The Perils of “Parens Patriae”

by Rajan Bal

It is conceptually uncontroversial that the government has an interest in protecting children from harm. Children as a demographic are more vulnerable than adults considering how many of their choices are not their own decision (such as where they live and who they live with), and as a result the government maintains a special responsibility towards ensuring their protection.[1] The doctrine of parens patriae, “parent of the country,”[2] allows the government to embrace this responsibility by intervening in the family unit to protect children whose welfare may be at risk. Under the guise of exercising this responsibility, the government often takes overly invasive action by forcibly removing children from their homes and placing the children under the care of the state. While the government should take children out of abusive households, it often confuses abusive households with poor ones.[3] As a result, poor families, often on welfare or headed by a single parent,[4] are subject to higher rates of having their family disrupted often just because they are poor.

The government must reconcile its special responsibility to protect children with parents’ unique interest in raising their children.[5] In Meyer v. Nebraska, the Supreme Court held that parents’ right to raise their own children is a fundamental right.[6] If the government aims to interfere with the family unit to protect the welfare of the children, it must narrowly tailor its intervention to accomplish that objective.[7] If it does not, the government runs the risk of evaluating its need to intervene based on standards of care for middle-class White families, which could impose untenable standards to functioning and healthy families of different backgrounds that result in damaging outcomes.

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Combatting Congregate Care for Foster Children: One State’s Approach

by Monica Patel

 

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Image available here

Children do better with families than without.[1] This might seem obvious, but the foster care systems across our country do not necessarily operate in accordance with this fact. In the United States, about 57,000 out of 425,000 children in the welfare system are living in group placements[2]—otherwise known as “congregate care.” Those 57,000 children are being deprived of a family environment during critical, and vulnerable, years in their development.[3] The group homes for these children vary from large institutional models to small “house parent” models.[4] States often use group placements because the local agency simply has not found an appropriate family placement, and the youth’s parents are mentally or financially unequipped to take the youth back.[5] Furthermore, African-American and Latino youth in the foster care system are more likely than white youth to be in group placements.[6]

California alone has around 64,000 children in foster care, with a little over 5,000 of those youths in congregate care.[7] In California, the high school dropout rate for youth in congregate care is fourteen percent, while only four percent of foster children not in congregate care (those in relative homes, nonrelative foster family homes, pre-adoptive homes, or trial home visits) drop out of high school.[8] Researchers in 2008 found that foster youth in group placements were 2.4 times as likely to be arrested as foster youth in family placements.[9] By these measures and others, long-term congregate care does not serve our foster children well.[10]

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Ability to Pay and the Consequences of License Suspension

by Brendan Cardella-Koll

It is no secret that the debt collection schemes that courts impose across the country disproportionately impact indigent individuals, even sometimes to the point of functioning as modern debtors’ prisons.[1] One such scheme, which has become the target of recent litigation in Tennessee, calls for the suspension of an individual’s license for failure to pay traffic fines.[2] The lawsuit targets this scheme as an unduly harsh and discriminatory debt collection method against poor residents.[3] The complaint alleges that courts impose fines without consideration of an individual’s ability to pay and then notifies the Tennessee Department of Safety and Homeland Security (“the Department”) of a failure to pay without any mention of the reason for nonpayment.[4] The Department is not required to make any inquiry into the reason for nonpayment before suspending a license, and Tennessee law imposes additional fees for the reinstatement of licenses suspended for failure to pay traffic fines.[5] In multiple other jurisdictions, debt collectors do not seek to determine an individual’s ability to pay nor do they allow indigent individuals to establish any sort of payment plan for the traffic fine.[6] As a result, if an individual is brought before the court for a traffic offense with an attached fine, the individual must be able to pay the fine in full or face the suspension of his or her license.

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Embracing the Ambiguity in Special Education Law

by Josette Barsano

Children living in poverty are more likely to be exposed to risk factors that hinder functional development and thus have a heightened need for special education services.[1] As a special education teacher in a low-income school district, one of the greatest challenges I faced was navigating the gray areas that govern the right of every student to receive, as the law stipulates, the “appropriate” educational and related services that are essential for them to progress academically.[2]  In my experience, the ambiguity surrounding what “appropriate” really means and how it should apply to each unique student was the source of heated debate. After sharing my concern of this opaqueness in the law with my Assistant Principal, she surprisingly advised that instead of bemoaning the lack of concrete definitions and processes, I should embrace the ambiguity. In her wisdom, she explained that there is much opportunity to effectuate meaningful change in the veil of vagueness. In contrast, stringent guidelines can lead to cookie-cutter outcomes that may not always serve the best interests of individual students with special needs. Time and again this approach led me to find consensus in situations where I thought it might not be possible, and it was instrumental in my success in collaborating with parents, teachers and administrators.

