Elie Hirschfeld Symposium on Child Welfare


– We’d like to call the event to order. And um, welcome everybody,
I’m Marty Guggenheim. I co-direct the Family
Defense Clinic and um, and am thrilled to invite
you here, to see you here, to the first ever, in what
we hope will be a long line of formal um, Eli Hirschfeld’s Child Welfare Panel Symposia. That we hope to hold annually. About a year ago, I met Eli Hirschfeld, who is seated here. And we started talking,
and he finally remembered his wonderful experience
as a third year law student a this law school, when he took
the Criminal Defense Clinic. And it happened to be that
the year in which he took that clinic was the first
year that I was teaching in the clinical program here as well. And his favorite teacher
was my closest colleague at the time, Chet Merski. And we talked about those good old days, and then I told him, well, for me, those good old days have continued, but I shifted my work from
criminal and juvenile defense to family defense, and that lead to a, well, what exactly is family defense? And what did you do, what
do you do in the clinic? And after explaining that he said, that’s awesome, how can I help? And the answer was, well, we
can use some financial support. And we worked out an arrangement. We have for years wanted
to expand our capacity to do appellate work, because
everybody who does this work realizes that the best way to
get a judge to obey the law is to appeal an illegal ruling. And we were, as a
consequence of this support from Mr. Hirschfeld, able to create the first Eli Hirschfeld Fellow, the magnificent Amy Mozer. (crowd applauds) She’s our Fellow, and we
have been working together since August, and then
the last part of the gift was the idea that we should
convene on an annual basis to bring together people to
talk about important issues in child welfare, and if I
know anything about creating something that’s useful it is,
you start with the very best in the world, so the
goal was to create today, the rock star panel that we have. And I’m now more than
thrilled to turn over the proceedings to my close
colleague Chris Gottlieb, who will take over from here, thank you. (crowd applauds) – Uh, thank you Marty, thank
you Eli for bringing us together, um, I also
want to welcome everyone. Having started in family
court 20 years ago when this kind of gathering
was really unimaginable, it’s still, just uh,
really heartwarming to me to just see a room, and
a little bit surreal, honestly, still, to see a room of top notch lawyers, social
workers, parent advocates, parent activists, who really
care about family defense and really care about making
the child welfare system better, that’s not the kind
of room that was around 20 years ago and it just,
it’s very special to me to have you all here. Let me first just tell you
the plan for the evening. We have asked each of our panelists to talk with you about the issues and ideas that they have been working on recently. We’ll ask each of them to
take a turn doing that, and in then in the second
hour, we’re going to open it up for discussion, we’d really
like to have a robust conversation about what the
panelists have been thinking about, what you’ve been thinking about, and maybe what kind of next
steps we can think about taking together and then at 7, we’ll
break into a less formal conversation where we hope
you’ll stay for the reception, it’ll be in this room,
and continue to talk over wine and snacks. But my privilege for the
evening is to get to introduce our panelists and I really do
feel privileged to do that. We have Khiara Bridges here
from Boston University, Dorothy Roberts, you’re from
the University of Pennsylvania, and our own Peggy Cooper-Davis. I decided that for the
introduction, I’m not going to go through the lists of
their accomplishments. Because I don’t want to take
that much time (chuckles), as it would to do that, even just to list the writings of the three
people that we have here that have profoundly effected our field. Just listing those would take too long, so I’m not gonna do that. I just wanted to take a
minute to say why I think it’s particularly meaningful to have these three particular individuals here. And in the last few weeks, as this event has been approaching, people have been coming up to me. I mean, students, my
professional colleagues, parent activists that I work with, I mean, there just has been
a buzz about this event, that I think it’s fair to say it doesn’t, it isn’t normally
associated with a law school panel with law school faculty on it. I mean, there’s, I have
felt an energy that I think is meaningful, and when I
thought about why that is, it occurred to me that I
think that the three of you that are here have played
for those of us in this room a role that um, a really important role, that in some ways is analogous to the role that those of you who work in this field play for your clients. And what I mean by that is, that one of the things that
lawyers and social workers, parent advocates and parent activists do for people who are dealing
with children’s services is in addition to fighting
for them in the courtroom and the agencies, and those
are super important fights, of course, but I think
separate from the fights that you’re fighting, you provide
something really valuable to people who are dealing
with children’s services simply by seeing, really seeing, some of what is happening to them. And letting them know that they’re not crazy to think
that what is happening to them is not okay. And they’re not crazy to
think that what is happening to them has to do with race. I think, I know, that
the people in this room are sending that message, implicitly and explicitly,
to the people you work with on a daily basis. And what I realized is that
Khiara and Dorothy and Peggy have, in a sense, played that role for us. That is, they, in their
writing and their speaking, they have acknowledged
what we see everyday. And they have told us with the authority that their academic prowess gives them, that we’re not crazy to think
that what we see is not okay. And we’re not crazy to think
that it has to do with race. And to give us a language
to speak about that and to think about it
and to figure it out, and not just feel it and be hurt by it, but to start to grapple with it, I mean, that has really been a gift, I think, these three individuals
have given to all of us, and I think that accounts for the energy, and we’re just, we’re
thrilled to have you here to take that conversation
the next step forward and I just would ask you all to join me in welcoming them, and then
I’ll turn it over to Khiara. (crowd applauds) – So thank you all for being here tonight. I am utterly humbled to
be asked to speak to you, because I feel like you all
know a lot about this subject and I feel like all of you could
be panelists on this panel. And I’m also humbled to
just be on the same stage as Dorothy Roberts and Peggy Cooper-Davis. So, I’m also not used to
speaking in a handheld, and so I feel like Beyonce, so I might–. (crowd laughs) I like it, I’ll just say that. (crowd laughs) I will insist from now on. (crowd laughs) So like everyone here,
I’ve spent a lot of time thinking about the child welfare system, and why it looks the way that it looks, and why it operates in
the way that it does, and specifically I’ve been thinking about why it is that the family is subjected to interventions by
child welfare authorities are overwhelmingly poor, and
disproportionately non-white. And I’ve been thinking about
why it is that child welfare services operate so brutally vis-a-vis the poor families of color that
are under it’s jurisdiction. Why does it seemingly remove
children from their parents so gratuitously, and once
children are removed from their families, why do family
reunification plans require parents to do things that have nothing to do with the reason for their
children being removed in the first instance, right? Why do these plans
require parents to undergo things like anger management
classes and vocational training and parenting classes
and substance testing in order to be reunited with
a child that may have been removed for reasons
that have nothing to do with a parent’s anger, or
lack of vocational skills, or approach to parenting,
or substance use? So, in my scholarship, I’ve argued that the reason the child welfare system looks the way that it does and
operates the way that it does is due to the moral
construction of poverty. The moral construction of
poverty is a simple idea that poverty, that people are poor because there is something wrong with them. It is a profoundly
individualist explanation of poverty, meaning
that it explains poverty in terms of the individual’s
failures, right? It doesn’t look to
structural causes of poverty. It ignores things like a
labor market that contains fewer middle skill, middle
wage jobs than it did in decades past, it ignores
things like the fact that women are paid less
than men for the same work, it ignores things like the nation’s choice to pursue mass incarceration as it’s means for addressing it’s social problems, which is a policy choice
that does a wonderful job of impoverishing already
impoverished people, families, and communities. And so the moral construction of poverty ignores all of these
structural causes of poverty, and simply concludes that people are poor because they’re lazy, or
they’re irresponsible, or they’re promiscuous and they
like to have a lot of kids, or they just don’t have a good work ethic, or don’t like to work,
or just feel entitled to government handouts. Now, know that if people are
poor because there is something wrong with them, then there
is nothing wrong with the demographics of the child welfare system, and there’s no, nothing wrong
with the way it operates. If people are poor because
there is something wrong with them, then the child welfare
system ought to be focused on poor families at the
exclusion of wealthier families. The child welfare system
ought to be comfortable removing children from
their parents’ homes, and the child welfare system ought to make parents jump through hoops
before reuniting them with their kids. This is because if people are
poor because there’s something wrong with them, then when
you’re confronted with a poor parent, then by definition,
you’re confronting a person who has something wrong with them, but who is nevertheless raising a child. The fact of a poor parent,
means, by definition, that the child is dependent on a person who has something wrong with them. And so this is perfectly
illustrated by the case of NANW, and I came upon this
case because I read this book, I don’t know if you guys heard of it, but called Shattered Bonds. (crowd laughs) So um, the case involved the
removal of a six-year-old girl from her mother’s
home because the home, essentially, was dirty. And the, and admittedly, it was dirty, the court described the home as follows: inside the apartment,
the worker discovered the entire front room to be strewn with a collection of garbage, clothing, and other general clutter. Ashtrays were filled to
