By: Rena Watanabe
Volume X – Issue II – Spring 2025
Child abuse in the United States is not a rare or isolated occurrence—it is a systemic crisis that affects hundreds of thousands of children each year. According to the National Children’s Alliance, more than 550,000 children are known victims of abuse. [60] These numbers, however, are likely underestimated due to the obscure nature of abuse. Many cases go unreported due to fear, shame, or a lack of intervention by adults or the government who should have recognized these signs. In particular, the pandemic has heightened concerns that, as families were confined to their homes, instances of child abuse became more severe and increasingly underreported. [61] Childhood is a formative period for a child to cultivate their sense of self, identity, and curiosity for the world around them. At this stage, they have yet to form and internalize biases, stereotypes, and prejudices. They have yet to be exposed and acculturated to the cruelty of the world. It is meant to be a time of safety and exploration, not suffering.
But for children who experience long-term abuse, especially at the hands of their parents, survival often replaces growth. They learn not how to “escape” but how to “survive”—a defense mechanism that requires them to bury parts of their voice, their sense of worth, and their will to resist. There are children who give in, silently, with no voice to express or recognize it. There are children who are convinced that they are not abused. Other children think their parents aren’t to blame because they’ve never known love outside the bounds of their family. The internalization of powerlessness at such a young age is one of the most devastating psychological consequences of child abuse. Despite the existence of child welfare services, the system often falls short by either failing to act in time, or overcorrecting with unnecessarily traumatic removals from their home. [62] Social workers are overburdened, under-resourced, and forced to make high-stakes decisions with insufficient information. [63] The legal framework, particularly in light of the case DeShaney v. Winnebago County Department of Social Services (1989), often prioritizes governmental non-interference over proactive protection. This paper aims to dissect the legal, moral, and institutional implications of DeShaney, exploring the Supreme Court’s interpretation of the Due Process Clause reflects a deeper structural failure to safeguard the most vulnerable populations.
I. INTRODUCTION AND BACKGROUND
In DeShaney v. Winnebago County Department of Social Services (1989), four-year-old Joshua DeShaney became comatose and then profoundly injured due to traumatic head injuries inflicted by his father who physically beat him over a long period of time. [64] The Winnebago County Department of Social Services (DSS) took various steps to protect the child after receiving numerous complaints of the abuse; however, DSS did not act to remove Joshua from his father’s custody. The central issue is whether a State’s failure to protect an individual from private violence constitutes a violation of the Due Process Clause. The Due Process Clause is a constitutional right found in the 14th amendment, stating that no State shall “deprive any person of life, liberty, or property, without due process of law.” Traditionally, this clause has been interpreted as a safeguard against arbitrary government action. [65] While the Due Process Clause is a powerful safeguard against governmental abuse of power, the Court in DeShaney ruled in favor of the DSS, holding that the State’s failure to intervene into Joshua’s situation was not a constitutional violation.
As a moral matter, this case is deeply heartbreaking and tragic. The government’s approach is crude, failing to acknowledge the imperative of government protection in protecting vulnerable individuals. The outcome, while legally sound under stare decisis and the Court’s conservative jurisprudence, feels deeply unjust, as it denies victims a means of holding the State accountable for failing to fulfill its protective role. The Court adopts a strict, formalist interpretation of the Due Process Clause, which can be a shield to protect the abuse of power from the State. However, it neglects the possibility that the Due Process Clause could also serve as a sword to individuals, especially vulnerable individuals like Joshua.
II. MAJORITY COURT OPINION
In the majority opinion of DeShaney, the Supreme Court ruled that the Due Process Clause does not impose a special duty on the State to provide services to the public for protection against private actors if the State did not create those harms. [66] The Court reasoned that the purpose of the Due Process Clause was to protect people from the State, not to ensure that the State protected them from each other. The Court claims in its opinion, “its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” [67] In other words, the Constitution protects individuals from State-inflicted harm, but it does not guarantee protection from harm inflicted by private actors, such as Joshua’s father.
This interpretation highlights a critical limitation in the scope of the Due Process Clause: while it is designed to prevent the State from unlawfully depriving individuals of life, liberty, or property, it does not impose an affirmative duty on the government to intervene when those rights are threatened by private individuals. The Court’s reasoning rested on the principle that constitutional protections are generally negative in nature—they prohibit certain State actions rather than require State assistance. As the Court put it, “the Due Process Clause… does not transform every tort committed by a State actor into a constitutional violation.” [68] Only when the State has created a “special relationship” with the individual— such as through incarceration, institutionalization, or custody—does it assume a constitutional duty to ensure safety and care.
