Opinion | New Minnesota law gambles on child safety

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Early in December, a Hennepin County Court struck down as unconstitutional an early rollout of a 2024 law. The law seeks to keep families together by making it harder to remove “African American and other disproportionately represented” children from homes where they are at risk of abuse or neglect. This includes families living in poverty, who are often overrepresented among children in the foster care system. As reported in the Minnesota Star Tribune, the ruling was somewhat surprising and has limited legal impact. But it gives Minnesotans a chance to re-examine and reconsider broader concerns with a policy shift that appears to be well-meaning but could actually endanger children.

On Dec. 3, Hennepin County District Judge Matthew Frank ruled that the limited phase-in of the Minnesota African American Family Preservation and Child Welfare Disproportionality Act, which the state Department of Children, Youth, and Families set up in Hennepin and Ramsey counties, violates equal protection laws by “treating some families as test cases while excluding other families from services and protections provided by statute, based on race, and the randomness of geography and timing.”

Those constitutional flaws may vanish when the law is fully implemented come January 2027. At its full implementation, the law will expand its “services and protections” to families of any race across the state. Still, Frank’s ruling suggests that there may be inherent constitutional problems with the underlying goal of the law: to treat families differently, based largely on race, in part to reduce racial disparities in removal rates and achieve a certain demographic balance in the foster care system.

Whatever the legal fate of the act, concerns about its wisdom as policy deserve more careful consideration. Ultimately, the logic of the act stands only if we assume that racial disparities in foster care placement are caused entirely by the biases of social service workers and others in the child welfare system. But what if that’s not the case? What if the disparities also arise because children in different communities, for various complex reasons, simply face different levels of danger?

This possibility highlights a fundamental challenge in data analysis known as “omitted variable bias.” Two variables, like race and foster care placement, may move in the same direction without one causing the other. Failure to account for other “omitted” variables driving that relationship can lead to flawed policy. So, while the goal of preventing the unnecessary removal of children from their homes is commendable, insisting on equal rates among racial and other groups could require decisionmakers to ignore the very circumstances that put children at risk.

The study also found that Black caseworkers were “more likely to rate Black children at subjectively higher risk of harm than white children” and “more likely to substantiate Black families for maltreatment.” The findings suggest, as the authors conclude, that policymakers could achieve better results by addressing risks that increase maltreatment among Black children. This recommendation was backed by a 2023 Washington University study, which found that Black children were reported to Child Protection Services (CPS) at lower rates relative to their exposure to negative outcomes such as child maltreatment fatalities.

Highlighting a different concern, a 2024 study in the Quarterly Journal of Economics analyzed administrative data from the Michigan CPS system, finding that among children who were at risk of future maltreatment, Black children indeed were more likely to be placed in the foster care system compared to white children. However, this gap was explained by the “under-placement” of white children as opposed to the “over-placement” of Black children. Consequently, making it harder to place Black children in the foster care system could “harm Black children by keeping them in risky home environments.”

Every child deserves to be protected, regardless of race, gender, income status, disability or any other consideration. The hard truth that is often missed is that protecting children is not the same as protecting the adults in their lives from scrutiny. Some parents and other caregivers are at least temporarily unable to keep children safe. And in those cases, the broader community must step in.

In a rush to remedy historic inequities by reducing foster care placements, Minnesota’s new law collides with the best interests of the very children it seeks to help. This is a gamble where the most vulnerable among us run all the risk.