overflowing with some knocked over. Windows and screens were missing, garbage materials were
embedded in the carpet. They had about 12 kittens
or cats living in the, in the house, squallet
conditions in the kitchen, dishes stacked in the sink on the counter on the table, cat box
filled with excrement found in the kitchen and some of the cats’ excrement was stuck to
NW, the child’s clothing. So the majority upheld
the removal of the child from the home, however,
there was a dissent. And the dissent rightly
observed that the state would spend more time removing
the child from the home than simply hiring somebody
to clean the house. Now, if we, so the question is, how does this make sense at all, right? So if we view the case,
and if we view it in NW’s mother’s home through the
lens of the moral construction of poverty, the case makes
all the sense in the world. We can see how providing a
cleaning service to this woman would not have really solved the problem. Essentially, the dirtiness of
the home is not the problem, the moral construction of
poverty tells us that the dirtiness of the home is simply a symptom of a larger pathology. A pathology that touches
on the moral character of a woman who would allow her home to arrive in such a state. See, so one can see an argument that there has to be something
wrong with the person, morally and perhaps psychologically, for her to be willing to
live in such conditions. If this is the case, then
hiring a cleaning service for NW’s mother and returning
the child to the home is simply insufficient. Sure, the child would’ve
been living in a clean home, but she would still be
at the mercy of a woman who’s character is so
compromised that she would be willing to live in such conditions. So, that explains why the
court felt comfortable removing this child from the home, the state just can’t fix the
discreet problem of the dirty house, it just can’t
hire a cleaning service. Instead it has to fix the
parent through anger management classes, through vocational
training, through parenting classes, through drug testing
and so on and so forth, and I think that the moral
construction of poverty explains why the child welfare
system tends not to try to fix isolated problems. Instead it attempts to
fix problematic people. That is, poor people of color. However, recent events
have caused me to question the universality of the moral
construction of poverty, in other words, I’ve had
to reconsider whether the moral construction of
poverty applies to everyone. Until recently, I felt pretty
confident as a general matter that people have assumed
that people are poor because there is
something wrong with them. Now I’ve always recognized
that structural explanations of poverty, which again,
insists that macro, large scale forces sort of work to impoverish people, I’ve always recognized that
those sorts of explanations of poverty have some degree
of salience in the US. For example, in the early days of the 2016 presidential election, Jeb
Bush, back when he was trying to secure the republican nomination, he had this quote that
circulated in all the major media outlets in which
he said that Americans needed to “work longer hours
and through their productivity gain more income for their families”. And then he got pilloried
for making that comment. People said that Bush
was arguing that workers were not working hard enough
if they were not earning enough money to support
themselves and their families. Essentially, people said
that Bush was saying that if people couldn’t make ends
meet, it was their own fault, and note that people were
accusing Bush of embracing individualist explanation
of economic successes and failures. The kicker is that Bush eventually
disputed this explanation of his work longer hours remark. He stated that the remark
was not an argument that workers who were having
trouble supporting their families were lazy, instead he said, it was an indictment of
the lack of full-time jobs available in the labor market. He said that his comment
was a measure of his concern for the 6.5 million part time
workers who wanted to work full time, so note that Bush
recognized the political inadvisability of blatantly
individualist explanations of poverty and low-income,
and in light of that political inadvisability, he instead
embraced structural explanations of the phenomena, arguing
that the country needed “high-sustained economic
growth in order to solve the problem of the evaporation
of the livable wage”. So, the Bush incident suggests
that structural explanations of poverty and low-income
have had some degree of traction, that said,
although these explanations pop up every now and again,
I have always felt confident in concluding that they have
not deeply saturated the culture, at least not to the
extent that individualist explanations of poverty have. For example, there is a
substantial literature documenting that the
most favored explanation of poverty in the US
is one that identifies individual behaviors as
the route of indigence. There’s a social psychologist who has done a poll of the polls, essentially, she’s done, she’s summarized
all of the literature on this question. And she says: most of these
studies find that Americans believe that there are multiple
determinants of poverty, but that individualistic,
or internal causes, examples being lack of effort, being lazy, being low in intelligence, being on drugs, those individualistic causes
tend to be more important than societal or external ones, like low wages, like being
forced to attend bad schools. So she’s summarized the
literature and found that, for the most part, people
embrace individualistic explanations of poverty, people embrace the moral construction of poverty. And then there was a poll
that was recently conducted by the Pew Research Center,
and the poll confirmed that the majority of Americans
believe that the poor are responsible for their poverty. 60% of the respondents agreed
with the proposition that “most people who want to get
ahead can make it if they’re willing to work hard”. And that same poll showed
that 76% of republicans versus 49% of democrats
reported holding the belief that most can get ahead through hard work. Now those figures are interesting, right, and one might cite them just
to show that conservative, folks with conservative
politics are more likely than those with liberal
politics to believe that individual effort, and the lack thereof, produces economic successes and failures. But that same poll can be shown to cite, or can be cited to show that close to half of those folks with
liberal, “liberal politic”, believe that individual effort produces economic successes and failures. So yeah, I’ve been pretty confident that most people would
believe that people are poor because there’s something wrong with them, most people believe that
the moral construction of poverty explains poverty. However, I had a come to
god moment, if you will. It was November 8th, 2016. (crowd laughs) Trump was elected to the presidency. And it was only then that I realized that individualist
explanations of poverty, and the moral construction of poverty, have a great deal of
traction when they’re offered to explain the poverty of
those without race privilege. It was only on November 9,
after I woke up with this migraine, that I realized
that structural explanations of poverty have a great deal
of traction when they are offered to explain the poverty
of those with race privilege. Very few people believe that
individualist explanations of poverty can explain the
white poverty of the rust belt. Very few believe that individualist
explanations of poverty can explain the white poverty
of the people who live in coal country. The country has, for the most part, both sides, right,
republican and democrat, conservative and liberal politics, both sides have rejected
the idea that white folks living in that part of the
country are poor because they’re lazy, or irresponsible,
or have a bad work ethic, or are promiscuous, or feel
entitled to government handouts. People on all sides of
the political spectrum are convinced that white
folks in the rust belt and coal country are poor
because of structural forces. The industries that once
supported these families have been moved overseas,
or environmental regulations have limited the profitability
of certain industries and have gone elsewhere. These are decidedly structural
explanations of poverty, they are not individualist
explanations of poverty. So recent events have caused
me to take even more seriously the way that race impacts the
explanations that we offer for poverty. Structural explanations are the domain of the race privileged. And individualistic
explanations of poverty are the domain of those
who lack racial privilege, and so it leaves us to
wonder, and to think through how we might leverage
this embrace of structural explanations of poverty of
those with race privilege, how might we get folks
to embrace structural explanations of the poverty
of the people of color who were under the jurisdiction
of the child welfare system? I firmly believe that if we as
a society thought that these poor parents were fundamentally
good, then our child welfare system would look
a whole lot different than the way it currently looks, and it will operate completely differently from the way that it currently operates. Thanks. (crowd applauds) – Yes? Good point. There are seats open here in the front. I know they say reserved,
but you all should come up and use them if you don’t have a seat. Absolutely. Uh, and now we’re going to
turn it over to Dorothy. – Okay! I, too, am very grateful, and honored, and humbled to be here. It’s a much bigger
audience than I expected. And like Khiara, I feel as if I’m among people who are experts in this field, advocates, and very
knowledgeable and very committed, and so I’m just grateful to be with you and share some of my current
thoughts on this topic of the punitive child welfare system. I guess I’d like to
just add to the example that Khiara gave, I think
it’s absolutely true that structural explanations
for inequality apply to white people in America,
and not only behavioral, but even biological explanations
have been applied to black people and other people of color. Another area where we can see
this is the rising death rate among whites in the United
States, largely from drug overdose and uh, suicide by
guns, and the explanations for those have not been
at all that these people are biologically predisposed
to drug addiction and violence, those are
explanations that continue to explain in the media and
even in scientific literature drug use by black people,
and in particular, biological explanations
about black mothers who supposedly reproduce
children who are destined to be social deviants and
criminals and welfare cheats, that sort of thing. So there is this very stark difference, and I agree, across
the political spectrum, because we hear very
conservative politicians pointing out relatives that
they have who have drug problems and explaining it as social
conditions that are creating it, at the same time that the
