The suit seeks to show bias and discrimination in the child welfare system

The Center for the Study of Social Policy (CSSP) and National Center for Lesbian Rights (NCLR) along with over two dozen other organizations have filed an amicus brief in the U.S. Supreme Court. The case, Fulton v. City of Philadelphia, involves Philadelphia’s child welfare program, in which the city contracts with private agencies to provide foster care services.

In recent years the city required all contractors to refrain from discrimination when providing services on behalf of the city. But Catholic Social Services filed suit,  claiming a constitutional right to violate the city’s non-discrimination requirement. CSS is unwilling to certify same-sex couples as potential foster parents when providing services for the city.

On June 8, 2018, the national ACLU and the ACLU of Pennsylvania filed a motion to intervene in the lawsuit on behalf of the Support Center for Child Advocates, a nonprofit that represents and advocates for children in the foster care system, and Philadelphia Family Pride, a nonprofit membership organization of LGBT people and their families.

The amicus brief highlights the government’s compelling interests in protecting children and eliminating discrimination in the child welfare system. The government’s interest in preventing discrimination is particularly urgent as research has shown that nationwide, the current child welfare system is plagued by bias and discrimination based on race, national origin, religion, gender, disability, sexual orientation, and gender identity.

“Any discrimination harms the children the state is charged with protecting and shatters the families the system is charged with preserving,” said Cathy Sakimura, deputy director and family law director at NCLR. “Bias can and does infect the system at any point.”

The brief notes that families of color, parents who are poor or with low incomes, parents with disabilities, and LGBT parents are far more likely to be investigated. In many cases they have had their children removed from their homes based on bias and negative stereotypes. The religious organizations sometimes cause great harm both to the children and to their families, say LGBT activists.

Professor Nancy Polikoff has written about a study of black mothers with low incomes. In 2016 she indicated that lesbian or bisexual participants were more than four times likelier than heterosexual participants to have lost their children to the state in child welfare proceedings.

Non-discrimination requirements are extremely important in the child welfare system because the stakes are so high, the brief explains. Decisions based on bias lead to children being taken away from their families. Many times there is no valid reason to do so except bias. It sometimes leads to children being placed in foster homes where they will encounter discrimination or even abuse, say advocates.

“Without unbiased decision making, children cannot be guaranteed the care they require to grow into healthy and successful adults—and could, in fact, be placed in homes that create harmful and long-lasting barriers to their health and well-being,” said Bill Bettencourt, CSSP Senior Fellow. “A ruling requiring the City to allow discrimination in its child welfare program would turn the foundational principles of the child welfare system on their head.”

Fulton v. City of Philadelphia background

On July 13, 2018, a federal district court denied CSS’s motion for a preliminary injunction and rejected the argument that child welfare agencies have a right to discriminate.

On July 16, 2018, CSS asked the Third Circuit to enter an emergency injunction granting the relief denied by the district court.  The Third Circuit denied that motion on July 27, 2018.

On July 31, 2018, CSS asked the U.S. Supreme Court to issue an emergency injunction granting the relief denied by both the District Court and Court of Appeals. On Aug. 30, 2018, the Supreme Court denied their motion.

On April 22, 2019, the Third Circuit upheld the district court’s ruling denying CSS’s motion for a preliminary injunction.

On Feb. 24, 2020, the U.S. Supreme Court announced that it has granted cert in the case, meaning that the court will hear arguments in the case in its next term.

The current court calendar shows the opening arguments will be heard at the Supreme Court one week after election day this November.