News Law and Policy

Kentucky Settlement: Tax-Funded Child-Care Agencies Can’t Discriminate Based on Religion

Jessica Mason Pieklo

Child-care agencies that contract with the state will now have to ensure that children are not pressured into participating in religious worship or instruction.

A battle in Kentucky over state funds going to faith-based child-care institutions that openly proselytized to children appears to be nearly over. In a settlement announced Wednesday, child-care agencies that contract with the state are barred from discriminating against children on the basis of religion. The settlement also requires agencies to consider alternative placement if a child or guardian objects to a provider’s religious affiliation and bans agencies from pressuring or coercing a child into participating in worship or religious services.

The settlement was a result of a lawsuit between state officials and a group of citizens represented by the American Civil Liberties Union and Americans United for Separation of Church and State. The suit was first filed in 2000 by four Kentucky residents, including Alicia Pedreira, a lesbian who claimed religious discrimination caused her to lose her job with the Kentucky Baptist Homes for Children, now known as Sunrise Children’s Services. Sunrise cares for abused and neglected children through residential centers and foster care placement. The company is the largest private child-care provider in Kentucky and handled a significant number of the state’s placements. According to reports, Sunrise has benefited from massive taxpayer support; since the case began, the Baptist-affiliated ministry is reported to have received substantially more than $100 million in government funds, and in fiscal year 2011, the state paid $14.8 million of the ministry’s $24.7 million in expenses.

In 2009, an appeals court dismissed Pedreira’s claim against Sunrise but allowed the claims challenging the public funding of faith-based institutions to proceed. According to the lawsuit, Sunrise employees pushed the Baptist faith on children of all beliefs. In documents filed in support of their lawsuit, attorneys for the plaintiffs detailed numerous examples of Sunrise’s focus on religion in delivering care. Among other things, Sunrise’s president was said to have touted the agency’s success in converting children. The agency also calls itself “Christ centered” and refers to the foster parents it recruits as “in-home missionaries.” According to attorneys for the plaintiffs, documents obtained through the lawsuit revealed that numerous children, including Catholic, Pentecostal, Jehovah’s Witness, and atheist youths, felt pressured into giving up their beliefs. Interviews with children conducted by the Children’s Review Program, a private contractor hired by Kentucky officials to monitor programs for children, identified numerous instances in which young people complained about being forced to attend Baptist services or said they were not permitted to attend services of other faiths.

The state cancelled the review program in 2008, citing budget concerns.

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Under the terms of the settlement, child-care agencies that contract with the state will be forbidden to discriminate in any manner against children based on their religious views or to pressure children to participate in religious worship or instruction. Publicly funded child-care agencies and foster homes across the state also will be barred from placing religious items in children’s rooms without their consent, and religious materials will be given only to children who request such materials. While the settlement immediately stems from the Sunrise complaint, the terms broadly cover any agency doing business with the state.

Additionally, prior to placing a child with a religiously affiliated child-care agency or foster home, the state will inform children and parents of the provider’s religious affiliation, and if the child or parent objects, the state will endeavor to provide an alternative placement, except in certain special circumstances. “We are pleased with this settlement,” said Americans United Associate Legal Director Alex J. Luchenitser in a joint statement. “It will ensure that vulnerable youths in Kentucky’s child-care system are free to follow and practice their own faiths, or no faith at all, and that no religion is forced upon them.”

“This strong agreement promotes the basic constitutional principle that taxpayer funds should never be used to underwrite religious indoctrination,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, in the same statement.

Furthermore, thanks to the settlement, the state will be required to extensively monitor state-funded child-care agencies to make sure that they comply with the terms mandated by the settlement and do not religiously proselytize or coerce the children in their care.

The settlement still must be approved by U.S. District Judge Charles R. Simpson III. Assuming that happens, state officials will have 90 days to modify regulations and for child placing agencies to comply.

News Family

Adoption Agencies in Michigan Can Now Discriminate Against Same-Sex Couples

Nina Liss-Schultz

Same-sex couples in Michigan may have a harder time adopting children under new laws signed by Gov. Rick Snyder on Thursday that allow adoption agencies to deny anyone services based on the organization's "sincerely held" religious beliefs.

