The future of landmark legislation aimed at correcting racism in Minnesota’s child protection system has been thrown into jeopardy over questions of its constitutionality.
Earlier this month, Hennepin County Judge Matthew Frank struck down the rollout of the Minnesota African American Family Preservation and Child Welfare Disproportionality Act [MAAFPA] because it created a raced-based government policy in violation of the 14th Amendment.
The decision is a surprise setback for advocates who argued for years that Minnesota courts separate African American children from their families at wildly disproportionate rates.
Those advocates had celebrated the launch of MAAFPA, which passed in 2024 with broad bipartisan support, as a monumental victory for establishing higher standards “to prevent the arbitrary and unnecessary removal of African American and disproportionately represented children from their families.”
While the law is still set to go statewide in 2027, attorney Scotty Duscharme, who specializes in child protection and family law, said Frank’s order has cast a pall of uncertainty over MAAFPA and its future.
“No one asked Frank to find the entire act unconstitutional.” Duscharme said. “But if you read up in his memorandum and his footnotes, he says this is discrimination based on a suspect class: race.”
Kelis Houston, who fought for MAAFPA for more than a decade as an advocate for families, released a statement calling on Attorney General Keith Ellison and Hennepin County Attorney Mary Moriarty — “vocal supporters of the bill” — to appeal Frank’s order.
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In 2022, the American Bar Association undertook an assessment of racism in the child welfare system in Hennepin County. It found 83% of cases and 81% of out of home placements involved children of color. The 2020 Census showed Hennepin County was 66% white.
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MAAFPA sought to address this by requiring social service agencies in the state to provide “active efforts” to preserve the families of African American children and other children identified as overrepresented in the welfare system because of “race, culture, ethnicity, disability status or low-income socioeconomic status.”
The phrase “active efforts” creates a higher legal standard than the “reasonable efforts” in Minnesota’s other child protection cases. The law also requires social services to act in the best interest of these children by providing a “culturally informed practice lens that acknowledges, utilizes, and embraces the African American or disproportionately represented child’s community and cultural norms.”
Removing a child from a home requires higher scrutiny and can only happen if the child is under life threatening “imminent physical danger or harm.”
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Because of the scope of the law, the Legislature decided to start MAAFPA in just Hennepin and Ramsey Counties with a $5 million grant. The initial rollout covered 30% of all new child protection cases involving African Americans and American Indians not protected by the Indian Child Welfare Act.
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In his ruling, Frank wrote that while the Legislature and Department of Children, Youth and Families “had the best intentions” in creating the law and phasing in its rollout, he had to shut it down because there was no constitutional argument for granting legal protections to a percentage of the population based on race.
And though his decision was limited to the legality of the rollout, Frank also signaled that the overall law could be vulnerable to a challenge, writing that MAAFPA in its totality “involves a fundamental right and creates a suspect class” based on race.
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Yet University of Minnesota constitutional law professor Jill Hasday said Frank’s opinion was legally sound and that MAAFPA is the kind of legislative act that invites constitutional challenges.
“Minnesota appears to be applying different procedures for African American children and Native American children who aren’t covered by the Indian Child Welfare Act, then it applies to children of other races,” she said. “That is an explicit race-based distinction and explicit raced-based distinctions are almost always unconstitutional.”
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The post Judge Strikes Down Rollout of Minnesota Law Aimed at Protecting Black Families appeared first on American Renaissance.
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