To what lengths should we go to reduce racial disparities in the child welfare system?
In 2021 the Los Angeles County Board of Supervisors voted to require the Department of Children and Family Services to pilot a program of “blind removals.” The program, which had been tried to great fanfare in a couple of other jurisdictions, essentially required that the decision about whether to place a child in foster care be made without the decision-makers knowing the race of the child. This was intended to counter a long history of Black children being removed from their families at higher rates than other children. The theory of “blind removals” was that if caseworkers and supervisors didn’t know the child was Black, they would be less likely to make a racially biased decision.
Unfortunately, like other efforts to reduce disparities through department policy changes, this one failed. As researchers reported on the pilot this spring, “racial disproportionality persisted with Black children overrepresented in removals in both offices and Latinx children overrepresented in the West LA office in most quarters.” Other efforts have similarly failed. Implicit bias training, for instance, has been tried in a number of jurisdictions but has not produced any measurable results and in some cases seems to have made the problem worse.
Other policies across the country have simply attempted to reduce the overall number of families reported and investigated by child protective services. These include training mandated reporters like teachers to call CPS less often, as New York has done. And some hospitals like Mass General Brigham recently announced that in the service of reducing racial disparities, doctors and nurses will stop reporting to child welfare officials suspected incidents of maltreatment solely because a fetus or a newborn is exposed to drugs. Such policies of course run the risk of leaving more kids in danger. Moreover, because they do not specifically target Black families, they may reduce overall numbers of reports, investigations and removals without actually changing the proportionate disparities among different racial groups.
Certainly racial disparities are a cause for concern, but they can’t be the only consideration. In pursuit of statistics that look better for the agencies, are we really willing to let more children suffer?
Now Minnesota is dispensing with blunt instruments. Last month, the governor signed a law to codify different standards for the investigation, substantiation and removal processes for disparately affected populations — including Black and economically disadvantaged families. In the history of misguided responses to child welfare disparities, this is a new and concerning low.
First, the law requires that a higher standard of evidence must be applied by judges in determining whether abuse of children in these specified groups has been “substantiated.” Second, agencies will have to make “active efforts” instead of “reasonable efforts” to keep the children with their families. And finally, caseworkers will have to take into account “social and cultural values at all times” in making such decisions. That could mean, for instance, that cultural standards against corporal punishment might not apply to children of all races or that agencies are required to place foster children into same-race families.
The law, which in previous versions included only African Americans, had stalled in the state’s Legislature for years — in part because of questions about whether it was constitutional. There remain serious questions about whether the law will stand up in court, because it still refers specifically to African Americans as a group that is to receive different treatment.
The only racial or ethnic group currently subject to different treatment is Native children under the Indian Child Welfare Act, which (similar to the Minnesota law) requires different measures for determining whether maltreatment can be substantiated, different efforts toward reunification and different standards for placement in foster care or adoption. That law has withstood multiple Supreme Court challenges because the tribes have been classified as political entities, not racial ones. If anything, the Supreme Court’s affirmative action decisions last year should solidify the idea that treating people differently based on race will not pass constitutional muster. But that is only part of the issue with this new strategy.
The real problem — and the real reason no effort to reduce racial disparities has succeeded — is that there are simply disparities in child maltreatment. Child protective services is filling a need in the same way that ambulances do. They respond to calls for help.
Nationwide, Black children are three times as likely to die of child maltreatment fatalities as their white peers. In Minnesota, Black children constitute about 11% of the child population but make up 26% of the fatalities caused by abuse or neglect. And yet cases involving Black children represent only 17% of the families involved with Minnesota’s child welfare system. In light of their higher fatalities, the abuse and neglect of Black children may already be underreported and underinvestigated — even before we try to reduce disparities.
There are ways to check whether it is systemic bias that is causing racial disparities or something else. Factors like poverty and infant mortality are measured outside the child protection system and indicate a child might be at greater risk for harm. The racial disparities in these measures are actually larger than the racial disparities in the child welfare system, another indication that the system has already erred on the side of leaving too many Black children in dangerous situations. As one recent paper in the journal Child Maltreatment noted, “Available data provide no evidence that Black children were overreported relative to observed risks and harms reflected in non-CPS data.”
Before we throw out the constitutional principles of equal protection for members of every race, we should take a closer look at the facts on the ground. Efforts to reduce removals of Black children seem doomed to be disproportionately deadly — to Black children.
Naomi Riley is a senior fellow at the American Enterprise Institute and the author of “No Way to Treat a Child: How the Foster Care System, Family Courts, and Racial Activists Are Wrecking Young Lives.”