Same-sex couples in Michigan may have a harder time adopting children under new laws signed by Gov. Rick Snyder on Thursday that allow adoption agencies to deny anyone services based on the organization’s “sincerely held” religious beliefs.

The package of complementary bills—HB 4188, HB 4189, and HB 4190passed through the state legislature on Wednesday and was signed by Snyder less than a day after coming to his desk. Snyder, a Republican who said in April that he would veto stand-alone religious freedom legislation, talked about the bills as a way to increase the number of adoption agencies in the state.

“This is about making sure we get the largest number of kids in forever families,” Snyder told the Associated Press. “The more opportunities and organizations we have that are doing a good job of placing people in loving families, isn’t that better for all of us?”

The Michigan Catholic Conference, which is the “official public policy voice” of the Catholic Church in the state, has for years lobbied for adoption agency religious freedom bills, following reports that Catholic Charities affiliates in Illinois closed their doors instead of following regulations requiring them to work with same-sex couples.

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Under the laws, the state would be prohibited from taking any “adverse action” against child-placing agencies—even those that receive state funding or the benefit of contracts with the state—because they discriminate against people. The laws come just weeks before the Supreme Court is expected to rule on Michigan’s, as well as three other states’, same-sex marriage bans.

Two other states, Virginia and North Dakota, have laws explicitly allowing discrimination by private adoption agencies.

Florida lawmakers also considered a similar bill this year. HB 7111, the “Conscience Protection for Actions of Private Child-Placing Agencies Act,” was passed by the state house but died in a senate committee.

Only hours after the laws were signed by Snyder, the American Civil Liberties Union of Michigan vowed to challenge them in court.

“We are developing a lawsuit with our Muslim, Jewish, Christian and LGBTQ partners,” said Rana Elmir, the organization’s deputy director. “There is nothing about this shameful legislation that helps vulnerable kids find homes.”

Analysis Violence

Ohio’s Conflicting Statutes Create Obstacles for Some Abuse Survivors

Annamarya Scaccia

Survivors of child sexual abuse have 12 years after they turn 18 to pursue justice—unless they're trying to sue the state.

Uranus Watkins was only 14 years old when she says two employees of Ohio’s state-run Scioto Juvenile Correctional Facility sexually abused, assaulted, and raped her over the course of a year while she was in custody.

According to a 2012 civil lawsuit she filed against Ohio’s Department of Youth Services (DYS), Watkins has lost employment, incurred health expenses, and suffered mentally, emotionally, and physically as a result of the violations, which reportedly took place from 2000 to 2001. Moreover, she argues, DYS continuously failed to properly investigate sexual abuse reports or implement policies preventing them within its facilities—despite, as she phrased it in her lawsuit, the department’s “knowledge of a history and patterns of problems within the organization.”

Less than two months after Watkins filed her case, though, the Ohio Court of Claims, which governs all civil actions against the state, granted DYS’s preliminary motion to dismiss it, ruling that Watkins’ right to action had expired under Ohio’s sovereign immunity statute. Under that statute, potential plaintiffs only have two years past the age of majority to level any civil claim against the state. Given that Watkins turned 18 in 2004, the court determined that she would have had until 2006 to lodge the complaint.

But Watkins and her attorney, Jill Flagg, assert that the “essential character” of the case is childhood sexual abuse, meaning that Ohio’s much longer window to pursue those civil claims—12 years past majority age—should apply. Under that law, Watkins would actually have until 2016 to file her suit.

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“Most childhood sexual abuse victims will not get civil justice with a two-year statute of limitations,” Flagg pointed out to Rewire in an email. The Court of Claims decision, she continued, essentially “says that the people of Ohio don’t care whether these victims [of violence in state-run facilities] get access to the court when they’ve been raped or molested.”

Even so, an appellate court affirmed the Court of Claims ruling in May 2013.

Watkins appealed to the Ohio Supreme Court last September, claiming the disparate application of the two statutes violates Watkins’ constitutional rights. The court then heard oral arguments in April of this year; the justices have not indicated when they will hand down a decision.

