Jerome Alexander and his mother, Loverta
Alexander. Defendants admit that the sole ground for withdrawing
benefits to plaintiffs was the fact that Jerome was over eighteen
and not attending high school or vocational school. Thus
defendants' action on October 4, 1968 injured plaintiffs and
provided them with standing to challenge the validity of section
Omega Minor graduated from high school in August 1966. In
September 1966 she enrolled at Southeast Junior College in
courses providing thirteen hours credit. We believe that this is
sufficient to constitute attendance full time within the meaning
of section 4-1.1. On December 19, 1966 Omega Minor celebrated her
eighteenth birthday. In January 1967, before the end of the fall
term, A.F.D.C. benefits previously paid to Georgia Townsend for
support of Omega were withdrawn. Again the sole reason for the
cessation of benefits was plaintiff's failure to qualify for
benefits under section 4-1.1. After aid was withdrawn Omega Minor
continued to attend Southeast Junior College. We think the
cessation of aid in January is sufficient to give plaintiff
Townsend standing to challenge section 4-1.1.
Defendants cite numerous passages from plaintiffs' affidavits
to demonstrate that plaintiffs are unsatisfactory students and
that they were unwilling to perform part time work. In the
absence of express regulations defining full time attendance
under section 4-1.1, we think these considerations are
irrelevant. With standing established we now turn to plaintiffs'
substantive attacks on section 4-1.1.
I. Is section 4-1.1 consistent with the Social Security Act?
In 1935 Congress enacted Title IV of the Social Security Act,
42 U.S.C. § 601 to 644, as a federal grant-in-aid program
designed to provide funds to states which establish Aid to
Dependent Children Programs.*fn4 Section 406(a) of that title
defines the class of dependent children for whom federal matching
funds are available. A dependent child according to 406(a)(2)
includes a child who is under eighteen or between eighteen and
twenty-one years of age and a student regularly attending
secondary school, college, or a course of vocational or technical
training. Plaintiffs argue that states must adopt this definition
in determining which persons are eligible for benefits under
their own A.F.D.C. programs. We disagree.
The primary purposes of Title IV of the Social Security Act
were expressed by Congress in section 401, 42 ...