Vol. 10 No. 7 (July 2000) pp. 398-401.

PITIFUL PLAINTIFFS: CHILD WELFARE LITIGATION AND THE FEDERAL COURTS by Susan Gluck Mezey. Pittsburgh: The University of Pittsburgh Press. 272 pp.

Reviewed by Bradley C. Canon, Department of Political Science, University of Kentucky.

Do federal courts have the capability to reshape state institutional practices well enough to achieve broad policy goals? This question has been debated by judicial scholars and others for the last 30 years when the courts began hearing cases challenging segregated schools, abusive prison practices, and indifferent state mental hospitals. Researchers such as Donald Horowitz (1977) and Gerald Rosenberg (1991) have made the case that courts lack the capability for implementing serious institutional or social reform and often create more problems than they solve when they try. On the other side, scholars such as Stuart Scheingold (1974) and Michael McCann (1994) have argued that court decrees have often been reasonably effective in achieving reforms. Even now, the debate goes on (see Schultz 1998).

In PITIFUL PLAINTIFFS Susan Gluck Mezey focuses on judicial intervention in another state institution, child welfare agencies. As illegitimacy and drug use rose and families came apart more easily over the last 40 years, the number of children referred to these agencies increased dramatically, especially in urban areas. Caseloads and backlogs grew while investigations and supervision declined. Children were left too long with abusive parents or relatives (or placed back with them), shifted from foster parents to foster parents without any stability, or as teenagers would live virtually alone in poverty and filth The first legal challenges to child welfare agency failures in the 1970s were greeted with some incredulity by the courts, but by the 1980s district courts were accepting arguments that the 14th amendment's due process clause and Section 1983, permitting suits against state officials who deprived citizens of their rights, allowed judges to impose some control on these agencies when they had legal custody of children. By 1996, child welfare agencies in nearly half the states were operating under some form of federal court supervision.

PITIFUL PLAINTIFFS is a case study of one such lawsuit: B. H. v. JOHNSON. It was a class action suit on behalf of 20,000 children filed in 1988 in the Northern District of Illinois. It was settled by consent decree three and a half years later. At that time, Illinois had a proportionally higher number of children in its system than did any other jurisdiction except the District of Columbia and its proportion grew faster than any other urban state over the next five years. So, Illinois makes an excellent case study locale. Besides immersing herself in public and private documentary records, Mezey interviewed 57 persons involved with B. H. or similar cases, including all the key players. Although hardly a landmark case in the annals of child welfare law, B. H.

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significantly impacted the formal policies of the Illinois Department of Child and Family Services (DCFS). How the court did this is a main focus of her investigation.

The book has eight chapters. Chapter One discusses the debate and research on the empirical question of judicial capacity to change public policy that is administered through public institutions, especially large bureaucratic ones? Chapter Two looks at how America's child welfare system became overburdened, underfunded and generally inefficient over the last 40 years. Abuse and neglect became more common, or at least more visible, and horror stories in the media fed public and legislative mistrust of child welfare agencies' competence. Beginning in 1974, Congress passed several acts to reimburse and otherwise assist states in coping, but these did not seem to augment the agencies' capacity to handle the problem.

Mezey's study is guided by a version of Cooper's (1988) phases model for analyzing judicial policy making. Chapters Three through Seven each deal with one phase. The Stimulus Phase is first. The three main stimuli (besides the more global factors discussed above) were: (1) the rise of a children's bar in Chicago among lawyers with the Cook County Public Guardian's Office and the ACLU; (2) several partly successful federal challenges to child welfare policies and practices in other state; and (3) adverse publicity for Illinois DCFS policies in the CHICAGO TRIBUNE and other media. Following the usual syndrome, children's bar activists turned to the courts after finding that they could not improve their clients' conditions materially through negotiation with the agency or by appeal to the legislature.

Next comes the Accountability Phase. B. H. proffered a relatively novel legal theory of substantive due process under the 14th amendment that had no controlling precedent at either the Supreme Court or Seventh Circuit levels. Its theory challenged traditional doctrines of federalism and state fiscal autonomy as well as the prevailing view that states have no constitutional duty to secure minimum living conditions for their citizens. The suit was also based on the premise that private plaintiffs (in addition to the Department of Justice) could challenge agency practices that violate federal child welfare assistance laws. This was an unclear legal basis for the challenge, and the U. S. Supreme Court eventually rejected it in another Illinois case. Even worse, after B. H. was filed but before any preliminary rulings, the Supreme Court specifically held in DESHANEY v. WINNEBAGO COUNTY DEPT. OF SOCIAL SERVICES (1989) that states had no constitutional duty to protect children not directly in their care. Thus, the major challenge for B. H.'s lawyers was to survive the state's motion to dismiss. Fortunately, Judge John Grady held that the deprivations of plaintiffs welfare was significant enough to override considerations of state autonomy and that Section 1983 authorized suits for violation of children's rights provided in Congressional child welfare programs. Thus, he held that DCFS was accountable for its actions (or inactions). In so doing, Grady signed up for a decade long commitment to oversee the agency.