This distinction is legally sound within the traditional framework of constitutional interpretation, but it has been the subject of intense criticism. Dissenting justices, such as Justice Brennan and Justice Blackmun, argued that by placing Joshua under State supervision, however informal, and by systematically failing to remove him from a known dangerous environment, the State had effectively deprived him of liberty without due process. Justice Blackmun’s powerful dissent lamented, “Poor Joshua!” [69]—a line that has come to symbolize the moral outrage and perceived failure of the legal system to uphold the most basic duty of protection for vulnerable children.
What DeShaney exposes is the tension between formalistic legal reasoning and the moral expectations of justice. While the Court’s interpretation of the Due Process Clause may be doctrinally consistent with precedent, it raises broader questions about the role of the State in protecting its most vulnerable citizens. When a child is failed by both their parents and the institutions meant to intervene, the absence of a constitutional remedy suggests a gap between the law as written and justice as understood. In essence, DeShaney underscores the fact that the Due Process Clause is not a catch-all for systemic neglect. It affirms a narrow view of constitutional accountability—one that centers on direct State action rather than State inaction. For advocates of child welfare and legal reform, this case signals the need for stronger statutory protections and policy reforms beyond what constitutional doctrine alone can offer. It also invites a broader societal reckoning: when the law refuses to act, who bears responsibility for protecting children like Joshua?
III. IMMUNITY FOR SOCIAL WORKERS
Child welfare social workers face an immensely challenging role. They manage overwhelming caseloads, operate with limited resources, and navigate the emotionally taxing nature of their work. [70] They are repeatedly exposed to the trauma experienced by children and families, often absorbing the emotional toll themselves. [71] As a result, many social workers grapple with mental health issues such as compassion fatigue, secondary traumatic stress, and burnout. Given the high-stakes nature of their responsibilities and the complexity of decision-making under pressure, some argue that social workers should be afforded a degree of legal immunity to protect them from excessive liability when their judgment is later questioned. [72] In DeShaney, although the decision was deeply disheartening for the child involved, it protected social workers from the risk of excessive legal liability for failing to prevent child abuse.
If social workers are held liable for failing to protect an abused child, social workers may prioritize practicing defensive work, such as the over-removal of children without adequate evidence, and other harmful acts that could potentially traumatize families. [73] This can create perverse incentives, as social workers may work to shield themselves from lawsuits and to avoid liability rather than child welfare. Social workers operate in high-stakes environments where they must make rapid, complex decisions about child safety with often incomplete or ambiguous evidence. If social workers are held personally liable for failing to protect a child, they may begin practicing defensive social work— removing children from their homes in marginal cases to shield themselves from lawsuits, rather than making decisions in the child’s best interest. [74] This can lead to an over-removal of children, as fear of litigation may push social workers to err on the side of caution, removing children from their homes even when there is no clear evidence of imminent harm. This can traumatize families, disproportionately impact marginalized communities, and overload the foster care system. [75] Additionally, it could lead to resource diversion, as defensive social work prioritizes liability avoidance over child welfare, leading agencies to spend time and resources on legal protection rather than on meaningful interventions for atrisk children. In his article, Besharov discusses the complexities of liability in child welfare, emphasizing that “child protective agencies seek to avoid formal court action whenever possible,” and the fear of litigation can cause social workers to make overly cautious decisions, such as removing children without sufficient evidence of harm. [76]
This connects to the argument that raises concerns of parental rights. Removing a child from their home without sufficient evidence can lead to lawsuits from parents who claim their constitutional rights were violated. The right to family integrity is a constitutional right under the 14th amendment Due Process Clause that recognizes the ability for families to make their own decisions and live together without governmental interference. There is a considerable State interest for social workers to have clear and convincing evidence before taking drastic actions like removing a child from a home. Coercive intervention and overly aggressive actions can lead to wrongful removal lawsuits. In the case at hand, the Department of Social Services (DSS) team decided that there was “insufficient evidence of child abuse to retain Joshua in the custody of the court” [77] and provided alternatives to Joshua’s father to protect Joshua, such as enrolling Joshua in a preschool program, and providing his father with certain counseling services. [78] These were steps taken to not overstep the boundaries of parental rights but yet take action to alleviate the issues within Joshua’s home environment.
