The Bronx Defenders and Arnold & Porter Sue ACS to Stop Its Reign of Terror Against New York’s Most Marginalized Families

May 17, 2023

Contacts:

Lawsuits seek to force ACS to finally answer for decades of systemic racism

Includes first of its kind lawsuit to enforce MRTA after ACS separated a Black family over lawful cannabis use

The Bronx, NY – Today, The Bronx Defenders and Arnold & Porter filed two lawsuits against New York City’s Administration for Children’s Services (ACS) to challenge discrimination against parents of color. The first case seeks information about an internal effort to address racial bias in ACS operations that its leadership quashed and buried; the second is on behalf of a Black mother who was separated from her newborn because of those racially biased ACS practices.

These lawsuits are necessary because despite years of public reports, family testimony – and even ACS’s own audits and public commitments to becoming an “anti-racist” organization – the agency continues to separate families and criminalize parents based on race. As a result, Black parents are being denied equal rights under the law and Black families are suffering lasting harm. The courts must intervene to ensure long-overdue transparency and accountability.

“For years, ACS has paid lip service to recognizing and addressing its own racial bias, choosing instead to evade calls for transparency and reform, which has caused lasting harm to the family sanctity and bonds of generations of New Yorkers,” said Niji Jain, Senior Staff Attorney, Impact Litigation Practice at The Bronx Defenders. “These lawsuits against ACS illustrate how the agency systematically polices marginalized families and tears them apart based on harmful, racist stereotypes about Black parents and families, laying bare the endemic racism and discrimination that lies at the heart of the agency.”

The first lawsuit builds on a racial equity audit that The Bronx Defenders uncovered, which ACS was hiding from the public. The audit was damning, revealing that ACS’s own leadership encourages employees to target Black and brown families, reflexively use family separation, and rely on damaging racial stereotypes without telling parents their rights. More damning still are recommendations in the audit that have yet to be followed – including those made by ACS’s own staff to support Family Miranda legislation, which ACS publicly opposes.

Months later, ACS is hiding how ACS leadership responded to the audit and whether it is taking corrective action, in violation of the Freedom of Information Law. As the FOIL lawsuit makes clear, New Yorkers have a right to know what ACS did or did not do in the face of its own audit saying it is racist.

This is not simply a matter of government transparency: the failure of ACS to address and correct its internal racial bias has real consequences for vulnerable families. The second lawsuit filed today is on behalf of a Black mother from the Bronx who was separated from her newborn baby as a direct result of the deliberate indifference ACS has shown to its racial bias problem.

ACS forcibly separated Chanetto Rivers from her newborn baby shortly after giving birth due to a positive test for cannabis. As predicted by the audit’s findings that ACS goes out of its way to punish Black parents, ACS workers ignored agency guidelines and violated the Marihuana Regulation and Taxation Act (MRTA) when it targeted Ms. Rivers. Even after a judge intervened to reunite the family, ACS pressed on with the case against Ms. Rivers for months. The case of Ms. Rivers shows not only that ACS has learned nothing from its own internal audit but that its practices are so infused with racial bias that its workers are openly violating new state laws designed to curb racial discrimination.

“When ACS took my baby away from me, I felt lost, empty, and hopeless,” said Ms. Rivers. “ACS has been ripping Black families apart for generations, and I’m bringing this case to let Black parents know they have rights to stand up to ACS.”

“We welcome this opportunity to partner with The Bronx Defenders on these critically important litigations,” said Michael Schissel, a partner with Arnold & Porter.  “It is time for the judicial process to address the devastating racial inequities that ACS has failed to remedy on its own, and to bring to light ACS records surrounding the 2020 racial equity audit that so decidedly exposed ACS’s discriminatory practices.”

Background

Rivers v. City of New York: Chanetto Rivers, a 34-year-old Black mother from the Bronx, had her newborn illegally separated from her by ACS mere days after she had given birth in 2021, depriving her of the opportunity to bond with her baby in the precious first week of his life. ACS cited Ms. Rivers’ cannabis use for their separation — but New York State’s cannabis legalization law, which went into effect six months prior, explicitly prohibits separations on that basis. In addition to defying state law, ACS also violated its own 2019 guidance directing caseworkers not to remove a child or file a case against a parent for a positive marijuana test. 

New York lawmakers enacted the Marihuana Regulation and Taxation Act (MRTA) precisely to end the racialized harm and complex intergenerational trauma wrought by the War on Drugs. Yet ACS was so focused on its desire to separate a Black mother from her child that it ignored its own internal policies and violated this important New York State law. At ACS’s direction, the newborn remained at the hospital until a judge ordered the family to be reunited. The case alleges ACS violated Ms. Rivers’ right to equal protection under the Fourteenth Amendment and discriminated against her under the MRTA, which legalized marijuana use and prohibits interfering with parental rights on the basis of marijuana. This is the first lawsuit under the anti-discrimination provision of the MRTA. Read the complaint here.

The Bronx Defenders v. ACS: This FOIL lawsuit demands transparency and accountability for ACS’s continued cover-up of a damning racial equity audit that revealed pervasive racial bias within the agency, as well as disturbing incentives for ACS staff to protect themselves rather than families they purport to serve. Our lawsuit reveals the extent to which ACS has attempted to evade transparency around its racial equity audit. ACS redacted communications and withheld documents about how its leadership responded to the grave findings in the audit. And even after the auditor provided a 90-page implementation plan to begin remedying the deep-seated racial bias it found, ACS has refused to reveal whether the audit was simply for show or whether it planned to implement the audit’s recommendations.

This persistent lack of transparency is troubling and difficult to square given ACS’s own public comments acknowledging its legacy of racial bias and need to change. As a public agency whose actions have the potential to needlessly rip families apart, ACS has a duty to be transparent with New Yorkers about the 2020 racial equity audit.  Read the legal filing here.

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About The Bronx Defenders

The Bronx Defenders is a public defender nonprofit that is radically transforming how people in the Bronx are represented in our legal system and, in doing so, transforming the system itself. We have developed a groundbreaking, nationally recognized model called holistic defense that achieves better outcomes for the people we represent. Each year, we defend over 20,000 low-income people in criminal, civil, family, and immigration cases, and reach thousands more through our community intake and outreach programs. Today, we are reimagining the role of public defense even further, using community organizing, legislative advocacy, and impact litigation to partner with the communities we serve to bring about systemic change.

About Arnold & Porter

Arnold & Porter combines sophisticated regulatory, litigation, and transactional capabilities to resolve clients’ most complex issues. With over 1,000 lawyers practicing in 14 offices worldwide, we offer deep industry experience and an integrated approach that spans more than 40 practice areas. Through multidisciplinary collaboration and focused industry experience, we provide innovative and effective solutions to mitigate risks, address challenges, and achieve successful outcomes.