Bernard E. Harcourt | Abolishing the “Child Welfare” Ordeal

By Bernard E. Harcourt

We were “state children,” court wards; [the judge] had the full say-so over us. A white man in charge of a black man’s children! Nothing but legal, modern slavery—however kindly intentioned.

— Malcolm X, The Autobiography of Malcolm X

Malcolm X’s autobiography opens with a searing critique of child welfare and protective services. He and his siblings had seen the worst of it—from start to finish.

After his father had been murdered by white men, his family slowly descended into poverty and destitution. Every step of the way, the family was accompanied by state welfare workers who watched, recorded, and prodded their strife. Treating them as pure numbers in a case file, the state workers took the siblings aside to pry, to interrogate, to surveil. Like good detectives, they knew how to get children to speak, sometimes to exaggerate, to play one off the other, to place a wedge, to drive them apart. “The monthly Welfare check was their pass,” Malcolm X explains. “They acted as if they owned us, as if we were their private property.”[1]

Struggling to support her eight children, Louise Little fought back. She talked back. She resisted. But the welfare workers kept meddling in their lives. “She would get particularly incensed when they began insisting upon drawing us older children aside, one at a time, out on the porch or somewhere, and asking us questions, or telling us things—against our mother and against each other.”[2]

The welfare workers were skilled at the art of deception. They knew how to get children to talk, and, even more, they knew how to sow discord. “They began to plant the seeds of division in our minds,” Malcolm X remarks. “They would ask such things as who was smarter than the other. And they would ask me why I was ‘so different.’”[3]

Soon enough, Malcolm X would be separated from his family, taken away from his mother, placed with the Gohannases. The welfare workers had been working on this for a time. They had interviewed the other family, unbeknownst to Louise Little. They had made their plans, before even telling Louise Little. “They were as vicious as vultures,” Malcolm X writes. “They had no feelings, understanding, compassion, or respect for my mother.”[4]

As his mother continued her decline, instead of finding ways to help her cope, the child protective services started taking the other siblings away too, ultimately turning all of Louise Little’s children into wards of the state. For her part, Louise Little gradually deteriorated, mentally and psychologically, and was ultimately committed to a mental hospital, the State Mental Hospital at Kalamazoo.

The state of Michigan had finished the family off.

Louise Little was involuntarily committed and spent 26 years in an asylum. Her children would grow up in dislocated foster homes.

Malcolm X eventually started breaking rules and soon enough was expelled from school. That’s all it took for the state of Michigan to place him in reformatory. He was thirteen years old. But first, he would go to a detention home.

Malcolm X describes, in piercing detail, how the welfare workers, the judges, the wardens wreaked havoc on his family. How they sowed discord in the family. Finally, how they tore the family apart:

I truly believe that if ever a state social agency destroyed a family, it destroyed ours. We wanted and tried to stay together. Our home didn’t have to be destroyed. But the Welfare, the courts, and their doctor, gave us the one-two-three punch. And ours was not the only case of this kind.

I knew I wouldn’t be back to see my mother again because it could make me a very vicious and dangerous person—knowing how they had looked at us as numbers and as a case in their book, not as human beings. And knowing that my mother in there was a statistic that didn’t have to be, that existed because of a society’s failure, hypocrisy, greed, and lack of mercy and compassion.[5]

A society’s failure, hypocrisy, greed, and lack of mercy and compassion: that is a telling—and accurate—indictment. There is the economic dimension of greed, the way in which we prefer today to invest in private mechanisms to foster children rather than in the families themselves. There is the raw mercilessness of tearing families apart. There is the hypocrisy of supposedly caring about some harms but not others. And there is the utter failure, the scars and trauma that are inflicted on so many. Perhaps the only dimension that Malcolm X need not have added, as it is woven through his autobiography, is the brutal racism of the entire process.

Today, as Dorothy Roberts reminds us, Black children represent a grossly disproportionate share of the child welfare system in the United States: “Even though they represent only 15 percent of the nation’s children, black children currently compose about 30 percent of the nation’s foster care population. In some cities and states, the disparity is much greater.”[6]

Of the many scholars who study the child welfare protocols in this country, none surpass Dorothy Roberts in the breadth, scope, and brilliance of her work. Now completing a new book calling for the abolition of family policing, Professor Roberts joins us at Abolition Democracy 10/13 to discuss what she calls the “family regulation system.”