idea that black people are predisposed to violence,
criminality, and drug abuse continues to circulate, and in fact, not to, not to plug another
book of mine (laughs), thank you to Khiara, my
latest book, Fatal Invention, is about the biological concept of race. And some people say, well
how is that connected to your work on this child welfare system and reproductive justice? Because these underlying ideas
of biological predisposition of, especially, black people,
to take poor care of their children, and to rely on
welfare, and to become criminals, underlie this, everything
that we’re talking about now. And support a view that a
punitive system of child welfare is good, it’s good for black children, because they are being
raised by people who are innately incapable of taking care of them. So, when I began to work on this issue, I immediately noticed
that most of the children, you know, in New York City
in foster care, were black. Most of the children in Chicago,
in foster care were black. And I was shocked that that
wasn’t a huge racial justice issue (laughs), I didn’t, you have to know, you couldn’t
possibly work in this field without seeing it, and yet,
it was just taken for granted that that was how the
system was supposed to work. And if anything, even after
all these years of many of us advocating against racial
injustice in the child welfare system, the term that’s used
is racial disproportionality, which suggests that it’s
just the disparate impact of child welfare on black
children, because black children need those services more and
therefore there’s no need to change it, if anything,
maybe we have to expand the services but why is it
that the service is a punitive violent service of coercively
taking children away from their families, policing
families, policing entire neighborhoods, if you look
at where child welfare agency involvement is concentrated in big cities, it’s concentrated primarily in black, impoverished neighborhoods,
segregated neighborhoods, and everybody in the
community is effected by it, everybody, whether they’re foster parents, whether they’re family members
taking care of children, whether they’ve been removed from foster, from their homes and put in foster care, whether they’ve, their kids
have been taken from them, they, someone in their
family, someone on the block, someone in their school,
little kids know what the van looks like that comes to take you away. Everybody knows. So we’re talking about not an individual responsibility issue, what Khiara was talking
about is the ideology, but it’s a false ideology
that’s clearly false when you look at how the system operates. It is a system of state
control of entire communities that operates in an extremely violent way that contradicts every
principle, supposedly, that we have in America,
of family freedoms and you know, constitutional rights, in ways that people are
shocked when they find out that, you know, someone
can come in your home and take your kids away without
a court, without a warrant, without a court order, it’s
not even reviewed immediately and once your child is in
foster care, as you all know, it’s very unlikely they’re
going to come out any time soon. And so this, when you
think about it politically, it switches from this question
of individual parental responsibility to a question,
a political question of power and of massive state control of entire groups of people. Why, in order to disrupt their families, in order to keep them occupied
with, instead of organizing for change, even though it
has not stopped many, many parents from organizing for
change, but it’s difficult, and in order to promote the idea that these communities are, uh, disadvantaged, not because
of structural forces, but because of the bad behavior of parents in the communities. And so, what I’ve been
thinking more and more about, and I’m sure many of you have, as well, is when you start thinking
about the foster care system that way, it sounds a
lot like prison, right? Yes! It sounds a lot like the prison system! It operates, you start to
see, this is not a service, this is not a helping
organization, iset of agencies, this is a punitive policing
agency that functions to police, control, and punish communities
much like the prison system. Then you start to notice,
well, goodness that’s how the public assistance system works as well. We all saw that in the
case of the young woman who was waiting to find
out why her daycare, right here in New York,
why her daycare benefits had been stopped, there’s no place to sit, she’s sitting on the floor,
they come over and tell her she has to move, and we see
the video of them yanking her child away as she’s
screaming and told, we’re going to take
your kids away from you if you don’t comply and we
see; right, they ended it, you know, she spent some
time in Riker’s, we see how in public benefits offices,
there’s a similar type of violent, punitive approach and in fact, public assistance is basically a behavior modification system now, there’s no right to it, the whole point, which Congress said when it passed the Welfare Restructuring
Law, a year before it passed, the Adoption and Safe
Families Act, you know, there’s a connection there. That it’s designed to try to push mothers who rely on it,
especially black mothers who rely on it, into certain behaviors, marriage, not having any more kids, deter them from having children, and low-wage work, again,
with the philosophy that the reason why they
are in their disadvantaged position, and come to rely on welfare, is because they are not
complying with family norms of marriage and uh, not having kids if you
can’t afford to have them. We see the connection to
the deportation system, which now, all of America
has seen and some, for the first time,
realize, that the state takes children away from their parents. You know, that got all this attention, and many of us had to say, guess what, that goes on every day (laughs) in communities of color
in the United States, and in poor white communities as well. We see the connection
to the education system. The school to prison pipeline. You see the connection
in the healthcare system, the way in which people
have been brutalized when they seek healthcare,
and that prisons are one of the main providers
of mental health care in the country. We see it in evictions, you
know, I could go on and on. My point is that we can
see this punitive approach to inequality and family need in every single institution
in the United States. And, borrowing from
prison and the carceral nature of prison, many
of us are seeing that there is a carceral
approach to people’s needs that helps to explain
inequality as a form of, in, defectiveness of people who
are surviving the inequality and instead of providing the public provision
for people who have been harmed by structural inequality, the state has an extremely
punitive and violent approach to these groups. So, it’s um, one way of looking at it is the way in which neoliberalism, the shrinking of the welfare
state in the United States with the abolition of
entitlement to welfare being an example of it, we can see
it in lots and lots of programs that have been slashed in
the support for capital accumulation, that, it’s
like, really exaggerated under Trump where every single, every single policy is about
making rich people richer and punishing people who are
trying to struggle in this era of shrinking public support, and the, so the flip side of privatization is increased punishments,
or policing, surveillance, and punishment, and now we
can see how the foster care system is part of this
expanding carceral approach to family’s needs, and when we see that, we can see why the idea
that the only solution is abolition for prisons,
that is the approach that we should take to
foster care as well. There’s no reforming a
system that was designed to punish people, and that has expanded like the prison system, and
like the welfare system, expanded in it’s punitive
approach as more and more black people became involved in it. It’s absolutely connected to racism. You can’t explain mass incarceration, the explosion of foster care, and the uh, the abolition of welfare without seeing how racism
fueled all of these, all of these, and how they have lead to these disproportionate
numbers of black people in the systems, it’s not, they don’t just happen that way, it was designed that way. Now I just want to close with a topic that I’ve been
paying greater and greater attention to that is
related to this expanding carceral regime, which
includes the child welfare system, and that is predictive analytics. Big data, automated decision making, and predictive analytics. Again, it’s not just a coincidence that, you know, just a result
of advances in science, that state agencies are using these tools to help them
police and punish people. It’s because these tools
are useful to punish people. And I’ll just point three features. Big data, so that the
way in which government agencies are making decisions
are based on huge data sets and algorithms, mathematical algorithms, that interpret the data to make, number two, predictions
about peoples’ risk of committing crimes or
maltreating their children. And, or cheating welfare, and, you know, whatever, not doing well in school, you know, whatever
institution we want to pick that’s part of this carceral net, predictive analytics helps and again, related to what you were saying Khiara, it’s not about individual
responsibility anymore, it’s about the prediction
that you may do something in the future and that
prediction is based on an automated decision that comes, er, I should say, the
automated decision is, the prediction leads to
an automated decision. Now this is supposed to be more efficient, fairer, now take away all the bias that we see in the foster care system, in judges, sentencing by judges, parole officers’ decisions, and it, you know, it
logically seems to make sense, well if you’ve got a computer doing it, it’s better than a human
being who’s biased doing it, but the problem is, that
all the bias of human beings in the past is, is put into
the data and algorithms, and the algorithms are
learned, they, they um, continue to change based
on the algorithm itself, and the data that it’s interpreting, and so you end up with
structural inequalities and human biases built
into these predictions. I’ll just give a quick example. There’s a great recent
book by Bridget Eubanks automating inequality
where she looks at this in public assistance programs, and one of the programs she looks at, the only people included
in the system were people who relied on government benefits, er, public assistance benefits. So it excluded all the elite
people in the community to begin with and included people already. So that’s one form of bias. But the factors that
determine whether someone is going to commit a crime in the future, or is going to do poorly in school, or is going to um,
maltreat their children, are factors that are
biased in the first place. So for example, that you’ve got a relative who was incarcerated. Well we know that