According to Mason, Ohio-based attorney Konrad Kircher, this is the first time the state’s highest court is interpreting the issue of sovereign immunity in child sexual abuse cases. But, he noted, the state legislature only implemented the 12-year statute of limitations eight years ago, making the law “still fresh in jurisprudence.”

Still, Kircher, who pursued dozens of survivors’ rights cases during Ohio’s clergy scandal in the early aughts, told Rewire, “Does it surprise me [the supreme court] took the case? No. I mean, there is this apparent contradiction between the two years and the 12 years.”

And the implications of the case, Flagg says, are immense.

“If the court rules in our favor, all childhood sex abuse victims will get 12 years past their 18th birthdays to bring civil claims. It means equality in the legal system for all victims,” Flagg wrote to Rewire. “This opinion will cause the state of Ohio to apply safeguards to ensure that children do not get sexually abused.”

But if the court sides with the state? “Many victims of abuse would be barred from bringing suit against the state and state facilities,” Flagg predicted.

Equal Protection for All Youth

During oral arguments to the state supreme court, Flagg contended that the trial court’s dismissal of Watkins’ case infringes on her equal protection rights under the 14th Amendment. By applying the two-year statute instead of the 12-year one, the state is treating youth abuse survivors differently based on whether the institution is owned and operated publicly or privately, Flagg wrote in her brief.

In particular, Flagg argued, the unequal treatment resulting from the ten-year difference between the two statutes violates Watkins’ right to privacy, as enshrined in Roe v. Wadeor more specifically, sexual privacy as determined in Griswold v. Connecticut. Since Watkins was not legally granted the same amount of time to process her abuse as that given to a survivor of violence in a non-state-run facility, Flagg continued, her right to privacy surrounding that matter was violated.

As noted in Flagg’s brief, the U.S. Supreme Court ruled in U.S. v. Vuitch that “health,” in the context of privacy, includes mental health. It also determined in Planned Parenthood of Pennsylvania v. Casey that undue burdens cannot be placed on a person’s right to privacyin Watkins’ case, Flagg said, that burden is the constraint of time.

“The actual privacy right is the right to process an act that is very private, like a sexual abuse act,” she told the court, noting that the equal protection claim is “unique” in this case. “It implicates the right to privacy through the psychological processing of the abuse.”

The state’s attorney, Peter K. Glenn-Applegate, disputed the equal protection charge, claiming under heavy questioning by the court that the laws differ on a rational basis. Therefore, he reasoned, the two-year statute is constitutionally sound because, among other points, sovereign immunity helps “preserve taxpayer funds”—an argument Justice Paul E. Pfeifer called “offensive” in the context of children’s safety.

This explanation, Flagg wrote to Rewire later, “sends the message that the state of Ohio cares about money … over kids.”

For that matter, Flagg countered during the hearing, such a mercenary tack “is not even a good answer to the rational basis test. … I think [the state] would save some money in the short term, but in the long term, they wouldn’t address the main problem here, and that is they aren’t taking the precautionary measures to protect our children in facilities.” By contrast, expanding the law to allow survivors of state violence to file suit would compel state agencies to fix problems of safety and avoid future litigation. As of now, she said, “there’s no incentive for them to do that.”

Glenn-Applegate also argued that the language of the childhood sexual abuse statute itself allows for the application of the two-year limit in this case. Referred to as the “unless” clause, the 12-year law states that all civil actions fall under the revised code if a previous claim has not been filed or if another statute cannot be enforced.

That last element is one the state’s lawyer has clung to tightly in Watkins’ case: He claimed that when the Ohio General Assembly passed the 2006 law, representatives contemplated the role of the sovereign immunity statute in childhood sexual abuse claims, though that possibility was never explicitly mentioned during the legislative process. And since survivors can sue their direct abusers—rather than their abusers’ public employers—in the Court of Common Pleas under the 12-year statute, Glenn-Applegate said, youth abused in state facilities would still have some opportunity for justice.

The general assembly could “have been hardly clearer about which claim applies in which court,” he told the supreme court.

But, refuted Flagg, the legislature’s use of “all civil actions” and “all civil plaintiffs” in the law is “expressly implicit” proof that it didn’t intend state actors to be part of that exception. While youth hurt by state actors could file in the pleas court, she said, that option does little to hold both private and public entities equally accountable for their respective complicity in the matter—and it’s often a complicated task for plaintiffs already overwhelmed by judicial barriers.

