A 2024 Minnesota law discriminates based on race by making it harder for black kids to be placed in foster care in cases of parental neglect and abuse, and harder for them to be adopted by loving families. It requires social services to make “active efforts” to prevent “out-of-home placement” of “African American and disproportionately represented children.” When black kids are removed due to parental neglect or non-certain kinds of abuse, social services must make “active efforts” to reunify children with the parents. By contrast, only reasonable efforts, not active efforts, need to be made to preserve white kids’ families in such cases. As the Minnesota law explains, “Active efforts sets a higher standard for the responsible social services agency than reasonable efforts to preserve the child’s family, prevent the child’s out-of-home placement, and reunify the child with the child’s family.”
So Minnesota’s law racially discriminates on its face. It’s called the Minnesota African American Family Preservation Child Welfare Disproportionality Act (MAAFPCWDA).
Minnesota’s law is modeled on the controversial Indian Child Welfare Act (ICWA), which Congress enacted to prevent American Indian children from removal from their tribes to be adopted by non-Indians. Child welfare officials and guardian ad litems have complained that ICWA makes it harder to protect neglected or abused children.
But the Minnesota law lacks ICWA’s constitutional basis. ICWA is not considered racially discriminatory by the courts, because tribal membership is considered a political classification, not a racial classification, according to the Supreme Court’s decision in Morton v. Mancari (1974). That decision upheld certain preferences for Indians contained in federal law.
By contrast, African Americans are considered a racial category, not a political category. So they generally can’t be given special treatment. Thus, the Supreme Court found that it was racially discriminatory for a college to give “African American and Hispanic applicants” favorable treatment in admissions. (See Students for Fair Admissions v. Harvard (2023)).
So the Minnesota law discriminates based on race, when it imposes special restrictions on foster care placements for black kids. Even if Minnesota’s law is designed to help African Americans, that does not change the fact that it racially discriminates. The Supreme Court has ruled that discriminating in favor of blacks is racial discrimination, and thus is presumptively illegal, in many cases, such as Richmond v. J.A. Croson Co. (1989), and Students for Fair Admissions v. Harvard (2023).
The fact that blacks may be overrepresented in foster care doesn’t justify racial double standards. The Supreme Court has said that giving blacks a racial preference isn’t justified merely because they are not “proportionally represented” in some area of life; thus, the Supreme Court struck down the City of Richmond’s preference in city contracts for blacks, even though blacks were 50% of Richmond’s population, but had received only about 1% of city contracts, in a city that was long segregated. (See Richmond v. J.A. Croson Co. (1989)). Blacks were not proportionately represented at all, but that still was no excuse for giving them a racial preference.
Blacks being referred to foster care at a higher rate is not something that can be “fixed” through race-based restrictions. A federal appeals court struck down a provision that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code,” viewing that as an illegal racial quota. (People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)).
Historical discrimination against blacks is not a reason to treat them differently. The Supreme Court ruled that blacks could not be given preference in college admissions, because race-based affirmative action is appropriate only as a remedy for the present effects of “specific, identified instances of past discrimination that violated the Constitution or a statute.” (Students for Fair Admissions v. Harvard (2023)).
Not only must specific, identified instances of discrimination be shown, but the discrimination must have been “intentional” on the part of the government entity that now seeks to give blacks a preference. (See, e.g., Builders Association v. City of Chicago, 256 F.3d 642 (7th Cir. 2001); Vitolo v. Guzman, 999 F.3d 353 (6th Cir. 2021).
A unit of government can’t give minorities a racial preference unless it “discriminated intentionally” against them, which is not shown by “statistical disparities” that “need not reflect discrimination, intentional or otherwise.” (People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997)).
Moreover, there must have been recent, widespread governmental discrimination against minorities, not just occasional instances of discrimination, to justify a racial preference by the government. (See, e.g., Brunet v. Columbus, 1 F.3d 390 (6th Cir. 1993) (discrimination that occurred 14 years ago does not support affirmative action today); Hammon v. Barry, 826 F.3d 73, 76-78 (D.C. Cir. 1987) (discrimination that occurred 18 years ago does not support affirmative action today); Middleton v. City of Flint, 92 F.3d 396, 405-06 (6th Cir. 2001) (anecdotes of discrimination do not support affirmative action, or mere statistical disparities, only “systemic pattern of discrimination” does)).
The Minnesota law is not just discriminatory toward black kids. It also is discriminatory toward other categories of “disproportionately represented children,” which include Native American and Hispanic children. The Minnesota law says that
“Disproportionately represented child” means a person who is under the age of 18 and who is a member of a community whose race, culture, ethnicity, disability status, or low-income socioeconomic status is disproportionately encountered, engaged, or identified in the child welfare system as compared to the representation in the state’s total child population, as determined on an annual basis by the commissioner. A child’s race, culture, or ethnicity is determined based upon a child’s self-identification or identification of a child’s race, culture, or ethnicity as reported by the child’s parent or guardian.
As the Center of the American Experiment notes, “According to the Department of Children, Youth, and Families (DCYF), 10,509 children were in the Minnesota Foster care system in 2023. This is down from over 11,000 in 2022 and from over 15,000 in 2019. Relative to their population in the state, Native and African American children made up a disproportionate share of the foster care system.” So are Hispanics.
DCYF notes that
In 2023, American Indian children were around 16 times more likely than white children to be in out-of-home care. African American children and children who identified as Hispanic of any race were both around two times more likely than white children to be in out-of-home care. Children who identify as two or more races were around eight times more likely than white children to be in out-of-home care, based on Minnesota population data from U.S. Census estimates.
The Minnesota law seeks to eliminate this disproportionality by treating these children differently than white children, by requiring “active efforts” to reunite them with parents accused of neglect or abuse, rather than just “reasonable efforts.”
The goal of eliminating racial disproportionality doesn’t change the fact that this is racial discrimination. Restricting placements based on race to meet a racial proportionality goal is a racial quota. When a court decree forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code,” a federal appeals court struck that down as an illegal racial quota, even though it was intended to correct racial disproportionality, and did not explicitly command racially different treatment the way Minnesota’s law does. (People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)).
That court explained that “Racial disciplinary quotas violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty. They place race at war with justice. They teach schoolchildren an unedifying lesson of racial entitlements. And they incidentally are inconsistent with” the requirement “that discipline be administered without regard to race or ethnicity.”
As Martha Njolomole notes, Minnesota’s law “makes it arbitrarily harder to remove certain children from abusive homes” by effectively creating “two distinct standards of protection” for children “based solely on ethnic and socio-economic factors.” Moreover, “if indeed social workers wield unfounded power to break up families, shouldn’t” the law’s limitations on foster placements “extend to every child in the state” regardless of race?
So far, the law has only gone into effect in the Twin Cities. As Njolomole notes, “As of January 1, 2025, Minneapolis and St. Paul are the first to implement the phased rollout of MAAFPCWDA. The law will become effective statewide on January 1, 2027.”
Minnesota’s law is modeled on ICWA, which appears to have increased child abuse and neglect. As Njolomole points out, due to ICWA,
Native American children are also more likely to return to abusive homes. Cato, for instance, documented a 2016 Minnesota situation whereby, “social workers took three Duluth children, ages 7, 8, and 9, into protective custody so often that they stopped counting the number of days spent in state care after it reached 500. Officers reported that the home was soaked in urine, with the family sleeping on the floor among piles of rotting food. Had the children been of any other race, they would have been rescued from their alcoholic, neglectful parents. But because they were Indian, they were repeatedly sent back to experience more mistreatment.”
