Tuesday, October 27, 2020

Does Harm Result When Religious Placement Agencies Close Their Doors? New Empirical Evidence from the Case of Boston Catholic Charities

Nelson Tebbe

By Netta Barak-Corren and Nelson Tebbe

On November 4, the Supreme Court of the United States will hear oral arguments in Fulton v. City of Philadelphiaan important case concerning child welfare in Philadelphia. A social welfare agency objects on religious grounds to Philadelphia’s rule requiring it to place foster children with LGBTQ parents. The agency says that if the Court rules for the city, it will close its doors and children will be harmed. We have uncovered new evidence undermining the agency’s empirical claim.   


Like other cities, Philadelphia contracts with private agencies to help it place foster children with families. One of these agencies, Catholic Social Services (CSS), is arguing that it has a constitutional right to refuse to place kids with same-sex couples, despite the city’s antidiscrimination rules. In Fulton, the Supreme Court will decide whether antidiscrimination rules like this one violate a religious organization’s right to free exercise.


All of the justices will rightly care deeply about how ruling one way or another will affect children. Knowing this, lawyers for CSS are arguing that ruling against the religious agency will cause harm. According to the Becket Fund, which represents CSS, the agency will never serve same-sex couples. If it loses in court, therefore, it will simply shut its doors. That will impact children, the lawyers argue, because it will mean fewer families available at a time when the number of foster kids is greater than the supply of homes. The Wall Street Journal editorial board has argued similarly that “[b]eyond the law, Philadelphia’s coercion hurts the city’s most vulnerable children and the families who want to care for them.”


On the other hand, Philadelphia and its lawyers are claiming exactly the opposite: that allowing the agency to exclude same-sex couples will negatively affect outcomes. Not only are same-sex couples better suited for LGBTQ children, they argue, but they also serve as foster parents at high rates and they are willing to take at-risk children. All children are better off if placement agencies refrain from systematic discrimination, on this view.


Not only does this issue of whether applying antidiscrimination causes harm matter for the Supreme Court case, but it also matters in a number of similar cases pending in lower courts. It also affects state legislatures. About eleven states have passed laws that exempt religious child placement agencies from antidiscrimination laws, and about five more are considering such laws. There too, officials will want to know how their decisions will affect children.


In all these debates, a few precedents loom large. In a handful of cities, religious agencies have actually closed rather than comply with equality laws. Often, these closings are thought to be obvious catastrophes: everyone loses when social service organizations are forced from the marketplace, it is assumed. For instance, CSS told the Supreme Court in one of its briefs that “In Boston, San Francisco, Buffalo, the District of Columbia and the State of Illinois, Catholic charities have already been forced out of foster care and adoption. Many agencies have been forced to close before litigation can run its course, and therefore protection for [CSS] here is of outsized public importance.” Lawyers affiliated with Becket have cited the same examples, cautioning courts not to rule against religious agencies. But Massachusetts and 22 other states have filed a brief arguing that the closings in Boston and elsewhere did not impact children negatively.


Who is right? We have set out to study what happened in other cities where religious agencies shut down. We have compiled a dataset of all the cities where agencies have closed their placement business rather than comply with antidiscrimination rules. Next, we are in the process of analyzing a national dataset of child outcomes to find evidence on whether the closings negatively impacted kids. Finally, we are interviewing child welfare professionals who have experience on the ground in each of these cities. 


While our research is ongoing, our preliminary findings unsettle any easy assumption that the closure of religious agencies harms vulnerable children. The evidence we have uncovered from Boston does not support the argument that closures of religious agencies generates negative effects. Although our results are not yet conclusive, they shift the burden of proof to those arguing that kids will be adversely affected if religious agencies close—and they suggest that it may not be easy to meet that burden.


Of all the closure examples that have shaped the debate, Boston is the most prominent. After Catholic Charities of Boston was reported in the press to have been placing kids with families headed by LGBTQ parents, the agency was instructed by the church to end the practice. The government declined to exempt the organization from antidiscrimination laws and Catholic Charities closed the doors of its child placement business in 2006, effectively shutting its adoption operations in Massachusetts. This was widely taken to be deeply regrettable. Still today, the specter of the Boston episode casts a shadow over cases like the one in Philadelphia.


Yet we have uncovered evidence that the closing in Massachusetts may not have had a negative impact on children. As part of our study, we are conducting interviews with experienced social work professionals who have detailed knowledge of the child placement programs in the various cities where conflicts have arisen. Some of them have worked on child placement themselves. In the case of Boston, we interviewed professionals who worked for Catholic Charities at the time it closed its child placement operation. They reported that another agency took over all of Catholic Charities’ cases. They explained that the transition from Catholic Charities to the new agency was smooth, and that children were not affected negatively. 


So far, we have found the Boston reports to be echoed by professionals in other cities. Agencies close for various reasons, and when they do, there are established protocols to transition their workload, cases, and licensed families to other agencies. The reports from Boston are particularly striking.


