A MN Law Unconstitutionally Limits Foster Care Removals of Black Kids, But Not White Kids

A 2024 Minnesota law discriminates based on race by making it harder for black kids to be placed in foster care in cases of parental neglect and abuse, and harder for them to be adopted by loving families. It requires social services to make “active efforts” to prevent “out-of-home placement” of “African American and disproportionately represented children.” When black kids are removed due to parental neglect or non-certain kinds of abuse, social services must make “active efforts” to reunify children with the parents. By contrast, only reasonable efforts, not active efforts, need to be made to preserve white kids’ families in such cases. As the Minnesota law explains, “Active efforts sets a higher standard for the responsible social services agency than reasonable efforts to preserve the child’s family, prevent the child’s out-of-home placement, and reunify the child with the child’s family.”

So Minnesota’s law racially discriminates on its face. It’s called the Minnesota African American Family Preservation Child Welfare Disproportionality Act (MAAFPCWDA).

Minnesota’s law is modeled on the controversial Indian Child Welfare Act (ICWA), which Congress enacted to prevent American Indian children from removal from their tribes to be adopted by non-Indians. Child welfare officials and guardian ad litems have complained that ICWA makes it harder to protect neglected or abused children.

But the Minnesota law lacks ICWA’s constitutional basis. ICWA is not considered racially discriminatory by the courts, because tribal membership is considered a political classification, not a racial classification, according to the Supreme Court’s decision in Morton v. Mancari (1974). That decision upheld certain preferences for Indians contained in federal law.