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It’s Time to Go Back to the Drawing Board for Public School Funding

by David Brunfeld

When Mark Twain was growing up, the residents living around the Mississippi River created a proposition to discontinue funding for public schools because of how expensive public schools were.[1] An old farmer asserted, in opposition, that “[i]f they stopped building the schools they would not save anything, because every time a school was closed a jail had to be built.”[2]

There is a fair amount of veracity in the old farmer’s words; it should come as no surprise that when education quality suffers, higher incarceration rates follow thereafter.[3] Roughly two thirds of all inmates across the country did not graduate high school.[4] These staggering numbers can largely be attributed to the difficulty in acquiring a job without a high school diploma, and without a job or any source of income, unemployment and incarceration cement a relationship.[5] To prevent this, we must continue to fund our public schools to ensure that youths of all backgrounds receive the best education we can afford to give them. Unfortunately, because of the system by which public schools are funded, this is not the case.[6] In reality, those living in lower income areas suffer with respect to their public schools’ funding.[7]

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Why the Congress Must Amend the Indian Child Welfare Act

by Dylan Byrd

The Supreme Court’s decision in Adoptive Couple v. Baby Girl dismantled vital protections for Native American children by unfairly limiting important federal statutes.[1]

In the 1970s, the federal government was in the process of removing one out of every three Native American children from their tribes and placing them in mainstream American institutions, foster homes, or adoptive homes.[2] To the average American child, the 1970s were enigmatic of the first Hollywood blockbuster or the grand opening of Walt Disney World. To the Sovereign Nation, this particular decade threatened to cripple its millennial generation, vis-à-vis state agencies’ removal of almost 40 percent of young Native children from their families.[3] This trend illustrates the government’s systematic denial of opportunities for Native American children to participate in their historic cultures, ideals, and experiences.

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Defend the Affordable Care Act, Lather, Rinse, Repeat

by Deborah Steinberg

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Photo by Deborah Steinberg

The Senate Gallery was packed for 1:00 a.m. on a bleak Thursday night, or more accurately Friday morning. It was a relief just to sit down, after we had been rallying outside the Capitol for six hours. Of course, these six hours were piled on top of night after night, week after week, of standing with disability rights groups, reproductive rights organizations, people fighting for transgender equality, and thousands of other individuals fighting to keep the Affordable Care Act (ACA) and the current structure of Medicaid in place.[1] No one believed the 2010 law was perfect, but the ACA was the first successful effort to regulate the health insurance market and ensure that low- and middle-income families as well as people with pre-existing conditions could access affordable and comprehensive care.[2] So we had fought, seemingly nonstop, for months to prevent these consumer protections from being repealed, as the Republican Party had been promising to do for the seven years since Obamacare was signed into law. It had been a long summer.

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Examining the Negative Impacts of Gentrification

by Emily Chong

Change to cities, neighborhoods, and communities is inevitable—however, with the latest tide of change, many communities are experiencing gentrification. Gentrification occurs when “communities experience an influx of capital and concomitant goods and services in locales where those resources were previously non-existent or denied.”[1] Usually, gentrification occurs when more affluent people move to or become interested in historically less affluent neighborhoods. Gentrification is a phenomenon subject to much debate—some believe that its effects are purely positive, while others argue that gentrification brings about harmful consequences. I argue the latter and examine the problems that gentrification causes.

Some argue that gentrification is beneficial since the gentrification process creates more development, rapid economic investment, and support of projects related to consumption and entertainment.[2] The incoming population of more affluent residents and people of privilege is directly connected to an increase in resource allocation to schools, stores, and other development. While these effects can be beneficial, the gentrification process becomes detrimental when it forces original residents to leave the neighborhood through exponentially increasing property prices, coercion, or buyouts. If there is no widespread displacement, and the shifts in the neighborhood are carefully planned through with community input and involvement, gentrification can be a good thing for the community, increasing “socioeconomic, racial, and ethnic integration.”[3] However, this is rarely ever the case.

Gentrification usually leads to negative impacts such as forced displacement, a fostering of discriminatory behavior by people in power, and a focus on spaces that exclude low-income individuals and people of color.

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Why the Current Structure of the Supplemental Nutrition Assistance Program Should be Maintained

Staff Editor Madeline Curtis reflects on the importance of preserving the Supplemental Nutrition Assistance Program. GJPLP has more on the changing nature of SNAP in Sarah Carrier’s recent Note, From Paper to Electronic: Food Stamps, Social Security, and the Changing Functionality of Government Benefits, which can be found on WestLaw and Lexis.

by Madeline Curtis

Per data from the U.S. Department of Agriculture, 12.7% (15.8 million) of U.S. households were food insecure at some time during 2015.[1]  Fortunately, the Supplemental Nutrition Assistance Program distributes around $70 billion in benefits to approximately 45 million recipients each year,[2] helping to curb the prevalence of food insecurity and poverty in our country.  In fact, according to a study by the Center on Budget and Policy Priorities, SNAP lifts millions of households out of poverty, keeping 10.3 million people (including 4.9 million children) out of poverty in 2012.[3]  A White House report on the long-term benefits of SNAP found recent research showing that participation in the program leads to “significant improvements in the health and well-being of low-income families.”  Additionally, children who receive food assistance show improvements in health, education, and economic status.[4]  Further, SNAP has one of the lowest error rates of any public benefit program and a strong record of accuracy in payment.[5]

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States Can Help Protect Immigrant Workers from Exploitation

by Mackenzie Yee

All workers, no matter where they were born, should be able to work under fair and safe conditions. No worker should be subject to exploitation, and there has been legislation at both the federal and state levels protecting workers’ rights, regardless of their immigration status.[1] Still, low-income immigrant workers, and particularly those who are undocumented, are especially at risk of being exploited in the workplace.[2]

Employers are able to exploit immigrant workers by threatening to report their immigration status if they complain about workplace abuses.[3] As a result, a handful of states have adopted laws prohibiting this type of extortion. The most recent such law was passed in May 2016, when Maryland became only the fourth state to pass a bill amending its extortion law to include threatening to report someone’s immigration status as criminal extortion if such threat is used to obtain something of value.[4] This law follows similar ones passed in Virginia and Colorado in 2006, and in California in 2013.[5]

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