incarceration is biased by racial profiling and, you
know, sentencing decisions, and uh, concentrating in
particular communities to even detect crime, and so, all of that bias is built into the
data and the algorithms in the first place and the idea that people are risky, and those
are the people that need to be monitored and punished
and their kids taken from them or they’re incarcerated, deprives a decision maker
from actually assessing the individual culpability. So now, these systems,
it’s not about individual culpability, it’s about
the risk that’s created by your social status. They’re just reinforcing the inequality. And then the prediction
then, and I’ll end with why I think, what is at the
heart of why these are so valuable to a carceral
state and why we should be very concerned about it is that what the automated decision is is a prediction of the
future that is based on past inequality. So there’s no opportunity
in it for human beings to imagine a more equal future. It deprives, it’s a way of saying, we have a new system here
that is going to perpetuate past inequality, and it
will automatically do that. Yes, human beings are biased,
but they can also organize for social change, they can
also have their minds changed, that’s why we, you know, that’s why we do what we
do, we believe, right? You know, that human beings can change. They can change social
structures, they can change what they believe about the innate defects of other people, so, but, but, an automated decision
based on past inequality can’t do that. And so, we should be about figuring out abolitionist tools that allow for us to
envision a better world that is not based on punishing people who are struggling because
of structural inequality. But is based on a vision
of a world that is not structured by these unjust hierarchies and what are those tools? What even is the very way we
can think about other human beings that don’t rely on
the kind of assumptions Khiara talked about, or
the biological concepts that we’re divided naturally by race? That’s, I think that’s
the chore that we have, the beautiful task that
we have in front of us that we can see when we
start to understand the child welfare system in political terms, as opposed to a system that
deals with individual parents’ irresponsible behaviors. Thank you. (crowd applauds) – Is this working? Oh it is, how nice. So I echo the thanks to our conveners, and to the supporters of our conveners, but I’m going to rush,
because we want to save lots of time to talk with you folks, and um, I have several
things I want to say. I have to ask you to apply
here the principle of charity that linguists sometimes talk about, and that’s the principle that,
if someone says something that doesn’t seem to make sense, instead of saying ugh,
that doesn’t make sense, you think about how it might make sense, and then you might understand the person. (crowd laughs) ‘Cos I’m going to make some leaps here, and I ask you to follow along with me. So the first thing I’m gonna
do is say that in 1980, I am showing my age, shortly
after I was sworn in as a family court judge, uh, a more senior judge of that
court looked me in the eye, she was a wonderful woman, and said, you know, we do things to families that we would not do to our own. She was a white judge speaking
to a new black colleague, and so I understood that the
kinship that she was suggesting was a kinship of class,
but she was a politically sophisticated woman, and so, I understood also that
the ‘we’ was often white, and the ‘our own’ were white, and that the others to whom
we did things that we wouldn’t do to our own were people of color. The subject of this symposium,
racism in child protective systems, seems a little bit remote from the subject of my talk. The subject of my talk is
Post-Colonial Constitutionalism. (light crowd laughter) I hope that I can quickly
show you how and why those things are related. People who are familiar with
the child welfare system, and I think almost
everyone in this room is, or with child welfare
systems in other communities, will probably agree
quickly that the comparison to colonization is apt. You have an entity, a
child welfare system, that assumes authority over and supervises and alters the terms of life
in a community and in families that had thought of
themselves as autonomous. And it does so, most importantly, as my good friends, with whom
I have the honor of sharing this panel have pointed
out, with a presumption of cultural or informational,
if not biological, supremacy. And supremacy’s the word
to keep your eye on. It professes to act in
the long-term interests of communities and families,
as it undertakes a kind of cultural or educational conversion. Kidnapping of native
children to boarding schools for socialization comes to mind, as do the orphan trains
of immigrant children being shipped to more American homes farther west in the past. I want, though, to emphasize
that the colonial metaphor is somewhat harsh, for
child welfare agencies earnestly and sometimes honorably aim to protect children
against the vices, failures, or incapacities of their parents rather than the structural forces that um, make it difficult for
their parents to care for them. So we can’t fault the
agencies for expressing this communitarian sense of responsibility. Responsibility for children
with whom they have no kinship, no friendship
ties, and very often, no ties of affinity. That sense is appropriate
and commendable, but, I will suggest to you
that good governments, good child welfare
agencies, like good parents, must appreciate and
respect the tension between liberty and loving care. And I’ll suggest that governments
that are self-consciously post-Colonial have things
to teach us about managing those tensions. When I see speak of
post-Colonial constitutionalism, I refer to constitutional principles adopted in reaction to
supremacist arrogance and atrocity. The South African
post-Apartheid constitution is the most prominent example. But it’s joined by post-World
War II constitutions of many other nations,
following independence from imperial powers. The German post-Holocaust constitution, while not post-Colonial in the sense that it followed independence
from an imperial power, is analogous in that it is reactive to supremacist exterminations and other policies. Analysts who are more knowledgeable than I in the field of comparative law have pointed out that
post-Colonial constitutional policies and practices vary widely in their embrace of
human rights principles and I know that’s true. Nevertheless, there is a
burgeoning jurist prudential and political set of philosophies
that are self-consciously reactive to supremacist
and imperial assumptions. I want to argue that
we in the United States would be a better people and would have, among other things, a much better child welfare system were we to adopt a
similarly reactive stance. Now the United States is
post-Colonial, technically, of course, (crowd chuckles)
in the sense that our country was formed in rebellion
against British imperial rule. We seem, however, to be in
denial about our post-Colonial status, and the United States
is not usually thought of as a post-Colonial nation. This has to do, I suppose,
with the fact that the United States revolution was more
a rebellion of colonizers than of indigenous people, more like a bore war
than like an indigenous or enslaved peoples’
independence struggle. I suppose it also has
to do with the fact that many in the United States
have thought of themselves as members of a white
community, alas, many still do. And colonization is typically
thought of in terms of a white other binary sign. So, that said, I want to try
to address three questions. How is it that we are,
after all, post-Colonial? Why is our post-Colonial
posture an especially important thing to give attention to right now? And what has all this to
do with black families in the child welfare system? Okay. How are we post-Colonial? I appreciate that we’re
post-Colonial in an unusual way. The revolution of the 1770’s
was a war against distant monarchical rule, and clearly
a rule against governments without representation. But British rule over the 13 colonies was not as overtly supremacist as was British rule and
the rule of other countries over lands that were
populated by people of color. Disregard of native sovereignty
in the United States and compromise with the
institution of slavery factored heavily in the United States revolutionary calculus. The declaration that we
are all created equal and endowed with inalienable rights was not explicitly given the force of law. And the constitution that followed did not disavow, but only papered over, the new nation’s caste structure. It contained no equal protection clause. The Bill of Rights was an after thought that protected only against
abuse from the national government, states
remained free to enslave and free to disenfranchise. Citizenship was undefined
and the Supreme Court was therefore able to
announce in Dread-Scott that African Americans could not qualify. So I invite you to think differently. I invite you to move from the 1700’s and think of the United States Civil War as a war of liberation from
Colonial-style oppression. And to think of the
post-Colonial, the post-Civil War reconstruction as the
formation of a new nation that would stand well, at
least, half-heartedly stand against supremacist oppression. To think of enslaved people
deserting plantations and joining Union armies,
to think about abolitionists also joining those armies. In other words, to think
of the United States as people engaged, at
least since the beginning of the Civil War in a
struggle against supremacy and hierarchy. A post-Colonial people. What are the 21st century
implications of that? The idea of post-Colonial
constitutionalism is perhaps most easily described in reference to South Africa and South Africa’s Supreme Judicial Court. Lawrence Ackerman who once sat
as a justice for that court has explained that
respect for human dignity, I want to repeat that,
respect for human dignity, informs and enriches the
proper interpretation of South Africa’s constitution. And he made clear that
dignity is intrinsic and inalienable to every human being. Remember and responding to the indignities that Apartheid imposed on
black and brown South Africans. South Africa’s constitution
explicitly establishes and it’s Supreme Judicial
Court consciously attempts to enforce principals of
equality and human entitlement to concern and respect. In the South African case,
challenging laws that criminalize same sex love making, the
Supreme Judicial Court noted that the experience of subordination, of personal subordination above all, lies behind the vision of equality. The court was required by
precedent to examine the impact of discrimination on
members of the affected group, and the court went on to examine
in detail the indignities that were imposed upon
sexual minorities as a result of the laws that were being challenged, and then to interpret South
Africa’s constitutional guarantees of equality,
