That’s why the
new one won’t fix child welfare either
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I have an idea for a great TV game show: Name That Lawsuit! Here’s how it works: I post excerpts from lawsuits about Tennessee’s “child welfare” system, contestants guess which is from the lawsuit filed 25 years ago and which is from the lawsuit filed last month.
Ready? You’ll find the answers at the end of this post. So now let’s Name. That. Lawsuit!
Excerpt A:
Foster care is intended to be temporary, until children can either be reunited with their families or placed in another permanent home; however, children in Tennessee linger in foster care and are moved from place to place without the opportunity for a stable childhood.
Excerpt B:
While in foster care, children routinely spend years, and often lose much of their childhoods and suffer additional deprivations, as they are moved from one inadequate placement to another without appropriate services, languishing in state custody.
Excerpt C:
Children are routinely placed in emergency shelters and other temporary holding facilities for upwards of six months at a time because the state has nowhere else to place them.
Excerpt D:
Tennessee’s Department of Children’s Services (“DCS”) warehouses children in spaces which lack the basic necessities of life, including adequate food, bedding, soap, and potable water. Intended as temporary placements, DCS leaves children in these situations for months on end.
It’s not really a game, of course. Rather it illustrates the need to understand why that first lawsuit failed – it’s the same reason the second lawsuit almost certainly will fail: Neither suit addressed the problem at the root of all the others: Tennessee tears apart thousands of families needlessly, often when poverty is confused with “neglect.”
Because the first suit was silent on that issue, and the litigators even thwarted the state’s own efforts to curb needless entries into care, it was doomed from the start. Indeed, it was like many other failed McLawsuits – almost identical in state after state.
That’s not hindsight. Consider the timeline:
2001: We post the statement of principles for the original Tennessee settlement and compare them to a far more innovative settlement in Alabama. That settlement demanded that the system be rebuilt to emphasize keeping families together. (A member of NCCPR’s Board of Directors was co-counsel for plaintiffs.) At the time we asked:
If these principles can indeed become reality, which would be the better reality for vulnerable children?
2005: Alabama’s success is on the front page of The New York Times. Yes, there’s been backsliding in Alabama, too – there always is when the monitoring stops. But it’s nothing like the collapse in Tennessee.
2009: Marcia Lowry, who brought the suit while leading the group known as “Children’s Rights,” doesn’t just ignore the problem of wrongful removal, she successfully sues to prevent the Tennessee Legislature from acting to curb it in the county where the problem was worst. And they used some interesting tactics to do it.
2014: Lowry leaves Children’s Rights and forms another group to bring the same sort of litigation, A Better Childhood.
2019: All court oversight of the Tennessee system ends. Though Lowry has left, Children’s Rights declares victory. But that year, Tennessee took away 22% more children than it did the year the lawsuit was filed.
2023: Entries into care are down, but still just as high as they were back when the suit was filed – and that’s now 70% above the national average, even when rates of family poverty are factored in.
2025: By now, Children’s Rights has dramatically changed course, engaging in advocacy and litigation geared to the only approach that works to keep children safe: doing more to end the needless removal of children. They’ve publicly acknowledged they got some things wrong when Lowry was in charge.
But over at A Better Childhood, Lowry brings her new Tennessee McLawsuit, which makes all the same mistakes as the old one.
The new suit makes no mention of wrongful removal, no mention of confusing poverty with neglect, and no mention of the pervasive racial bias in the system – something one would hope would be of particular concern when suing a state where children can be taken from parents whose only crime is “driving while Black.”
Tennessee’s children deserve a much better system, but that will require a much better lawsuit. It’s one thing to play a game of Name That Lawsuit. But there is no excuse for what A Better Childhood is doing now – playing games with children’s lives.
Answers: B and C are from the old lawsuit, A and D are from the new one.
