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
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.
