Restoring Equipoise to Child Welfare

Rebecca Aviel

Volume 62, Issue 2, 401-456

Since the Supreme Court’s widely criticized decision in DeShaney v. Winnebago County Department of Social Services, the principle that the Constitution affords no relief for a social worker’s failure to prevent harm to a child has been described as a “staple of our constitutional law.” Whatever might be said about this principle on its own terms, it produces very troubling incentives for social workers, who may still face constitutional tort liability when they act affirmatively to intervene in troubled families—the unjustified removal of a child from her parents’ custody, after all, is the sort of infringement proscribed by our Constitution’s charter of negative liberties. This Article is the first to argue that this imbalance should be taken into account in determining the level of immunity to which social workers ought to be entitled when their conduct is challenged in federal court. In a world where social workers cannot be held liable in federal court for leaving an endangered child in the care of her parents, it is unacceptable to allow social workers to face liability for wrongfully removing a child from a dangerous home. In this Article, I offer a reluctant defense of absolute immunity for social workers initiating child dependency proceedings, arguing that such immunity can correct a perilous imbalance.

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