The State's Failure to Protect Children and Substantive Due Process: Deshaney in Context

74 Pages Posted: 31 Mar 2007

See all articles by Laura E. Oren

Laura E. Oren

University of Houston Law Center


After years of abuse by his father, four-year old Joshua DeShaney entered a hospital emergency room in a deep coma that left him permanently paralyzed and brain damaged. The child protection agency in Winnebago County, Wisconsin had intervened in Joshua's family before and had known for more than two years the history of abuse and the continuing serious risk the boy faced. Joshua and his mother filed a civil rights suit against the caseworkers and the agency, alleging that their failure to protect the child from his father violated the boy's substantive due process rights. The United States Supreme Court in DeShaney v. Winnebago County Department of Social Services (1989) held that Joshua and his mother had no cause of action, reasoning that the government had no constitutional duty to protect anyone from harm unless the state first deprived that person of liberty by placing him or her in its custody.

This article criticizes the Court's due process analysis. It questions the Court's embrace of an abstract philosophy about "no constitutional duty" to provide "government services" and its adoption of a bright-line test based on custody. Using insights about context and power garnered from feminist scholarship and the domestic violence movement, the article places DeShaney back into the specific context of family violence and child protection from which the Court abstracted it. The article explains that historically the state has treated children at risk from their parents' behavior differently from other victims of violence and has decriminalized child abuse, promoting a therapeutic, preventive treatment instead. Every state centers responsibility for child abuse in social service agencies. The article argues that because the state placed Joshua in a special legal status, increased his isolation and vulnerability to abuse by his father, and left the boy only one avenue of protection - the social service agency - the agency bore fourteenth amendment responsibility for his life and bodily integrity. It further proposes a solution to the "razor's edge" dilemma of child protection workers who, if DeShaney were overturned, might have to strike a precarious balance between constitutional liability for improper intrusion in the parent-child relationship and for failure to intervene promptly enough to protect a child at risk.

Keywords: DeShaney v. Winnebago County Department of Social Service, Child Abuse, Failure to Protect, Substantive Due Process, Civil Rights, Domestic Violence

Suggested Citation

Oren, Laura E., The State's Failure to Protect Children and Substantive Due Process: Deshaney in Context. North Carolina Law Review, Vol. 68, p. 659, 1990, Available at SSRN:

Laura E. Oren (Contact Author)

University of Houston Law Center ( email )

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