respect, and non-discrimination to require invalidation of those laws. I’ve written in the past
about the difference between the South African court’s
treatment of that issue and the treatment it
received at the hands of the United States Supreme Court
in Bowers against Hardwick and even in Lawrence against Texas. I argued that when the Supreme
Court of the United States, that if the Supreme Court
of the United States would get over it’s denial
of our history of slavery, war, and reconstruction,
it might understand our reconstructed constitution
as something with a guarantee of human freedom, with a new
guarantee of citizenship, with an assurance that
citizenship carries privileges and immunities, with newly
encompassing protections for everyone, citizen or
not, to life and liberty, I’m not gonna talk here about property. Much belated guarantee of
equal protection of the laws. This constitution should be understood as a constitution that mandates resistance to supremacist ways. Should it do so, it would be like the South
African Supreme Court, able to interpret the constitution from a position of empathy
with the experience of subordination. I speak of this kind of constitutionalism, some call it reactive,
some call it post-Colonial, with new inspiration of,
just about a year ago, a little less than a year ago. The reason I’m newly inspired
is not so much that things are different but that I’m
newly aware of things, (laughs) I have to tell you. But the new inspiration for me is the unanimous decision of
the highest court of India in the case in which it invalidated what the honorable justice
Dr. D.Y. Shandershud described as a Colonial
law that made it criminal, even for consenting
adults of the same gender, to find fulfillment in love. The justice said this case involves much more than merely
decriminalizing certain conduct which has been prescribed by Colonial law. The case is about an
inspiration to realize constitutional rights. It is about a right which
every human being has to live with dignity, it is
about enabling these citizens to realize the worth of equal citizenship. Above all, our decision will
speak to the transformative power of the constitution, for
it is in the transformation of society that the constitution
seeks to assure the values of a just, humane, and
compassionate existence for all of her citizens. To quote the justice again,
“The goal was to transform a medieval, hierarchical society
into a modern, egalitarian democracy”. What has this got to do with
the child welfare system? I think you can guess. The autonomy and integrity
of minority families in the United States child welfare systems depend upon deeply
contested principles that have explicitly to do with liberty and are grounded in
conceptions of human dignity and human right. Unlike the constitutions
of South Africa and India, and many other nations that see
themselves as post-Colonial, indeed, unlike the overwhelming
majority of nation states on this planet, we have no
constitutional statement of fundamental human rights. Our Bill of Rights is
there, but it’s a statement of protections against the
federal government only. How and whether it protects
against state power, or against citizen suppression,
is highly contested. We have the Bill of Rights
combined with a doctrine of incorporation, a doctrine
that says that some but not all of the rights conferred
in the Bill of Rights were or should be incorporated
into the 14th Amendment, and be binding on both state
and national governments, and we have the language of
the reconstruction amendments themselves, the 13th, 14th, and 15th. And we have the guarantee of a
republican form of government but I put that aside for
purposes of this talk. Reliance on a partially-incorporated
Bill of Rights has limitations, because the
language of the Bill of Rights fails to capture many
rights that seem fundamental to most of us and to most of the world. There is no explicit right
of political representation, or education, or public accommodation, or bodily integrity, or
family, or personal integrity. There is no explicit
right of equal protection. That leaves us with the
language of the reconstruction amendments, which can seem promising. The 13th Amendment promises freedom, in that it forbids
subordination of the human will. The 14th confers citizenship
with all it’s privileges and immunities, it guarantees
to all the equal protection of the law, and it protects
against denials of life, liberty, and yes, property,
without due process of law. The 15th suggests but does not assure a right of representation. In part, because of the
Supreme Court’s early and outrageously narrow
interpretation of the privileges and immunities clause, the
so-called due process clause, which prohibits deprivations
of life, liberty, and property without due process of law,
has been commandeered as the vessel for carrying
fundamental human rights. It is a poor vessel. (laughs) But it has been made to serve. We call the vessel
substantive due process, and it was built, for the most part, in the area of family
and child welfare law. It carries the right of
marriage, or family recognition, the right to procreate or
choose not to procreate, and the right to keep and
socialize one’s children. We are in the midst of
a constitutional crisis over this notion of
substantive due process. For the judiciary is being
flooded with judges who take a dim or narrow view of it. The contest is not binary,
there are many ways of addressing the
incorporation of human rights into constitutional language,
but it’s roughly fair to say that there are two camps. There are those who
would interpret the law in terms of respect for human dignity, and in light of both histories that should never be repeated, and histories of which we are proud and traditions
that should be continued. And there are those that
would interpret the law into terms of the status quo. Those who champion interpretation
in terms of the status quo cling to the principle announced
in the 1997 Gluxburgh case that fundamental rights are
only those rights narrowly defined that have been recognized
as part of the nation’s history and tradition. The history and tradition
camp is gaining ground. Looking only at the top
of the federal judiciary, we see Justice Roberts, who
holds up Dread/Scott v. Sanford as the origin of substantive due process, associating it with the Lochner Era, invalidation of the Louisiana Purchase and protection of the right
to claim fellow human beings as property. Against this discrediting
backdrop, he insists that adherence to, but not lessons
from, history and tradition should be the lode star for
recognition of human rights. Justice Thomas argues that
constitutional liberty is nothing more than freedom
from physical restraint. And he has been a defender
of Gluxburgh’s history and tradition test. Justice Alito emphasizes
the importance of reliance on history and tradition
and bemoans the fact that the Obergifeld
case may have overruled the Gluxburgh test. Justice Gorsach’s views are less clear. Off the bench, he has expressed support for incorporating
respect for human dignity into our constitutional understanding. And he has, to be fair,
questioned reliance on or exclusive reliance
on history and tradition, but he was quick to pen
an alarmingly stingy interpretation of Obergifeld
in one of his first opinions on the Supreme Court. And his comments about
substantive due process in opinions on the circuit level have been notably guarded. Justice Kavanaugh said in
his confirmation hearings that all roads lead to the Gluxburgh test as the test the Supreme
Court has settled on as proper for determining the
scope of individual liberty. And he claimed that even
a first year law student could see that Gluxburgh is
inconsistent with Roe v. Wade, and with case he which upheld Roe v. Wade. These men, and they all are men, (crowd chuckles) stand as a majority that could
easily limit constitutional liberty to the kinds of liberty
that can be protected by allegiance to history and
tradition, narrowly defined. This limitation would protect
sexist, hetero-normative, and white supremacist practices against constitutional attack. It would make it harder
for the family defense bar to bring to light the
perspectives of parents who are judged harshly, merely
because they look different or think sound and behave differently. It would make it harder
for the family defense bar to even sustain itself. We’ve talked about the right to counsel. More broadly, it would
normalize, not only in law, but also in policy and in practice, the paternalism, dare
I say the patriarchy, that leads well-meaning
advocates for children to distrust and disrupt rather
than support viable families. That’s it. (crowd applauds) – Wow. Lot to talk about. Thank you so much. We do want to invite
people to ask questions. If you’d like to use a microphone you can, if you want to just raise
your hand, that works, too. But let’s uh, I see we have
someone that’s ready to go. – [Maya] Hello! My name’s Maya, and
thank you for the panel, thank you for NYU, I’m actually I’m going to date myself, but
I have no problem with that. (laughs) I graduated from
the school social work in ’89 from NYU, and I’ve been in and
out of the social work field primarily in child welfare
and also in the legal system for the past 30 years. So, a little uncomfortable
with the fact that I could’ve sat, I could’ve been over,
this could’ve been the same conversation when I
graduated in ’89, you know, that’s going on here,
and I totally understand that we need to have these
conversations over, and over, and over, and over, and over,
and over, again, so I’m happy for that, but it’s just a
little discerning to me, I’ve hardly been in academia
as much, I pretty much haven’t really been on the academic
setting since like 2003, so it’s a little concerning to me that we’re here where we are right
now, so that’s like the first thing that I just wanted to point out. And then the second thing is that, I think, is it Yvette or is
it Yvonne who’s the person that, the email person,
on coordinating this? So, you know, I said to her when I emailed my response, I said hey, do
we have any see continuing ed for either the social workers
or lawyers, and the question was, the answer was no, so
for me that sort of validates the fact that this is not
an issue, I mean, for me, obviously for me this is very informative, a lot of it is more or less validating, that we’re having this, and you
know, this is an educational setting and the fact that
we couldn’t get any credits for this, not even one credit,
for coming to this symposium says to me that obviously,
it’s not a subject that’s, you know, considered important
and so that’s another issue that I have with this. Because I mean, as NYU is doing this, we should be able to get some credit, because we all know, at
least some of us that are in the field, or going to be in the field, we need to get continuing ed
credits, and the fact that there’s zero here says to
me that it’s not really that important, so that’s another piece that I wanted to point out. – So I would really like