The two-year limit provides for little redress and recourse, said Flagg. Nor does it allow for “general acknowledgment that people looked the other way or enabled the sex abuse for the plaintiff,” she said.

As Tara Murtha has previously reported for Rewire, survivors of childhood sexual abuse often go years, even decades, without revealing what took place. It could be their abuser was a family member or authority figure, and they fear reporting. It could be they repressed what happened until an event—or even a slight moment—triggered the memories years later. Or it could be they haven’t connected the abuse with its destructive long-term manifestations, such as addiction, depression, anxiety disorders, or other illnesses.

Knowing that, Flagg told the court, “Two years was not even a thought. Two years would be cruel.”

According to Jeff Dion, deputy executive director of the National Center for Victims of Crime, civil statutes of limitations in Ohio are already “really quite strict and draconian, and not very victim-friendly compared to what we see in other states.” In at least 26 states, for example, the time limits to pursue civil child sexual abuse cases don’t even begin until the survivor makes a causal connection between the abuse and its disruptive effect on his or her life. And in June, Massachusetts passed the longest fixed-year statute of limitations in the country—up to age 53.

In Ohio, meanwhile, “when you add on top of [existing limits] the even shorter time frame, it becomes almost impossible for a victim of child sexual abuse in a state facility to be able to get civil justice unless they can recognize it and report it immediately,” Dion told Rewire. “That’s really rare for victims because child sex abuse is often not an instance where someone grabs a child and forces them to perform a sex act.”

With many incidents of childhood sexual abuse, he continued, survivors undergo years of grooming and manipulation by the perpetrator. Since this is often a person in a position of authority whom they know and trust, it can be “difficult for victims to recognize that what happened to them constituted abuse.”

“There’s all sorts of factors in place that keep victims quiet and try and prevent the victim from coming forward. … The law doesn’t reflect the reality of how long it takes victims to report,” Dion concluded. “Ohio is really far behind what other states are doing in responding to that.”

Katie Hanna, executive director of the Ohio Alliance to End Sexual Violence (OAESV) concurs. “When we see many survivors come into rape crisis centers, it’s 20, 30 years after a sexual assault. We also have victims coming in right after the fact. It’s important for the public to remember that the trauma and impact of rape does not go away,” Hanna told Rewire. “By having arbitrary time limits on the statute of limitations, it limits the ability for people to take justice … in some cases, victims can feel like their voice isn’t being heard.”

Hanna, like Flagg, says Watkins’ case will have enormous implications for abuse survivors in the long run.

“What’s huge about the [Ohio Supreme Court] decision that comes out is that it’ll really set that standard to say there could be an opportunity for other victims [of state violence] to come forward in the future to seek justice,” she said.

An Epidemic of Abuse

Much of the significance of Watkins’ case stems from the sheer volume of sexual violence incidents within Ohio’s publicly run juvenile correctional facilities. According to the widely reported Bureau of Justice Statistics 2012 survey released last year, nearly 20 percent of the 329 adolescents surveyed in the state reported being abused, either by fellow youth or by staff—the highest percentage in the country. An estimated 17.1 percent of Ohio’s adjudicated youth reported one or more incidents of sexual misconduct by staff, the majority of which involved female guards abusing male juveniles.

“What is clear anecdotally and from the reports is that this is a real human rights crisis of sexual abuse in youth facilities,” Jesse Lerner-Kinglake, senior communications officer for Just Detention International, told Rewire. “The overwhelming majority of sexual abuse in juvenile facilities is committed by the very people who are charged with keeping kids safe. That’s simply unacceptable.”

According to BJS, three of Ohio’s four state-run facilities ranked in the top 13 nationwide with the highest rates of sexual violence. In those centers, 30.3 percent of youth at the male-only Circleville Juvenile Correctional Facility reported being sexually abused by other adolescents or employees—the second-highest percentage in the United States. Scioto, where Watkins was held, ranked number five on the BJS study, with 23.2 percent of youth in the facility reporting instances of abuse. Cuyahoga Hills Juvenile Correctional Facility came in at 13th, at nearly 20 percent.

