Tuesday, March 5, 2024

“Child welfare” and racism: Children’s Rights steps up

For the first time in its history, the group uses litigation to take on racism, needless surveillance and wrongful removal.  It’s not a full-scale lawsuit, but it’s a good start 

From Children's Rights' page discussing their civil rights complaint in Minnesota

Last week, in a post about the landmark lawsuit against the New York City family police agency for its abuses of children and families during investigations, I noted that Ira Lustbader, litigation director at Children’s Rights said “now is the time” for such litigation.  I pointed out that in its entire history, Children’s Rights had never brought such litigation, insisted it couldn’t be done, and sometimes even stood in the way of such efforts.  So I asked a question: 

Since you say “now is the time,” Ira, and now that other lawyers have shown you how it’s done, when are you going to start bringing lawsuits like this? 

I’ve got to admit, he came up with a good answer.  

It’s not a full-scale class-action lawsuit,  but it’s a good start:  Children’s Rights is representing the Minneapolis NAACP in a formal complaint to the federal Department of Health and Human Services Office of Civil Rights. The Complaint alleges that the two largest counties in Minnesota, Hennepin and Ramsey, engage in systematic, rampant, racially biased needless investigation and surveillance of families and needless removal of children. 

In recent years, CR has done excellent public policy work – but it’s stuck to the same stale litigation that rarely did any good and often did real harm.  But this time, the policy arm and the litigation arm of the organization worked together.  And this time, they’ve brought good litigation in the right place at the right time. 

The right place 

Minnesota has a particularly ugly record when it comes to family policing.  Year after year the state tears apart families at a rate more than double the national average, even when rates of child poverty are factored in.  The NAACP/CR Complaint reveals how much of that is driven by racial bias.  For example, in Minnesota Black children are twice as likely to be thrown into foster care as white children.  Biracial or multiracial children are seven times more likely than white children to be torn from their families. 

Minnesota’s record of racial disparity in investigations and foster care is worse than the national average, and the disparities in Hennepin and Ramsey Counties are worse than the state average.  

The right time 

Although Minnesota’s dismal record dates back decades, a key part of the reason things remain so awful is the Minneapolis Star Tribune.  Once, it was a source of some of the nation’s most insightful commentary on these issues.  But more recently it has descended to what the legendary journalist David Simon calls “Pulitzer sniffing.”    

Twice in recent years, the Star Tribune has exploited horror stories in an apparent effort to set off foster-care panics, sharp sudden increases in the number of children taken from their homes. The first time they succeeded.  But now they’re having a harder time.  Lawmakers are catching on to the fact that the deluge of false reports, trivial cases and poverty-confused-with-neglect cases encouraged by the Star Tribune actually contributes to the horror stories.  Even the Star Tribune quoted Kelis Houston, an NAACP committee leader and founder of the family advocacy group Village Arms, when she told a legislative committee:

"The worst thing Minnesota can do is keep doubling down on its failed approach," said Houston, adding that tragedies continue to occur because caseworkers are overwhelmed by "trivial cases." 

A Complaint like this can only reinforce lawmakers’ skepticism and help them understand what’s really needed to keep children safe. 

Three key causes 

The Complaint zeros in on three likely contributors to Minnesota’s dismal record:

 ● Structured Decision-Making.  This system of questionnaires filled out by investigators is essentially predictive analytics without the computers.  Reports in three states have linked SDM to increased removals of children, and analyses in Washington State and Michigan found racial bias in the SDM questionnaires. The Minnesota Complaint cites additional scholarly critiques of SDM, and offers these specific examples from the SDM Safety Assessment and Family Risk Assessment questionnaires in Minnesota. It’s relevant everywhere since SDM is so widely used. 

From the complaint: 

The SDM SA’s consideration of a caregiver’s inability to meet the child’s immediate needs for food/shelter, lack of water or utilities, and deeming space heaters for heat as unsafe, are characteristics that are proxies for both race and socioeconomic status. Minnesota’s use of these factors to support a child’s removal and/or ongoing separation due to alleged neglect discriminately and disproportionately impacts Black families who are overrepresented in Minnesota’s child welfare system for neglect-related allegations. 

Similarly, the SDM FRA’s consideration of prior assigned reports (even if not substantiated), prior CPS history (even if not substantiated), and whether either caregiver was abused as a child, are proxies for race and socioeconomic status and discriminatorily and disproportionately impact Black families in Minnesota, and in Hennepin and Ramsey counties, who experience child welfare system involvement more frequently, and are more likely to score higher under those categories. 

The specific inclusion of unsubstantiated reports and CPS histories directs the weighting of known discriminatory and disproportionate practices against Black families, as these categories by their very terms did not involve finding safety considerations justifying investigation and/or removal. 

The SDM FRA’s consideration of a household with three or more children as a maltreatment-predicting characteristic also serves as a proxy for race and has a discriminatory and disproportionate impact on Black families who are more likely to have three or more children. 

● Misuse of “emergency” removal power.  You know how family police agencies love to say “We don’t decide if a child is removed from the home, a court has to approve everything we do”?

It’s a lie. 

In every state, the police and/or the family police have the power to remove children from their homes on the spot without so much as calling a judge.  In Minnesota the power rests with law enforcement – and they abuse it constantly. All law enforcement officers need to do is think that a child’s “health or welfare is being endangered by the child’s ‘surroundings or conditions,’” or “reasonably believes” that such health or safety “will be” endangered. 

So it’s no wonder that, as the Complaint points out, between 2014 and 2019 half of all removals of children in Hennepin County took place that way.  In Ramsey County, it was 78%.  

● Lack of services to help families.  When your only tool is a hammer, every problem looks like a nail.  Like most places, the Minnesota family police have quick and easy access to tearing apart families – everything else is in short supply.  So children and families get hammered. 

The complaint calls on the Office of Civil Rights to launch a full investigation into the state’s “discriminatory actions.”  The office should do that.  In fact, they should do more.  In addition to looking at the enormous bias against Black families in Minnesota, they also should examine what data suggest is even more enormous bias against Native American families.  No need to wait for another Complaint! 

As for Children’s Rights, for the first time in decades, I’m looking forward to seeing what their litigation arm might do next.