Chapter Five describes the Adjudication Phase. Initially DCFS opposed the plaintiffs on every front, but by 1990 four things led the agency to enter negotiations for a settlement. First, rulings in other federal district courts were running strongly against child welfare agencies and Judge Grady signed on to this trend by

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distinguishing DESHANEY from B. H. because the Illinois plaintiffs were at least nominally in state custody. Second, the judge actively encouraged the parties to settle. Third, several other related but narrower suits were filed against DCFS and it looked like a long decade of contentious and negative-imaging litigation for the agency if it did not settle. Finally, a change in DCFS directors in 1990 altered the agency's attitude. So late in 1991, Judge Grady issued a consent decree largely based upon recommendations of a panel of experts. It provided a "Bill of Rights" for children and system wide reforms to insure compliance.

As one of Mezey's interviewees said, "it was easy to get a decree, hard to implement it" (p. 108). The Implementation Phase did not flow smoothly from the Adjudication Phase. This was so even though a major prerequisite for implementation was established; the state, without any court order, increased agency appropriations by around 20 percent every year in the first half of the 1990s -- a far, far greater increase than any other state agency received. However, the caseload also increased rapidly: from 43,000 cases in the year of the decree to 66,000 three years later. More important, the DCFS suffered from revolving door leadership that was not very effective in reshaping the agency's indifferent culture. Moreover, despite plaintiffs' frequent motions, Judge Grady did not turn the screws too much. He was aware of the agency's inherent problems and reluctant to push it too far, although he did act at times. Relationships between the plaintiffs, the court appointed monitor and agency personnel deteriorated.

Chapter Seven covers the Response Phase. This is not a chronological phase, but rather it focuses on external actors' reactions throughout the process. Matters such as legislative resentment against DCFS's disproportionate share of state revenue increases and media accounts of DCFS failings are covered here.

The last chapter is both a follow up and an analysis of the court's policy making effectiveness. By the late 1990s agency performance improved significantly. In 1997, for example, DCFS the caseload ratio fell to the levels permitted in the consent decree. This occurred partly because of a reduced caseload stemming from declines in illegitimacy and unemployment and partly because of new DCFS adaptations to implementing the decree, such as "subsidized guardianships" whereby relatives were paid to care for children.

Unfortunately, the study does not make clear how and to what extent B. H. contributed to improving the agency operations. The weakest part of the study is that there is little analysis of this rapid turn around. Mezey concludes, perhaps going beyond the evidence discussed in the book that, "while it may be extravagant to attribute all the positive changes within the system to B. H., there is little doubt that the suit played a significant role in sparking the reforms." (p. 161) Certainly so, but some greater degree of precision would be welcome.

I had a slight feeling of theoretical incompleteness after reading PITIFUL PLAINTIFFS. I never obtained a good sense of how the study of B. H. fit into the larger literature on judicial policy making competence. In part, this is because the B. H. situation is too complex to allow clear conclusions, but it also reflects a failure to link the study very closely with the theories and arguments about judicial competence. Also, Mezey takes a legal and statistical approach

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and focuses on leadership decisions. Authors cannot concentrate on everything, but there is a price to pay: we learn little about the "bleak and Dickensian" (to quote from the complaint) lives of the pitiful plaintiffs or about the attitudes and behavior of agency caseworkers who dominate DCFS culture.

These reservations aside, I believe Mezey has produced an excellent case study. PITIFUL PLAINTIFFS is a rich and detailed analysis of a federal district court effort to reform state institutional policies in an era when these courts are doing this with some frequency. Her work carefully brings together the complex interactions between the actors, the legal doctrines, the social problems, and the political considerations that go into making public policy. We gain much insight into the obstacles, negotiations, actual problems and external pressures that shape the practical impact of a judicial policy.

Indeed, desegregation aside, there are few studies of the impact of such federal district court decisions. Those that exist largely appear in journal articles or book chapters. Thus PITIFUL PLAINTIFFS lays out one of the most thorough analyses of the ins and outs of policy making by the federal courts. This study is also different because it examines how courts affect a bureaucratic agency, not an physical institution such as a prison or school where monitoring can be more easily accomplished. As court decisions have produced reasonable reforms in prisons, mental hospitals, etc., attorneys are now asking the courts to apply doctrines generated in such cases to welfare departments and similar agencies. Mezey's study will help guide research as this happens. PITIFUL PLAINTIFFS is a book that scholars interested in judicial policy making or in public policy analysis more generally will want on their shelves.

REFERENCES:

Cooper, Phillip. 1988. HARD JUDICIAL CHOICES: FEDERAL DISTRICT JUDGES AND STATE AND LOCAL OFFICIALS. Oxford: Oxford University Press.

Horowitz, Donald. 1977. THE COURTS AND SOCIAL POLICY. Washington, D. C.: Brookings.

McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press.

Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

Scheingold, Stuart. 1974. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY AND POLITICAL CHANGE. New Haven: Yale University Press.

Schultz, David A. Ed. 1998. LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang.

CASE REFERENCE:

DESHANEY V. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES, 489 U.S. 189 (1989).