Abstract
Over 400,000 children are languishing in foster care, and states have little incentive to improve their foster care systems. The only tool capable of sparking meaningful reform is class action civil rights litigation. But this tool is under attack. Several federal courts have relied on Younger v. Harris to abstain in these institutional reform cases. And states are pushing the Supreme Court to resolve the circuit split in their favor. Resolving the Younger quandary is vitally important for child victims of abuse and neglect. The Supreme Court held in DeShaney v. Winnebago County Department of Social Services that children who are not in state custody cannot sue state officials for failing to protect them against well-known risks of harm. If courts use Younger to shut the courthouse doors on foster children, then states, aided by the federal courts, will have functionally immunized themselves against 14th Amendment Due Process claims by children. This combination of DeShaney and Younger would enshrine into American jurisprudence the antiquated and paternalistic quip: children are better seen, not heard. This article makes the case that Younger does not apply to systemic reform litigation aimed at state executive agencies.
Recommended Citation
Baloche, David
(2024)
"Seen Not Heard: The Application of Younger Abstention in Child Welfare Reform Litigation,"
Akron Law Review: Vol. 57:
Iss.
1, Article 1.
Available at:
https://ideaexchange.uakron.edu/akronlawreview/vol57/iss1/1