to address that one, because it’s a little more on me. And the point is well-taken,
and next time we’ll try to do that, but I have to say we do set up CLE and continuing
ed for social workers when we feel we need to
do that to draw a crowd, and we just, we knew this panel, I, honestly, that was my thinking, we didn’t need that to get people here. So. – [Maya] On the other flip side–. – It doesn’t mean it
was the right decision, but that was the thinking. But, please, do give your
question for the panel. – [Maya] And the last
thing, I actually work with Children’s Law Center,
in the Bronx office, I was in the Brooklyn office before, I’ve worked for the Legal
Aid Society years ago, Juvenile Rights, and um, you know, in terms of like,
custody, visitation cases versus neglect cases, I mean,
you don’t have to go further, but to just look at the disparity
in those two populations right there in terms of
the longevity of the court and you know, all the
biases we’re talking about, you know, these cases don’t move anywhere, it’s sort of guilty, if you’re in neglect, it’s guilty until you’re proven innocent. You know, um, you know you
get these quick evaluations where in neglect cases
that form peoples’ lives, you know, and all of that,
and then when it comes to a custody case, you know,
the cases are drawn out, you’re waiting for a forensic
and all that other stuff, so, I mean, there’s a whole
lot of issues here, and I appreciate, again, that
this conversation is still going on, and that’s it, thank you. – Thank you. Would you like to react to that? – Well I’ll say something. I’m even older than you,
and I’ve been working in this even longer. (laughs) And um, I began working on issues involving the
criminalization of pregnancy, I see Lynn Paltrow just
walked in just as I said that! (laughs) The punishment of black families, the biological explanations
for social inequality, since I began teaching in 1988, so I’ve seen a lot that
has remained the same, but I’ve also seen a huge
and exciting difference in the movements that are addressing it. I criticize the term
racial disproportionality because I think it’s too narrow, but, when I started
working on Shattered Bonds, that term didn’t exist,
people weren’t even paying attention to the racial disparities. And then, that became
something that at least there was attention being paid
to, but the idea that there were, that there was
a way to connect movements, I just spoke before I came
here with Erin and Lisa, I don’t know if they mind that
I’m mentioning this (laughs). An idea that they have for
an organization that would connect movements, so we’ve
gone from not even paying attention, you know, in
terms of policy makers and other movements that have
not paid attention to this issue, to it being
incorporated more and more, there’s a lot more work
that has to be done, into movements for social
justice that see this, not just as an issue of disparities, but as an issue of
justice, and so much so, that when I say this is
an abolitionist movement, I’m not the only one saying
that, there’s you know, people working on it,
parent organizing has, I know that there were not
organizations of parents when I was, in 2000, that exist now, so there, there wasn’t, I don’t want to say these
struggles and movements didn’t exist at all, but
they weren’t as organized and as influential as they are now. Reproductive justice. That wasn’t a term yet, in 1988. Again, long history of women of color working for reproductive justice, but there wasn’t a term for
it, there wasn’t the amount of organizing going on,
the connections weren’t as vivid as they are now,
and so I think we have to give credit to all the work that people have done for justice in this field that hasn’t been
acknowledged, and who knows where we would’ve been had we
didn’t have this organizing, and that there’s a lot more potential now for it to actually make a radical change, a radical change, that I
certainly did not see in 1988, so uh, I understand the
frustration of hearing the same voices and the same arguments about racism and the child welfare system. But I, I also think that
we have to give credit and acknowledge and be
inspired by all of the work, especially of parents who have
been involved in this system, against all odds, because–. (crowd applauds) There is no, I don’t think
there’s any other system where, if you’re involved in it
and you work for change, it can actually hurt you, you know, like that could be a reason
to take away your rights, and parents who advocate
for change are brave like nothing you’ve ever seen
because they are struggling to be reunited with their
children while they’re being told, if you do this, this may be
the reason you never see your children again, so, I just
want to lift that up as we continue to be frustrated by (laughs) the fact that this, you know, that there hasn’t been enough change. – [Maya] Can I just say one thing, though. I appreciate the fact that there’s so much going on right now, and I
think that’s the paradigm shift that’s really gonna you know, lend some force to this, so, I appreciate it. – [Woman In Floral Shirt]
Hi, thank you for being here. You are very right when
you say that parents who advocate for change are targeted. I consider myself a survivor. My son was unfairly taken from me. From the beginning, I realized
that something was completely wrong with the system, I acted, I reacted, raised my voice, and
yes, they, I mean ACS, and the foster care
agency tried to malign me, to take me down, the
louder I raised my voice, the more they campaigned to
terminate my parental rights, and I’ve completely realized
that this was just an organized campaign to try
to, not only tear me down, I was never in contact with
the system before that. That was the first time I
got into contact with ACS. And like everybody else, you think, okay, this is simple, you come
to the house, you show them everything was fine, and
the opposite happened. To the point, I’m sorry,
what is your name? – Khiara. – Yes. To the point that you were making before, they come into your house
and it feels like they’re finding stuff, they take
your children away from you, not only that, while your
children are in care, they’re finding reasons
to keep your children more and more and more in care,
and people don’t understand why these children stay in
foster care for two, three, four, five, six years, it’s
because they’re building a case against parents. For example, they tried to
say that I had a mental health illness that my doctor had argued against, but they continued and
continued to build that case ’til after five years, the
report came back that there’s completely nothing wrong,
then why was my son in care for five years? I still don’t understand. There is something completely
wrong with the system. I quoted you, Dorothy
Roberts, so many times, and I think I pissed them off. (crowd laughs and applauds) Thank you so much! During the TPR, which is the
Termination of Parental Rights, I quoted you while I was on the stand, the judge looked at me and
said who are you talking about? I said, Dorothy Roberts, she’s a scholar, and they hated me, they
hated the fact that I was an educated and smart black woman, that’s what they hated the most. They hated that I answered to their email, they hated that I
challenged their policies, I challenged their racism, I was outspoken even when my son was in care. I raised my voice and they hated me, and they built a case against me. And right now I’m going to
a reconstruction in my life, because my son is home, but
I have to deal with a child (crowd applauds) who cannot read on grade level,
because for the last five years, no one was
investing in his education. He was put in foster homes
with people who wouldn’t give a crap about him, so now
I have to deal with the fact that my son is seven, and he’s
not reading on grade level, this is what I have to deal with. And I blame the system
for that, and I understand it is programmed so that our
children can’t read and write. That’s just part of the whole cycle. And I thank all of you
for doing this work. Thank you for giving me a voice! (crowd applauds) – That’s hard to follow. (crowd laughs) But I think what I’d like to
do is invite a few more people to make questions and comments
and then get reactions so we can get more voices in here as well. – So I, yeah, hard to follow. Pretty vaguely, but related. For parents who are in the system now, and who are dealing with these cases, often working with them, you have to down to working with
them as a professional, in you know, wanting
to like remain in your professional capacity
and also not advising them to do anything that
is going to hurt them, and knowing that advocating for themselves and organizing can have a negative impact on their case and their ability to unify with their family and
know that this is a system of social control that
really is keeping them busy and keeping them from
collectively organizing, my very difficult question is, what do you tell those
parents because their voices need to be heard for them
to see, for them to be seen as people are not fundamentally
inable, as they are, and even if they have
mental health issues, what do you say to them when
you know that it could hurt them, but you also know that
their voices are the most important voices to hear? – I think we tell them the truth. You tell them that having
a voice can hurt you, and you tell them how that could happen, but it’s up to them,
that’s why I’m talking about dignity and equality. It’s up to these people
to make that choice, and your job is to make
that a well-informed choice. And knowing all the
risks so you can do that. Wonderful question, thank you. – But it’s also our jobs to
not leave it to the parents to do it right, it’s our
jobs to organize outside of um, it’s our jobs to make
a social movement out of this. It’s our jobs to take it to the streets so that parents aren’t
stuck with such like a sort of diabolical choice, right? Like to express, you know,
and to humanize yourself, and to demand that
someone see your dignity, which jeopardizes your ability
to parent your own child, so, I don’t think that it’s
fair for us to leave that to parents to make that choice, and so that’s why everyone
who doesn’t have an open case, that’s why academics
and scholars and people, people who are just concerned about coercing, making this
country live up to the things that it proclaims to hold
dear, the things that are supposed to be, you know,
expressed and protected in our constitution, right? It’s up to us to not leave it to parents to make such a hard choice. – I just wanted to kind
of answer your question, and piggyback on what you said, because the difficulty that I
find as a parent effective is that I work with a lot of professionals and I’m an equal and I’m a professional until I challenge them
with some of the things that they’re not doing correctly. Unfortunately, there’s a
lot of professionals in this field, and we’re do-gooders
as white people, right, we want to save the poor black child that we know historically