These rates are more than double—if not triple—the national average of 7.1 percent.

Given the often lower number of reports made through official channels, Hanna told Rewire, “When you look at [the BJS] data, it really tells us there are huge barriers to reporting these crimes within confinement facilities and also within community settings.” Those barriers, she said, include fear of retaliation, reports being disbelieved or disregarded, a lack of access to legal assistance and representation, and financial limitations—all of which can be “huge deterrent[s] for people seeking justice.” “That can impact someone’s ability to be able to even report and disclose at that time [of abuse].”

Even more “illuminating and disturbing” than the rates themselves, though, said Lerner-Kinglake, is BJS’s revelation of a “fundamental breakdown in professional boundaries” within youth correctional institutions. And this lack of competence, he said, can be traced back to management’s failure to adequately train and educate staff. “That [negligence] is widespread,” Lerner-Kinglake said.

Such failure, according to DYS data obtained by Rewire, has not ended with the release of the 2012 BJS report. In 2013, there were 82 cases of alleged staff-on-youth sexual abuse, assault, and rape in DYS facilities, 76 of which the agency classified as as unsubstantiated. Of the four that were substantiated, some of which involved more than one employee, DYS incident reports show that one employee received a written reprimand; two employees were removed for sexual misconduct; and two were disciplined for sexual harassment and reassigned to the Department of Rehabilitation and Correction, which oversees the adult prison population.

And as of August 12 of this year, there were a total of 46 staff-on-youth abuse cases. Sixteen of those are currently pending, 22 were unsubstantiated, and eight were, according to DYS, “unfounded.”

Harvey J. Reed, director of DYS, told the U.S. Department of Justice’s Prison Rape Elimination Act (PREA) panel in January that his department “was stunned” by the double-digit rates released by BJS. During his testimony, Reed said DYS “reacted quickly and aggressively” to the survey: It increased staff training, installed more cameras and mirrors for better monitoring, set up a tip line for reporting, and hired a full-time coordinator to implement PREA standards within its facilities.

Also alarmed, Gov. John Kasich formed a four-agency task force to combat the issue, while Ohio’s Controlling Board authorized $200,000 in public funds for DYS to use to contract further outside expert help in complying with PREA standards. That grant continues through September 2015.

Other state officials, like Joanna Saul of the Ohio Correctional Institution Inspection Committee, expressed similar sentiments of dismay at the high rates. But Saul’s apparently surprised reaction (she called the report “extremely disturbing and concerning”) seems emblematic of the often belated responses of administrations and governing bodies where prison populations are concerned.

Case in point: As Saul acknowledged, in May 2013, one month before BJS released its report, the inspection committee she oversees handed the Circleville Juvenile Correctional Facility a passing grade after an on-site inspection that March—the same institution with the second-highest rates of sexual assault in the country.

Which circles back to Scioto. Before closing this year, the institution had been the subject of official investigations for more than a decade. In 2004, both the state and the Kentucky-based Children’s Law Center ordered two independent inquiries into confinement conditions at the DYS-run institution; the Department of Justice launched its own examination nine months afterward.

Also in 2004, youth at Scioto sued the state in a federal civil rights class-action lawsuit for the center’s alleged physical, emotional, and sexual abuse of its adolescents, as well as DYS’s reported failure to adequately act upon these accusations. As part of that suit, S.H. v. Stickrath, which expanded to include all DYS facilities in 2007, juvenile corrections expert Fred Cohen, Esq. released a final report in 2008 about the quality of care in Ohio DYS facilities. According to his report, he found the state-run centers did not provide youth “with the constitutional minima relating to a safe environment.”

They are overcrowded, understaffed, and underserved “in such vital areas as safety, education, mental-health treatment and rehabilitative programming,” Cohen wrote.

A key bit in Cohen’s report would seem to support Watkins’ aforementioned claim that DYS had “knowledge of a history and a pattern of problems within the organization.” In both a 1998 and a 2004 report, Cohen noted “constitutionally deficient mental health care” and “a staff culture of violence” at Scioto. These conditions, he wrote in 2008, had not substantially changed.