Dorothy Roberts laid the foundation for her critique in an earlier book, Killing the Black Body (Pantheon, 1997), which begins with a history of the brutal objectification of Black women and children during the Antebellum period. Roberts documents how Black women were abused and raped to procreate children who would then become the slave property of their masters; how children were used to control their enslaved parents; and how the family was instrumentalized as a tool to dominate and control Black women and men. Black women were literally purchased as slaves in order to be raped and to produce children who would be enslaved. The economics of slavery, especially after the end of the slave trade in 1808, revolved around the reproduction of slaves. As Roberts explains, “every aspect of slave women’s reproductive lives was dictated by the economic interests of their white slave masters.”[7]

In Killing the Black Body, Dorothy Roberts also reveals how the public relief and welfare agencies were used, traditionally, as a way to surveil, monitor, discipline, and supervise families receiving aid from the state. Under the pretense of trying to prevent fraud, state workers pried into the lives of those who were assisted by the state. Roberts gives voice to Black women throughout the twentieth century who describe everything from the loss of privacy to outright humiliation and worse. Here, speaking, is a Black woman in the 1930s:

The investigators, they were like detectives, like I had committed a crime…. I had to tell them about my life, more than if I was on trial … the investigator searched my ice box…. I was ashamed of my life … that’s how you’re made to feel when you’re down and out like you’re nothing better than a criminal.[8]

Or here, a contemporary mother describing her experience:

I know they be wanting to know everything. They are so nosy. They control your life.[9]

Not surprisingly, the racial disparities in welfare supervision go hand-in-hand with gross disproportionality in the carceral sphere. As Roberts documents in her article “Prison, Foster Care, and the Systemic Punishment of Black Mothers,” Black women represent a disproportionate share of the prison population. The reasons are linked. “The racial disparity in the child welfare system,” Roberts notes, “reflects a political choice to investigate and blame mothers for the cause of startling rates of child poverty rather than to tackle poverty’s societal roots.”[10]

Roberts traces a number of vectors or dimensions that produce the racist consequences: the political economic dimension of neoliberal policies that “shifted government support for children toward reliance on private employment and adoptive parents to meet the needs of struggling families”; the punitive and merciless, as opposed to supportive, approach to dealing with family issues; the harmful stereotypes of Black women as the “sexually licentious Jezebel” or the “devious Welfare Queen,” that all feed into punitive responses—all of these dimensions conspire to turn “child welfare” into an Orwellian dystopia.

In a later book, Shattered Bonds: The Color of Child Welfare (Basic Books, 2002), Dorothy Roberts deconstructs the purportedly neutral arguments for family separation. Roberts shows how economic and political forces lead to family separation and to the types of harmful stereotyping that reinforce those dire consequences for African-American mothers.[11] “Racial inequities in the child welfare system,” Roberts explains, “cause serious group-based harms by reinforcing disparaging stereotypes about Black family unfitness and need for white supervision, by destroying a sense of family autonomy and self-determination among many Black Americans, and by weakening Blacks’ collective ability to overcome institutionalized discrimination.”[12]

These earlier writings lay the groundwork for Dorothy Robert’s call today to abolish family policing. In her essay from this past summer 2020, “Abolishing Policing Also Means Abolishing Family Regulation,” Roberts argues that “the misnamed ‘child welfare’ system, like the misnamed ‘criminal justice’ system, is designed to regulate and punish black and other marginalized people.” Like the “defund police” movement, but deeply concerned about how that movement might refund child protective services, Roberts argues for divestment and reinvestment in positive alternatives. “Our goal is not only to dismantle the current system, but also to imagine and create better ways of caring for children, meeting families’ needs, and preventing domestic violence,” Roberts explains.