has been mistreated and is in a situation that ends today because of the stark trauma and everything that’s happened in this country, but, then at the same time,
but instead of doing this, you become the bad guy because
you’ve gotten against them, too, so I find it hard to have
allies and maintain allies in a way that really makes
sense because I’m being told to redirect what I’m saying, to say it differently, and
I want to say it the way that I see it because
I’m black and I’m proud. I’ve been quieted for too
long, and I don’t want to be quieted anymore,
I want to tell the truth to whomever is misleading my
community or misleading me or not stepping up in a
way that they should be because they want to
maintain their friendships. So everyone’s afraid of the
system, it’s not just parents, it’s attorneys, it’s social
workers, it’s academia, everyone’s being careful,
and I’m tired of it. Do we really want to help
parents tell the truth? Do we really want to help
parents who can’t read, and find them an audio subscription, and read Dr. Robert’s books. (crowd laughs) (crowd applauds) – Angela, why don’t you
go, and then you next. Okay. – [Angela] Hi, thanks
to all of the panelists, and everyone who came out, this is just a wonderful
learning experience and I heard the word
‘abolition’ a couple of times, and I was just wondering if
there’s more that any of you could share about what that
concept means as applied to the child welfare system in a practical, as a practical matter? – Well, I think I used it a couple times, so I’ll speak up. I think that the idea of
abolishing an unjust system has been applied probably in the US mostly to the prison system. And uh, there’s a
literature on it, you know, Angela Davis has been very
outspoken and has written books about it, and there’s
organizations that are prison abolitionist organizations. My understanding of what that means, and I think people have
different kinds of ideas of what abolition means, is that, it’s in contrast to reform. It’s in contrast to thinking
that a system is basically a good one but has some problems. That it was designed for
a good social purpose. But it sometimes works
erroneously, harms people, instead of thinking that the system itself was designed to be unjust, to
control and police and punish and marginalize whole groups
of people and therefore, it’s not enough to reform
it, sometimes it just makes it work better, you know,
better at harming people. What you have to do is abolish it, in the sense that the
entire philosophy of it, the entire way it’s been
setup, the entire structure needs to end and something
different, something radically different, needs to take its place. That’s not as if, you know,
we’re going to tear it down today and then put in
a new regime tomorrow, because realistically,
we can’t just abolish, we don’t have the power,
those of us who don’t, who think it’s an unjust
system, to just tear it down, and we also have, are still
working on even imagining how we would deal with
social harms, for example, in a way that doesn’t involve
locking people up in cells. So, neither aspect of it
can happen right away. They both have to happen
simultaneously, but to me, it makes a difference in
how you even think about what our work is. You know, you think about
what, what is it we need to do to abolish this system, and
how important it is to be envisioning something radically different. So, what’s wrong with
the system fundamentally, and so now how could we envision
a society that deals with people’s needs and deals with
the way people harm each other in a different way? And I think that way of
thinking should be applied to the child welfare system, also. Again, if we think that
it’s not a system that’s fundamentally designed to help people, you know, that it’s
fundamentally designed, you know, as you were describing it,
to tear families apart, to pretend as if the reason
why children are disadvantaged in this country is
because of their parents, not because of structural inequalities, that the way it’s designed
to, in so many ways, prevent social change. In the way it keeps individuals
from advocating for change but also in the way it
convinces a majority of people that there’s no need for change. All you have to do is
take the children away from bad parents and we’ll
have less crime in America, we’ll have less poverty in America, no! That’s not true that’s not the reason! And in fact, as you pointed out, it leads to miseducation, it
leads to locking up children, not because the children
were predisposed to it before they got in, but because the
system itself calls police on them when they run away. The system itself lets them
age out without any resources. The system itself traumatizes
them, so they may turn to drugs, you know, to self
medicate because of the trauma they’ve been through. So how do we then, so if we
understand it as a fundamentally harmful system, it’s not just
about tweaking the mechanisms of it to make it work better,
it’s about eliminating the entire system. But just like with prisons,
it’s not going to happen right away, there’s so
much money invested in it, there’s so much ideology invested in it, and so many people rely on it,
in order to meet their needs because that’s how it was set up. I did a little study in Woodlawn
where I was trying to point out by interviewing black
mothers there, that everyone was involved in some way in the system, they call it the system because
that’s what it, you know, that’s what everybody knew
what it was, it was the system. And I thought that they would,
after they had told me how it disrupted their families,
all the harm it caused, I thought that, my last
question was, well is there too much child welfare agency
involvement in Woodlawn, it was Woodlawn in Chicago, too little or just the right amount? I though they’d say, too
much, get it outta here. No, the majority said there’s not enough, because it’s the only
way that we get benefits to take care of our relatives,
through kinship care. It’s the only way that we get cribs, or you know,
whatever little pittance that the government is giving because Tanith had been, you
know, has deadlines to it, and it doesn’t even
give you as much money. So, right now, if you
just, we couldn’t do it, although I have to say,
I’m convinced that families would be better off without it at all, but I’m expressing what
these women said to me was, we are relying on it, like
you said, it’s diabolical, it’s pathological that
people are forced to rely on a system that they see is harming them. That’s, that’s the kind of
system that we need to abolish altogether, so that’s, but again, thinking of our work as abolitionist work, it will change, I think the
kinds of policy changes we wanna see, it will change the kind
of organizing we wanna do, and it will also mean that
we have to think about, okay, what do we put in it’s place
in order to support families. And so that’s how, I don’t
see the person who asked the question anymore, but
that’s how I, oh okay, there you are! (laughs) Hi, oh that’s right, I
forgot you had asked that. Um, that’s what, that’s an overview, and what does it mean practically? I think we have to work on it, I mean, it’s a brand new idea. Relatively brand new idea. Work on what would that actually mean in terms of concrete advocacy and policy change and organizing. – I just wanna add a little
piece, just like two seconds. The distinction between
reform minded and abolitionist minded, I’m reminded of a scholar, and I won’t say her name, I’m just gonna, it’s like saying Voldemort. (crowd laughs) But she, she says there’s
racial disproportionality in the child welfare
system, well the answer is to get more white kinds in there. That’s the problem, right? So, so, that’s the difference,
like tweaking it, right? So for her tweaking it so that
it works better means that white kids are being excluded
now, so we need to include white kids in the system. And so abolitionist-minded
thought is like, there’s something wrong with the system, it’s being disproportionate,
it’s being terribly destructive to black
families, but it won’t be terribly destructive to all
families, white families included, so we need to
get rid of the whole thing, imagine, dream up something else. – Her next, then me, then
we’ll move the mic around. – [Woman] Yeah, just back to
the parent organizing question. So I understand organizing
is a pivotal part of any sort of policy change,
but it’s also difficult to organize when you’re in
crisis mode and you’re a parent, your children are being
taken away, you’re not moved to think about societal
or structural change. But once that may be
resolved, you’re probably too traumatized to even engage
with that system again, engage with any of those attorneys. So my question is, how do
we put the onus back on the attorneys to create
structures for long-term parent engagement and
organizing after the moment of crisis is resolved? – We could probably ask
the parent organizers about that one. I mean, that seriously is one, is one way to think about
it is that we should be supporting parent organizers,
and that’s not to say that we, you know, those
who aren’t parents who have been involved in the system,
or are currently involved, shouldn’t be doing anything,
but I think we should be thinking about parents who
are organizing as leaders of the, you know, again, not to say, putting the burden on
parents to do all the work of organizing, but also
not thinking of them as people who are in any way
less capable of organizing, so to me, what should we do? I would ask, what can we do? What would help? What would help? And share the different
kinds of knowledges that we have of how to transform
the way child welfare is treated in this country at present. – Yeah, I also think it’s
about listening and respect, and um, I take heart in
the fact that now we have representation groups that
hire parents who’ve been in the system, and think
of them as professionals. Now I hear you when you say
that they don’t always hear you. And they don’t always
regard you as professionals, but that’s the right path. The right path is to encourage people who have been through this
to take a professional role in fighting it. – And I would just, I actually had in mind like
people who have had no direct contact with the system feeling as if it’s a moral obligation to be disgusted by the system and
to be parts of movements, or to organize movements
themselves to challenge the system. So for example, when the
Trump administration began separating families at the border, people who have never had their family, like people who were surprised, oh my god, the government would do that, right? Facebook, Twitter, right,
folks who had no direct contact with state power as
violent and illegitimate as that felt themselves
personally effected by it. Again, folks who were not
poor, not people of color, went to marches, families
belong together, right? So that’s, that the type
of empathy I would think I would like to see develop. I would like to see an empathy develop. There are more parents
than non-parents, probably, among adults. I want to see people,
