Restoring Equipoise to Child Welfare

Since the Supreme Court’s widely criticized decision in DeShaney v. Winnebago County Dept. 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.” There is considerably less certainty about the prospect of relief for children and parents harmed by a social worker’s affirmative acts - the warrantless strip search of a child to obtain evidence of sexual abuse, for example, or the unjustified removal of a child from her parents’ custody. The uncertainty derives not from substantive constitutional law, because these are the sorts of infringements proscribed by our Constitution’s charter of negative liberties, but from unresolved questions about the level of immunity to which social workers ought to be entitled when their conduct is challenged in federal court. This article is the first to argue that these questions should be resolved in a way that acknowledges the force of DeShaney’s mandate. 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 presents an unacceptable inequity of incentives to allow social workers to be held liable for 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 it can correct this perilous imbalance.