Ultimately, it took 16 years from his first report for the Delaware, Ohio, institution to shut down. That closure, though, was reportedly the result of downsizing measures by DYS; youth residing in the facility were moved to community detention centers.

Changing the System to Help All Abuse Survivors

If the state were actually held directly responsible for its alleged climate of abuse, experts pointed out to Rewire, its agencies would enact rules protecting youth in the long run.

As Dion noted, “Part of what civil lawsuits do is they force public entities to change their policies. If [the entities] keep getting sued, it creates that incentive.” However, with sovereign immunity in place, he said, far fewer people are suing state agencies. “Right now, they’re protected from abuse, so none of these issues are being exposed or brought to light. There’s not as much of an incentive for them to change their policies,” he continued.

Even so, Watkins’ case isn’t the first time DYS has faced a civil lawsuit for claims of childhood sexual abuse. In 2006, a former resident of the now-shuttered Ohio River Valley Juvenile Correctional Facility filed a complaint against the department for injuries and damages related to sexual abuse by one of its correctional officers. The case weaved its way through the Court of Claims over a three-year period, and although immunity issues arose, it ultimately resulted in a $10,000 settlement agreement in 2009.

A similar case in 2010 involving the Cuyahoga Hills Correctional Facility was dismissed without prejudice the next year after the plaintiff could not be reached to conduct an immunity status conference.

And in May, Flagg filed a different suit in the Court of Claims against DYS and four of its employees on behalf of another former Scioto inmate, whom DYS employees allegedly sexually abused and assaulted over a six-month period. The Court of Claims denied Flagg’s motion to reinstate a jury trial, which she appealed this week to the 10th District Court of Appeals.

When it comes to Watkins’ case, though, Ohio attorney Kircher doesn’t believe Flagg’s equal protection claim holds water from a legal standpoint, although he was “impressed” by the questioning along these lines from some of the justices. In the past, he said, the courts have upheld the constitutionality of sovereign immunity statutes even when plaintiffs have tried to invoke the 14th Amendment.

As an example, Kircher points to the state attorney’s argument that the application of the two-year statute protects taxpayers’ monies. This, he says, is supported by prior cases, such as the 1990 Menefee v. Queen City Metro. “As offensive as that may be[,] there’s case after case that says it’s a legitimate rationale,” Kircher told Rewire.

“I admire this plaintiff and this attorney for bringing this issue to the Ohio Supreme Court. I don’t think they’re going to be successful in the immediate run with the court, but they’re helping amplify that the law needs to change,” Kircher told Rewire.

Kircher also expects that the traditionally conservative court will defer to the state general assembly. He predicts that the justices will determine the legislature did indeed contemplate exceptions to the 12-year statute, and it’s therefore up to that body to change it.

“It refuses to be an activist court. I’ve seen that firsthand in my cases,” he said.

But, he posits, the court punting the interpretation will “put pressure” on the legislature to change the law. And much like Doe v. Archdiocese of Cincinnati, which Kercher himself took to the supreme court, was the catalyst for the Ohio assembly to pass the 12-year law in 2006, he thinks some state representatives will, as he put it, “pick up the banner of the plaintiff’s argument” and introduce a bill closing the gap between the disparate statutes within the year—and possibly pass it within two. “I think that’s what needs to be done. I do think that’s what will happen,” he asserted.

Dion, too, says action from the general assembly is necessary to create an environment that will allow survivors of alleged abuse to hold the state accountable in the future. “If the legislature is serious about reducing the abuse of children in state facilities, they have to basically create the marketplace for enforcement and for people to come forward,” Dion said.

If the state’s high court does rule in Watkins’ favor, though, Flagg believes the decision would have immense national impact, particularly on other states that do not have a clear proclamation of where shorter limitations for state actors stand in child sexual abuse cases. “This case will be precedent for those states,” the trial lawyer wrote to Rewire.

Dion agrees. If the plaintiff wins, it would be a “tremendous advance” and “would allow more victims to get justice and more [perpetrators] to be exposed,” he said.

He continued, “It would create more incentives for states to prevent this crime in the first place.”

CLARIFICATION: This article has been updated to reflect that the fourth substantiated DYS staff-on-youth abuse case resulted in the removal of the employee involved.