ACLU History: Child Welfare Institutions

Document Date: September 1, 2010

The child welfare system was another enclave to which the ACLU sought to bring the protections of the Bill of Rights. The system often failed in its obligation to protect dependent children and discriminated in the way that it provided services. The Children’s Rights Project got its start at the New York Civil Liberties Union (NYCLU) in 1973. It moved to the national ACLU in 1979 and merged with the Juvenile Rights project.

The director, Marcia Robinson Lowry, pioneered a body of law to protect children dependent on child welfare systems. The ACLU developed realistic, long-term solutions to improve the lives of abused and neglected children across the country that brought increased attention and public scrutiny to systems previously all but ignored. The legal theory of children’s rights within government agencies was analogous to the ACLU’s work on prisons and mental institutions: once the government has taken over the burden of care for an individual, it has an obligation to protect that person from harm.

One of the ACLU’s first cases was G.L. v. Zumwalt, a major challenge to the foster care system in Kansas City. After a 16-year battle, the ACLU successfully negotiated a far-reaching consent decree that mandated specific reforms to be implemented by the city in its delivery of services to foster children and their families. Over the years, the ACLU brought many such cases against state and county child welfare agencies all over the country on behalf of children who, due to neglect, lack of funding and broken systems, were left to languish indefinitely in institutions.

In what would eventually become another landmark case, the ACLU launched an epic battle to reform New York City’s grossly inadequate foster care system. At issue was the city’s discriminatory practice of giving private religious agencies control of publicly financed foster-care beds. These mostly Catholic and Jewish agencies gave preference to white Catholic and Jewish children, while the growing numbers of black and Protestant children were overlooked or sent to inferior and inappropriate institutions. Such was the fate of Shirley Wilder, who, for lack of any other option, was placed in a state reformatory for delinquents with no treatment services for abandoned or abused children. When Wilder v. Sugarman was filed in federal court on July 14, 1973, it named as defendants six state and city officials and 77 voluntary agencies and their directors, and asked the courts to declare unconstitutional the entire statutory basis for the provision of child welfare services to New York City children.

The case was finally settled in 1986 after the parties agreed on widespread reform of New York City’s foster care system to improve the quality of services available to all children. In addition to eliminating discrimination and protecting religious rights, the settlement required professional evaluation of children when they come into care; rational placement of children on a first-come, first-served basis; a system for ranking the comparative quality of agencies; and ‘meaningful access’ for foster children to family planning and abortion. However, as with other such settlements, monitoring and enforcement have been challenging.

In her prize-winning book documenting the prolonged legal battle, The Lost Children of Wilder, investigative journalist Nina Bernstein concluded that reform of the child welfare system cannot effectively take place until there is acknowledgement of the system as ‘a political battleground for abiding national conflicts over race, religion, gender and inequality’ and the ‘unacknowledged contradictions between policies that punish the ‘undeserving poor’ and pledge to help all needy children.’

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