their identity as a mother, their identity as their father, feel themselves compelled to get involved in any sort of movement
that is developing, because they know how terrible it would be to have their child taken
away, and they want to stop other families from having
their children taken away. So, you know, I see this as a, it’s about recognizing inhumanity, recognizing a state that would deny the dignity of individuals,
it’s about coercing, forcing our government
to live up to the things it proclaims to represent
in its constitution, and then, you know, so
we’re not leaving the onus on people who are directly effected by the system to do something. – [Other Woman] Hi. Thanks so much for this panel. All day long, I was
looking at this weather and was wondering why I’d ever
left Berkeley, California. (crowd laughs) And now I know why I’m
here, so that’s great. I want to just go back to a
point that Khiara just made, like that we need to build
empathy by bringing in people, even people who are not directly effected. And I guess, I would
just like to challenge, I don’t know that there’s
anyone that’s not effected by the child welfare system. I mean, the whole point of a
system, of a punitive system, of discipline is not just
to discipline those who are directly effected by it,
but to indirectly discipline those who are outside of it. And I don’t think you can be a parent, certainly a parent of color,
regardless of class privilege in the world, and not
feel the psychic toll of the child welfare system in your life. Like if I have a child who gets a bruise and they’re going to
the doctor the next day, I mean, we have a story, because I worry. And I think there are
lots of parents who worry, and now you hear about
parents who advocate free range kids and suddenly
they find themselves in a situation where
they’re being investigated. I think those are the kinds of connections and opportunities for
allies to really show that there are people who are
directly and traumatically effected by this, and I thank
you for telling your story. But this system exerts a
toll on everyone who parents, and like, you cannot parent outside of it. And that’s the point, I think, of it. And Peggy, thank you for
connecting all of the dots, like bringing us into this
historical conversation and thinking about it across systems. We have not really thought
about what we’ve been doing in the United States and how
these things exert a push and a pull, like for the
last ten years, we have been almost unduly focused on the
fight for same sex marriage, which was an important fight for equality, but even as we expand marriages, hegemony, we do so at the expense
of calling into question the lives of individuals who
live outside of marriage, and to sort of pathologize
that, and that feeds into that whole crisis, as well,
so I think we need to think more systematically as
this conversation has done about all of the different
pulls and levers that are working to create a system
where we are constantly disciplining people all of the time. (crowd applauds) – I think we have time for maybe two more. – [Woman In Black Shirt] Thank you, I enjoyed this very much, thank you all. I wanted to get practical about abolition, and I wanted to bring up the
fact that we have hotlines that call for everyone to report
everything about everybody and that are built on a
complete lack of understanding of what real abuse is,
what real neglect is, and that it really authorized
what you’re talking about in terms of the demonization
of poverty, the demonization of mothers, the demonization of people and are built on, you know, that encourage this coercive interaction,
and we could abolish hotlines, we could abolish registers,
we could abolish the practices that are causing the
separation of families, and that’s not hard to
reimagine, that’s actually something that we can do
as lawyers and as advocates and as families, though
so, I wanted to suggest that there are practical
ways to abolish this system. – Yeah! I think when we start to
think about abolition, and the steps we could take
toward total abolition, one way to think about
it, what can I do today that would be a step toward abolition? That’s, that’s a great example. And in fact, one way we
know we could abolish it is, we know that there were
laws passed creating these systems, and that
laws are being passed to expand, you know,
the mandated reporters. And after the Jerry Sandusky,
am I saying the right name? The Penn State, um, including
people at the University of Pennsylvania law school
advocated in Harrisburg for these laws that now
expand who has the duty to report child abuse and neglect. So we’ve seen laws that have expanded it. We can also then advocate
for laws that curtail it. And one example, this is,
well it’s related to the child welfare system in the, in the, related to abolishing prisons is just advocating for an
end to bail, for example. The bail system that locks
up people just because they don’t have enough money for bail. Or even more practically,
donate lots of money to bail funds that are
about releasing people from jail, so maybe we can’t
abolish prison tomorrow, but we can help to release
people from prison today. I think of that as a step
toward prison abolition. So uh, yeah, let’s think about
concrete steps we can take to chip away, not to reform,
but to actually chip away at this system to break
it down, to dismantle it, and I think that’s a great
way to think about how to move toward abolition. – [Third Woman] Hi. In the last um, couple of years or so, I’ve heard of more black
families beginning to file lawsuits against this system. So is that where there’s teeth at? Is standing behind families
actually suing the system, class action lawsuits and such? – I think that um–. I think we have to, it’s one tool. I don’t think it’s going
to be the only tool or even the main one that’s
going to dismantle the system, but it does bring attention
to racism in the system. I am not aware of a successful lawsuit, maybe some others are, I’ve
heard of class action lawsuits. There’s one that was in the news recently, by a father in Minnesota who
is claiming violation of his rights by the state
removal of his children. And uh, even in Shattered
Bonds, I wrote about a lawsuit that was filed in Chicago
claiming racial discrimination as a, you know, by a whole class. I think there was one in
New York at one point, maybe in the 1990’s as well? I’m, I don’t, because of the way in which
race discrimination is treated by the courts, in other
words, in one of the cases, you have to prove that, you know, if you were not black, your
child would not have been taken away from you, so then, the state just says, well
here are all the reasons, here’s what’s wrong with this parent, and therefore, there’s no
evidence of racial discrimination, and instead of looking at
it as a political issue, and looking at the ways
in which black communities as a whole are being effected by this, not basing it on the individual guilt or innocence of a person. I compare that also to arguments
about race discrimination in criminal justice, like
McClusky versus Kemp, the case against the death penalty. Lots of evidence that the death
penalty is racially-biased and they showed all this
evidence that black people, especially if they’re accused of killing, or convicted of killing a white person, are many times more likely
to be sentenced to death. What did the court say? Well the court said well,
McClusky’s guilty, so, there’s no discrimination here. – [Man] We live in the United States. – Exactly! I mean, that’s one of my favorites. I think one of the most honest statements in an opinion, I think
it was Brennan who said, it was either Blackman
or Brennan who said, who dissented and said,
this is all about a fear of too much justice,
because the majority opinion said, if we grant this we are going to have to deny,
find racial discrimination in every aspect of the
criminal justice system, and then we’ll have to abolish it, right? (crowd laughs) But think about that. That brings to public attention that that actually is
the reality of what would have to happen if courts
really dealt with racial discrimination in, you know,
in education, in child welfare, in the prison system, they
would have to abolish the whole system because it’s racist
through and through. And even if you’re not going
to win under the current juris prudence, you know,
it might be a way to push it to change, although,
as you pointed out, Peggy, that this current (laughs), yeah, it’s probably not going to work, but, part of the movement is to, is to make people understand this. Most people in America think
the child welfare system is a system to help, to save
children, I think, I think. And I think that’s part of
why this organizing is so difficult, and the more,
whether it’s through lawsuits, whether it’s through
legislation, whether it’s through rallies, whatever to get
people to see what it really is about, I think the more likely
we are to get the changes that we’ve been talking about. – I have one thing to add. I’m sorry. – No, go ahead. – Is that um, it doesn’t have
to be a suit that’s about racial discrimination. So, class actions in New York, of course, that were suits about
taking kids away because, from mothers because the mother’s partner had abused the mother, have great impact, it’s extraordinary impact, really. So you can kind of work around
the issue and help people. – I would like to give
Khiara the last word, but I just wanted to fit
in, if you’ll let me. – No I don’t want the last word! (crowd laughs) – But I do want to let people know, because the issue of state
central registries came up, Joyce McMillan, one of the
parent organizers that you heard from tonight, is uh, leading a charge on changing
the state central registry in New York and anyone who’s
interested in hearing about that, I’m sure Joyce would
be happy to talk to you about that once we break to the reception. – I just wanted to add a
little point about the function of suits, and I wanted to tie
it back to Professor Melissa Murray’s point, Obergifeld
didn’t just happen one day. Like the court didn’t just
say one day, you know what, let me recognize the dignity and humanity of same sex couples, right? Like, it was a long process,
it was a long process in which law played a
role, but law played a role in catalyzing cultural
change, which played a role in changing the law, which
played a role in cultural change, which played a role until
we got to Obergifeld just a couple of years ago. So I think that suits, even
thought we might not be successful today, right, if we challenge the child welfare system it might be a losing argument today, but you know, in 10, 15
years, we’re fighting for our children’s, you know, we’re
fighting for our children’s children, so there is
a role for litigation. – A great note to end on,
though we really hope it’s not the end; we do want to invite
you to stay and continue the conversation, but first,
please do help me thank these three wonderful
girls for getting us here. (crowd applauds)

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