Texas has been locked in a battle over how it runs its foster care system for 13 years — the last five of which have been under the direct purview of a federal judge and court monitors.
The relationship between state foster care officials and U.S. District Court Judge Janis Jack is fraught. She found the state in contempt three times, accused them of misleading the court numerous more, and threatened jail time once for a state bureaucrat.
The two sides are far apart on how the system looks today. The judge and court monitors continue to find egregious incidents of state failures. But the state now argues it is substantially in compliance with the court’s 60 orders.
In February, Texas filed a motion to nullify several portions of the state’s oversight. This was just a couple of months after the state held a contempt hearing for failures in its system investigating abuse and neglect outcries in facilities housing intellectually disabled foster children.
“What is stunning about the state’s continually hiding records, failing to produce, obfuscating the status of these children…then…then — of all things — the state has the hubris to file a motion for relief of judgement,” an exasperated judge said from the bench.
Jack would just a few months later find the state in contempt again and order it to pay fines of $100,000 a day.
The state will argue Monday in front of the U.S. Court of Appeals for the Fifth Circuit that the fines be thrown out and Jack along with them. They want her off the case.
But it’s also argued that the very nature of this case and institutional reform injunctions — cases and court actions that force states to take specific actions — are “corrosive to federalism.”
They asked the appeals court to reign in its colleagues’ power to affect change in how states operate.
When states systematically violate the rights of their residents in institutions like prisons, schools, and foster care, they have been challenged in federal courts through institutional-reform cases.
These cases often have many plaintiffs, and they stretch on for years.
But conservative attorneys general in the South hope this Texas case can upend 70 years of case law dating back to the landmark school-desegregation case, Brown v Board of Education.
“We have to protect our sovereignty,” said Louisiana’s Attorney General Liz Murrill at a candidate luncheon a couple years ago. She, like many conservative AGs, talk about suing Democratic presidents for overreach. She said she had nearly three dozen cases against Biden administration.
“Our state sovereignty is what protects local government. It protects legislator roles to represent us. … It protects everything that we do at the local and state level in terms of state governance,” she said.
But, as a recent amicus brief filed by her office showed, she is also talking about vacating federal court orders over state and local agencies.
Louisiana has been the focus of federal court oversight many times, violating people’s rights in prisons, police departments and at the voting booth.
Joined by Mississippi, the brief argued these institutional reform cases strike at the very heart of state sovereignty. Attorneys for Louisiana’s attorney general’s office didn’t respond TPR’s request for comment.
These cases are often long and expensive for states, and the Louisiana AG argued that they tie legislators’ hands on funding decisions and put judges in charge of state agencies. Texas said it spent $150 million on foster care and $60 million on a vast network of court monitor staff.
Louisiana argued in its brief that Brown v Board of Education gave the courts too much power.
“A lot of these arguments are really old fashioned,” said David Marcus, a law professor at the University of California, Los Angeles. “Institutional reform litigation dates from the 1950s, with school desegregation litigation. There’s a lot of hand wringing about federal judges getting involved with state and local bureaucracies.”
Marcus and other law scholars filed their own brief pushing back on Mississippi’s and Louisiana’s arguments. They said the arguments ignored how the law evolved — with many state protections being added over the years — which he argued in his own brief with other legal scholars.
“There have been all sorts of changes in the law that governs these cases to make sure that federal judges honor principles of federalism while still fixing constitutional violations,” he said.
The federal courts — especially the conservative Fifth Circuit — have overturned other well established court cases, like Roe v Wade. Marcus said in recent years that the Fifth Circuit has issued opinions signaling an interest in revisiting institutional reform cases.
“What’s at stake is it’d be a lot harder for civil rights lawyers, acting on behalf of vulnerable, vulnerable groups of people to protect their rights in federal court,” he said.
Even if Texas is victorious getting the contempt fines struck down, he hoped the court doesn’t make it harder to protect people’s civil rights.