In her call to abolish family policing, Roberts puts in conversation her work on child welfare with a broader vision of what she calls “Abolition Constitutionalism.” In a recent article by that title in the Harvard Law Review, Roberts draws the blueprint of how to reorient constitutional law discourse toward an abolitionist agenda.[13] Rather than cede the ground on the Eighth and Thirteenth Amendments, Roberts proposes a path forward that uses the history of the Reconstruction Amendments, and the surrounding Congressional debates over those Amendments, to promote prison abolition. As an intervention in history and constitutional law strategy, Roberts’ argument reflects, in a fascinating way, the journey that Frederick Douglass himself took during the earlier debates over the “usefulness” of the Constitution—over whether it was a pro-slavery document that was of no use or rather a source of authority for an abolitionist future.

Roberts proposes a new constitutional paradigm to support prison abolition, one that deploys “the abolitionist history of the Reconstruction Amendments as a usable past to help move toward a radical future.”[14] Roberts ties together capitalist exploitation and racial hierarchy, describing a “system of carceral punishment that legitimizes state violence against the nation’s most disempowered people to maintain a racial capitalist order for the benefit of a wealthy white elite.”[15] And Roberts argues that reform causes more prisons. Reform of the prison means more prisons, not less: “reforms that correct problems perceived as aberrational flaws in the system only help to legitimize and strengthen its operation. Indeed, reforming prisons results in more prisons.”[16]

In a similar way, as we will discuss, reform of the “family regulation system” could merely aggravate the problems associated with child welfare and foster parenting. The answer, then, is not to reform, but to abolish family policing.

On the way there, while it is surely not sufficient or adequate, one immediate positive step would be to ensure a universal basic income. This would, in effect, reverse the entire transformation—dating back to President Bill Clinton—that turned welfare into workfare. More than that, it could push us even further: not just eliminating the disciplinary and coercive element of workfare, but also abandoning the humiliation and degradation of welfare. A universal basic income would be a first step to put struggling families on better footing in order to make possible a healthier and more stable home environment for children.

Universal basic income is just one minor step forward, but it captures something important: to provide people in need with the resources that would help them thrive without the negative meaning and opprobrium—and humiliation and violations of privacy and dignity—that are associated with a welfare system. It also eliminates the moralizing that subtends so much of the stereotyping and racial discrimination.

Much more, naturally, is called for. As Dorothy Roberts explains, “Like demands to defund police, foster care abolition includes diverting the billions of dollars spent on separating children from their families to cash assistance, health care, housing and other material supports provided directly and non-coercively to parents and other family caregivers and care networks.”

It is now time to explore those alternatives.

Join me in welcoming Dorothy Roberts to Abolition Democracy 13/13.

Welcome to Abolition Democracy 10/13!

Notes

[1] Malcolm X, The Autobiography of Malcolm X As Told to Alex Haley” (Balantine Books, 2015), 13.

[2] The Autobiography of Malcolm X, 13.

[3] The Autobiography of Malcolm X, 17.

[4] The Autobiography of Malcolm X, 18.

[5] The Autobiography of Malcolm X, 22.

[6] Dorothy E. Roberts, “Prison, Foster Care, and the Systemic Punishment of Black Mothers,” 59 UCLA L. REV. 1474 (2012), at p. 1484.

[7] Roberts, Killing the Black Body, 25.

[8] Quoted in Roberts, Killing the Black Body, 227.

[9] Quoted in Roberts, Killing the Black Body, 227.

[10] Dorothy E. Roberts, “Prison, Foster Care, and the Systemic Punishment of Black Mothers,” 59 UCLA L. REV. 1474 (2012), at p. 1484.

[11] Dorothy Roberts, Shattered Bonds: The Color of Child Welfare (Basic Books, 2002)

[12] Roberts, Shattered Bonds, ix.

[13] Dorothy E. Roberts, “Abolition Constitutionalism.” Harvard Law Review 133, no. 1 (2019): 3-122, available at  https://harvardlawreview.org/wp-content/uploads/2019/11/1-122_Online.pdf

[14] Roberts, “Abolition Constitutionalism,” 11.

[15] Roberts, “Abolition Constitutionalism,” 14.

[16] Roberts, “Abolition Constitutionalism,” 43.

Bernard Harcourt

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