IV. COMPARISON TO CASTLE ROCK V. GONZALES (2005)
The Supreme Court reaffirmed and extended the reasoning in DeShaney nearly two decades later in Castle Rock v. Gonzales (2005), another deeply troubling case that tested the boundaries of State responsibility under the Fourteenth Amendment. In Castle Rock, Jessica Gonzales had obtained a restraining order against her estranged husband to protect herself and her three daughters. [79] Despite the order, her husband abducted the children and later murdered them, after local police repeatedly failed to enforce the restraining order or respond meaningfully to Jessica’s pleas for help. Gonzales sued the police department, arguing that their inaction violated her procedural due process rights by failing to enforce a court-issued protective order. The plaintiff, Jessica Gonzales, contended that the police violated her Due Process rights under the Fourteenth Amendment by failing to enforce a restraining order against her estranged husband, who later killed their three daughters. She argued that the language of Colorado’s mandatory arrest statute created an entitlement in police enforcement, which was protected under the Due Process Clause. Gonzales argued that the language of Colorado State law created a “property interest in police enforcement,” which was protected under the Due Process Clause.
The Court, however, ruled against Gonzales, and held that no such entitlement existed. It reasoned that even though the statute used mandatory language requiring police to "use every reasonable means" to enforce restraining orders, law enforcement officers retain discretion in how they enforce the law. The Court emphasized that an entitlement under the Due Process Clause must be a specific and enforceable right, not merely an expectation of government action. Since police discretion is inherent in law enforcement decisions, Gonzales had no property interest in a guaranteed police response. The Court held that even though the State law used mandatory language requiring police to “use every reasonable means” to enforce restraining orders, law enforcement retained discretion in how they enforce the law. The Court emphasized that an entitlement under the Due Process Clause must be a specific and enforceable right, not merely an expectation of government action. Since police discretion is inherent in law enforcement decisions, Gonzales had no property interest in a guaranteed police response. Thus, the ruling reinforced the principle that the Due Process Clause protects individuals from arbitrary state action but does not impose an affirmative duty on the government to protect them from harm inflicted by private actors, even in cases where statutory language appears to mandate government intervention.
Both DeShaney and Castle Rock explore the tension between expanding constitutional protections and the limits of the entitlement argument under the 14th amendment’s Due Process Clause. In both cases, the plaintiffs sought to hold the State accountable for failing to intervene in private violence, arguing that government inaction deprived them of constitutionally protected rights. However, the Supreme Court rejected these claims, reinforcing the principle that the Due Process Clause is a negative liberty that restricts State action rather than imposing affirmative obligations on the government to protect individuals from private harm. Both cases illustrate the Court’s reluctance and unwillingness to expand constitutional principles in ways that impose broad affirmative obligations on the State. By rejecting the entitlement argument, the Court upheld the idea that constitutional protections under the 14th amendment primarily safeguard against government overreach rather than ensuring State action to protect individuals from harm. These rulings reflect the historical and political context of the Court in which the cases were situated. Under stare decisis, these decisions adhered to the traditional, rigid interpretation, which is a form of legal formalism that the following paragraph will further explore.
V. LEGAL FORMALISM IN DESHANEY
Legal Formalism is a judicial philosophy that law should be applied in a mechanical, objective manner, without considering external social, political, or moral factors. [80] It treats legal decision-making like solving a math problem—rules are applied strictly based on their text, structure and logic, without regard to the real-world consequences. Formalists believe that this approach ensures neutrality and predictability in the law, as opposed to legal realism, which argues that courts should consider the broader social and policy implications of their rulings. Proponents of legal formalism believe that judges should not play an active role in “creating” law but only apply existing laws as written. On the other hand, legal realism is the idea that the law is not just a set of fixed rules but is shaped by social, political, and economic realities. It rejects the idea that law operates in a vacuum, as realists argue that courts should consider the practical consequences of their decisions. Furthermore, realists view judges as human decision makers whose rulings are shaped by personal beliefs, policy considerations, and societal needs. [81]
Legal Formalism in DeShaney is exemplified in the Supreme Court’s rigid, text-based interpretation of the 14th amendment’s Due Process Clause. The Court, applying a formalist approach, treated the case as a purely legal question, detached from the tragic circumstances surrounding Joshua DeShaney’s abuse. In adopting this approach, the court fails to consider the practical realities of child welfare services, power dynamics between the State and vulnerable children, or the special vulnerability of Joshua as a child under Child Protective Services (CPS)’s watch. In contrast, a legal realist approach would have focused on the real-world consequences of the ruling, considering the power imbalance between the government and abused children, the institutional failures of DSS, and the broader policy implications of denying relief to victims of State inaction. Justice Blackmun’s dissent reflected a realist perspective, criticizing the majority for its rigid, detached reasoning, stating that “Poor Joshua!” was left unprotected by a legal system that failed to recognize the government’s moral responsibility.