Theresa Thompson (all names have been changed to protect confidentiality) had been working for Catholic Charities of Boston before Massachusetts adopted marriage equality in 2003. Thompson was a front-line social service worker, and she reported that her fellow agency workers were generally supportive of the practice of placing children with same-sex couples. And in fact, Catholic Charities had been placing a small number of children with LGBTQ parents over the years. When the Roman Catholic Church intervened to end that practice, it created a conflict with the government’s antidiscrimination rule. 


After it became clear that Catholic Charities would close its child placement business rather than comply with the antidiscrimination rule, the government began to look for another agency that could absorb its cases. Catholic Charities had a large caseload of between 80 and 100 children at the time. Eventually, it was determined that one of the other large agencies would take over all of Catholic Charities’ cases. Moreover, the new agency approached Thompson and all the other social service professionals who had been working for Catholic Charities and invited them to switch over as well. Many decided to work for the new agency, which also took over the physical space in which they had been working. “I’m still at the same desk that I was in 2003,” Thompson told us, “it’s the same address at the same location. . . . And we kept working with the same kids.”


The effect was a transition that had little if any deleterious impact on children. “There was no interruption of service,” Thomson related. The contract money that the state had been providing to Catholic Charities simply shifted over to the new agency. Some staff members did leave, and they had to be replaced with new professionals. As a result, caseloads were elevated for about six months. But all the cases were retained and serviced: “none of the cases went back to the department,” Thompson reported.  


What about the concern that families who work with an agency that shutters will be lost to the system? Will their beds go empty, so to speak? This fear has been raised in the Philadelphia case. But Thompson said that did not happen in Boston – not with Catholic Charities, nor with other religious agencies that closed for other reasons. “You don’t lose the beds. The beds transfer to another agency” and the families “are still licensed.” Though she was working on adoption, not foster care, Thompson reported that in her experience, families working with an agency that closes will simply switch to another agency. They do have the option of refusing to work with other agencies, but few take that step.  


Thompson also reported that in her experience LGBTQ families were unusually willing to take kids with special needs. And at a time when there are far more children to be placed than families to place them with, that difference really matters, in her view. “You’re more likely to see an LGBTQ family who’s open to mild autism or a child who’s deaf or is part of a unique community of some kind, or who has CP [cerebral palsy].” 


We also interviewed Zack Walden, who worked at Catholic Charities on another aspect of child welfare services. At the time Catholic Charities closed its placement program in 2006, he was working in one of its other offices. He too said that when the church decided to close down the program, “they were able to work it out with another agency [so] that most of our staff as well as their cases went with this other agency.” From his perspective, “it was a smooth kind of transition that was as beneficial as possible for the kids and families that they were working with at the time.” 


He also reported that, to his knowledge, there were no families who had been working with Catholic Charities who refused to transition to other agencies after the closure. As “with any big change, there was an adjustment period,” but there were no families who had been so attached to Catholic Charities that they couldn’t transition to another agency and continue helping children. 


We found that these accounts are corroborated by data from the Adoption and Foster Care Analysis and Reporting System (AFCARS), a national dataset that aggregates anonymized data on children in foster care. Observing the Massachusetts data before and after the closure of Catholic Charities reveals that children do not spend more time in foster care following the closure—in fact, their time in foster care slightly decreases, from a median of 468 days in 2005 to 338 days in 2008—and the rate of adoption for children with that goal remains high and stable, at 93-95%. We also see no rise in the number of children who spend prolonged periods in foster care (three years and longer) and we even see a decline for several years in the length of time clinically disabled children wait for placement. This evidence is particularly important, as Catholic Charities was considered “especially adept at finding homes for so-called ‘special needs’ adoptions, which include children who are older or who have significant disabilities”.


To be sure, our work is ongoing and we plan to expand our analysis and examine more sources of data and more areas of conflict. That work may reveal complexities that we do not yet see. Still, our findings so far provide an important takeaway: CSS’s empirical claim that children are harmed when religious placement agencies close is not supported by precedent, and particularly its most prominent precedent—the Boston case. The fact that an agency closes is saddening, but it does not entail the conclusion that the gap it leaves cannot be successfully filled.


None of this is to say that things could not turn out differently in another context where a transition is managed less well. In particular, the positive outcomes in Boston depended on the existence of another agency willing and able to take the cases, as well as the participation of professionals willing to work on those cases. But the transfer of cases when agencies close seems to be common practice, said social work professionals in other cities. Because foster care and public adoption typically are funded by contracts with the state, other agencies are typically willing and able to take over those contracts.


In sum, we uncovered evidence that children were not harmed when one of the largest placement agencies in Boston terminated its placement business rather than comply with civil rights protections for LGBTQ couples. Justices of the Supreme Court deciding the Philadelphia case, like other judges and legislators considering religious exemptions for child placement agencies, should not rely on this assumption. In constitutional law as elsewhere, arguments about outcomes should rest on actual data.

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