Judge strikes down rollout of Minnesota law aimed at protecting Black families

The future of landmark legislation aimed at correcting racism in Minnesota’s child protection system has been thrown into jeopardy over questions of its constitutionality.

Earlier this month, Hennepin County Judge Matthew Frank struck down the rollout of the Minnesota African American Family Preservation and Child Welfare Disproportionality Act [MAAFPA] because it created a raced-based government policy in violation of the 14th Amendment.

The decision is a surprise setback for advocates who argued for years that Minnesota courts separate African American children from their families at wildly disproportionate rates.

Those advocates had celebrated the launch of MAAFPA, which passed in 2024 with broad bipartisan support, as a monumental victory for establishing higher standards “to prevent the arbitrary and unnecessary removal of African American and disproportionately represented children from their families.”

While the law is still set to go statewide in 2027, attorney Scotty Duscharme, who specializes in child protection and family law, said Frank’s order has cast a pall of uncertainty over MAAFPA and its future.

“No one asked Frank to find the entire act unconstitutional.” Duscharme said. “But if you read up in his memorandum and his footnotes, he says this is discrimination based on a suspect class: race.”

Kelis Houston, who fought for MAAFPA for more than a decade as an advocate for families, released a statement calling on Attorney General Keith Ellison and Hennepin County Attorney Mary Moriarty — “vocal supporters of the bill” — to appeal Frank’s order.

In 2022, the American Bar Association undertook an assessment of racism in the child welfare system in Hennepin County. It found 83% of cases and 81% of out of home placements involved children of color. The 2020 Census showed Hennepin County was 66% white.

That empirical evidence reinforced what advocates in Minnesota’s child welfare system had been saying for years: African American families were far more likely to be investigated over child protection concerns and have parents separated from children.

MAAFPA sought to address this by requiring social service agencies in the state to provide “active efforts” to preserve the families of African American children and other children identified as overrepresented in the welfare system because of “race, culture, ethnicity, disability status or low-income socioeconomic status.”

The phrase “active efforts” creates a higher legal standard than the “reasonable efforts” in Minnesota’s other child protection cases. The law also requires social services to act in the best interest of these children by providing a “culturally informed practice lens that acknowledges, utilizes, and embraces the African American or disproportionately represented child’s community and cultural norms.”

Removing a child from a home requires higher scrutiny and can only happen if the child is under life threatening “imminent physical danger or harm.”

Because of the scope of the law, the Legislature decided to start MAAFPA in just Hennepin and Ramsey Counties with a $5 million grant. The initial rollout covered 30% of all new child protection cases involving African Americans and American Indians not protected by the Indian Child Welfare Act.

Until Frank shut it down, the rollout was set to hit full capacity in those two counties by Oct. 2026 in the hopes of establishing best practices before going statewide.

In his ruling, Frank wrote that while the Legislature and Department of Children, Youth and Families “had the best intentions” in creating the law and phasing in its rollout, he had to shut it down because there was no constitutional argument for granting legal protections to a percentage of the population based on race.

And though his decision was limited to the legality of the rollout, Frank also signaled that the overall law could be vulnerable to a challenge, writing that MAAFPA in its totality “involves a fundamental right and creates a suspect class” based on race.

Senate President Bobby Joe Champion, who helped craft and shepherd the bill alongside Rep. Esther Agbaje, said the scope of Frank’s judicial order was an overstep.

Champion said lawmakers worked to make sure the law could survive legal challenges — including adding parameters around “disproportionately represented children” that were not based strictly on race.

“I do want it to continue,” he said. “I do want us to have to do the very thing we have neglected to do for so long, which is challenge this system.”

Yet University of Minnesota constitutional law professor Jill Hasday said Frank’s opinion was legally sound and that MAAFPA is the kind of legislative act that invites constitutional challenges.

“Minnesota appears to be applying different procedures for African American children and Native American children who aren’t covered by the Indian Child Welfare Act, then it applies to children of other races,” she said. “That is an explicit race-based distinction and explicit raced-based distinctions are almost always unconstitutional.”

She said the Supreme Court has been largely indifferent on whether a race-based law is “malignant or benign.”

Frank’s ruling came after three attorneys in Hennepin County Adult Representative Services argued their client — an African American mother of two who was separated from her children — should be protected by the law but had not been selected as part of the initial 30% phased rollout.

They filed a petition arguing her lack of inclusion raised constitutional concerns and asked Frank to expand the rollout of MAAFPA to include their client and all other similarly situated clients. Instead, Frank shutdown the rollout.

“They took a gamble,” Champion said of the attorneys.

The case was emblematic of the heavily scrutinized, deeply personal nature of child protection cases.

The mother’s older child had already been taken out of her home because the child’s father, a white man, had been convicted of sexually assaulting a 7-year-old and possession of child pornography.

The mother, who was well liked as a daycare provider and had no criminal record, was placed under the oversight of social services and given supervised visitations.

In October, her attorneys sought a remedy through MAAFPA. In a memorandum of law, they argued Hennepin County was selectively deciding which 30% of cases received legal protection during the rollout.

“There is no publicly available data on selection criteria and how or why certain African American families are chosen over others,” her attorneys wrote, arguing the rollout was “based on a quota that is met by unarticulated means” and that was discriminatory.

They said their client was “part of the long line of African American people who have suffered” in child protection cases in Hennepin County and that “her children have been removed from her are and placed in the care of a white foster parent who has no relation.”

In other words, they argued, she was treated differently by sheer bad luck because she wasn’t part of the 30% covered by MAAFPA during the rollout.

“This the court cannot do,” Frank wrote.

He said the rollout of the law was legally flawed. “Now it is up to the legislature to fix it.”

Hennepin County Human Services said in a statement they remain “committed to disparity elimination and to the specialized needs of each family in our child welfare system“ and are “evaluating how to move forward” in the wake of Frank’s order.

Meanwhile, the mother remains separated from her children, despite her attorneys claiming she is a “safe and loving caregiver” who recently completed four weeks of unsupervised visits with her kids.

One day after Frank released his order, Children’s Services filed their latest report on how the mother was doing with her children. It contained a litany of concerns, including the mother’s ability to handle diaper rash, to burp her children, to follow feeding schedules, to write things down in a timely fashion, to mix formula, to prevent bruises and cuts, to clean up near her birdcage, to keep blankets out of her baby’s crib, to wake her baby on time and communicate well with the county.