Deshaney v. Winnebago County Department of Social Services 488 U.S. 189 (1989)

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When Joshua DeShaney was one year old, his parents were divorced; the court awarded custody of Joshua to his father, who moved to Wisconsin and remarried. When Joshua was three, his father's second wife complained to the county department of social services (DSS) that the father was abusing the child, hitting him and leaving marks on him. DSS officials interviewed the father, who denied the charges; DSS did not pursue the matter. A year later Joshua was admitted to a hospital with multiple bruises and abrasions; the examining doctor notified DSS; DSS immediately obtained a court order taking custody over Joshua, but the DSS investigating team decided there was insufficient evidence of child abuse to retain Joshua in the court's custody. The father promised DSS that he would enroll Joshua in a preschool program and undertake counseling for himself. A month later the hospital emergency room notified DSS that Joshua had been treated again for suspicious injuries; the caseworker concluded there was no basis for action. Over the next six months the caseworker visited the home, repeatedly saw injuries on Joshua's head, and noted that he had not been enrolled in the preschool program. She recorded all this in her files and did nothing more. About a month later, the emergency room notified DSS that Joshua had been admitted with injuries they believed caused by child abuse. On the case-worker's next two home visits, she was told Joshua was too ill to see her. DSS took no action. Four months later, the father beat four-year-old Joshua, who lapsed into a coma; Joshua suffered severe brain damage, but lived. He is expected to spend the rest of his life in an institution for the profoundly retarded.

The father was tried and convicted of child abuse, but the case that reached the Supreme Court was a civil action, brought by Joshua's mother against DSS and some DSS employees, seeking damages on the ground that DSS had deprived Joshua of substantive due process of law in violation of the fourteenth amendment. The lower courts denied relief and the Supreme Court affirmed, 6–3. For the majority, Chief Justice william h. rehnquist concluded that the due process clause imposed no affirmative duty on the state or its officers to protect a citizen's life or liberty against private persons' invasions. Furthermore, no such constitutional duty arose merely because DSS had known of Joshua's situation and indicated its intention to protect him. The case differed from those in which the Court had recognized a state duty to assure minimal safety and medical treatment for prisoners and institutionalized mental patients, for here the state had done nothing to restrain Joshua or otherwise prevent him from protecting himself or receiving protection from other persons. The harm, in other words, "was inflicted not by the State of Wisconsin, but by Joshua's father."

For the dissenters, Justice william j. brennan castigated the majority for so limited a view of the prison-and mental-hospital cases. Here the state had set up DSS to protect children in precisely Joshua's situation, thus encouraging citizens generally to rely on DSS to prevent child abuse. One had to ignore this context to conclude, as the majority did, that the state had simply failed to act. Justice harry a. blackmun, in a separate dissent, objected to the majority's formalistic distinction between state action and state inaction; the state had assumed responsibility for protecting Joshua from the very abuse that deprived him of much of what it means to have a life.

In a great many ways the Supreme Court has imposed affirmative duties on the states to compensate for inequalities or other harms not directly of the states' making. (See access to the courts; right to counsel; mental retardation and the constitution; procedural due process of law, civil.) Its decisions in these areas recognize, if only partially, the artificiality of insisting that constitutional guarantees be rigidly confined to action that is formally governmental, ignoring the interlacing of public and private action that characterizes much behavior in America's complex society. As DeShaney sadly illustrates, a mechanical application of the judge-made state-action limitation on the Fourteenth Amendment can permit the systematic evasion of public responsibility.

Kenneth L. Karst


Tribe, Laurence H. 1989 The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics. Harvard Law Review 103:1–39.