VI. CONCLUSION
The power dynamics between the State, the parent, and the child highlight an imbalance. Parents have near-total authority over their children’s lives, while the State only intervenes when harm reaches a legally defined threshold. But when social services fail to act, as in DeShaney, the legal framework prioritizes governmental restraint over child welfare. This rigid interpretation of the Due Process Clause seems to contradict its core purpose of preventing the abuse of power. Instead of a strict distinction between action and inaction, the law should recognize that, in some cases, failure to intervene is just as harmful as direct State action. While I acknowledge the Court’s concern about opening the floodgates to excessive litigation against social workers, this should not come at the cost of protecting society’s most vulnerable members. Strengthening State tort remedies or creating clearer legal obligations for CPS agencies could provide an alternative path to accountability without forcing an expansion of constitutional principles.
Endnotes
[60] National Children's Alliance. “National Statistics on Child Abuse.” National Children’s Alliance, 2022. <www.nationalchildrensalliance.org/media-room/national-statistics-on-child-abuse/>.
[61] Stewart, Nikita. “Child Abuse Cases Drop 51 Percent. The Authorities Are Very Worried.” The New York Times, 9 June 2020. <www.nytimes.com/2020/06/09/nyregion/coronavirus-nyc-child-abuse.html>.
[62] McEvoy, R. “The Parent Trap: Rebalancing Parallel Enforcement Between Child Protective Services and Law Enforcement.” Penn Carey Law Review, vol. 169, no. 3, 2020. https://scholarship.law.upenn.edu/penn_law_review/vol169/iss3/5/.
[63] Mshigeni, Deo, and Moosgar Borieux. “Child Welfare Social Workers’ Decision-Making Challenges Associated with Clinical Practice, Organisational, and Sociopolitical Factors.” Advances in Social Work and Welfare Education, vol. 24, no. 1, 2022. https://journal.anzswwer.org/index.php/advances/article/view/280.
[64] DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). https://supreme.justia.com/cases/federal/us/489/189/.
[65] Strauss, Peter. “Due Process.” Legal Information Institute, Cornell Law School, 2022. <www.law.cornell.edu/wex/due_process>.
[66] DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
[67] Ibid.
[68] Ibid.
[69] Ibid.
[70] Schneider, Sarah. “Reexamining Social Worker Immunity in the Child Welfare Context.” Seton Hall Law Review, vol. 52, iss. 4, Article 9, 2022. https://scholarship.shu.edu/shlr/vol52/iss4/9.
[71] Ibid.
[72] Ibid.
[73] Smith, G. “DeShaney v. Winnebago County: The Narrowing Scope of Constitutional Torts.” Maryland Law Review, 2012. https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2775&context=mlr.
[74] Ibid.
[75] Ibid.
[76] Besharov, Douglas. “Child Protective Services Liability: When the System Fails.” Office of Justice Programs, 1994. <www.ojp.gov/ncjrs/virtual-library/abstracts/child-protective-services-liability-when-system-fails>.
[77] DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
[78] Ibid.
[79] Castle Rock v. Gonzales, 545 U.S. 748 (2005). https://supreme.justia.com/cases/federal/us/545/748/.
[80] “Legal Formalism.” Legal Information Institute, Cornell Law School. <www.law.cornell.edu/wex/legal_formalism>.
[81] Rachlinski, Jeffrey & Wistrich, Andrew. “Judging the Judiciary by the Numbers: Empirical Research on Judges.” Cornell Law Faculty Publications, 2017. https://scholarship.law.cornell.edu/facpub/1534/.