“Don’t go there, counsel. You’re just annoying me,” federal district Judge Janis Jack told lawyers for the Texas Department of Family and Protective Services earlier this year. “That is bad form. And I’m about to hold you in [in-court] contempt. … Do you want that on your malpractice insurance? Now, when I give an order, I don’t want you arguing with it again. Is that clear?”
If this kind of speech sounds more like an episode of Law & Order or a scene from A Few Good Men, Jack, who has been overseeing a class-action lawsuit filed against the Texas child welfare system for over a decade, doesn’t seem to mind. But the 5th U.S. Circuit Court of Appeals has apparently had enough of Jack’s drama, which included threats to jail the defendants in this civil suit, fining the state $100,000 a day for failing to comply with her orders, and ignoring the circuit court’s previous rulings. Last month, a panel of three judges actually removed her from the case.
Jack’s involvement with the case began with a 2011 lawsuit filed by a New York-based advocacy group called Children’s Rights, which resulted in a 2018 order requiring the state to “fix” the foster care system. “Texas’s foster care system is broken, and it has been that way for decades,” Jack wrote in her decision. “All the while, Texas’s … children have been shuttled throughout a system where rape, abuse, psychotropic medication, and instability are the norm.”
Much has changed in the years since. And perhaps the lawsuit can be credited with some of that change. The children who are at issue in court proceedings are in the permanent custody of the state and housed in residential care. These are children who are suffering from intellectual and physical disabilities and often have both serious mental health and behavioral challenges. The plaintiffs alleged the state was not doing enough to prevent abuse of these children at congregate care facilities and to prevent them from having to change placements numerous times.
These problems were real, and a number of abusive facilities were shut down in the aftermath of Jack’s opinion in 2015. Since then, however, the state has spent hundreds of millions of dollars, both in additional staff and trainings, as well as $60 million in court monitor fees, in order to fix these problems.
But in the past few years, Jack has demanded stricter and stricter adherence to her rules, and any incident at one of these facilities has turned into a reason for saying the state is not complying with her orders. Earlier this year, she fined the state $100,000 a day for being out of compliance.
Of course, it is easy for Jack to say, as she has, that even one abused child is too many. But in residential care facilities where children have serious behavioral problems, it is all but impossible to prevent any kind of contact between children, unless one is isolating and/or physically restraining them. As Tom Rawlings, former head of Georgia’s Division of Family and Children Services, noted recently in a blog post: Other systems have contributed to these problems. As violent youth have been diverted away from juvenile justice systems, they have become the problem of child welfare. Similarly, the mental health system has become so overstretched that parents are actually relinquishing custody to the child welfare system, which they believe will have a better chance of getting their children help than they do.
Rawlings also noted that “Jack’s own orders have added to the crisis.” The stricter regulations demanded by Jack have meant that “many facilities closed because they couldn’t handle the severe needs of the youth in their care.” The result is that today, Texas is housing many children in hotels, offices, and shelters. Between 2021 and 2023, Texas spent over $250 million on these inappropriate and insufficient placements. Indeed, just about every state in the country is suffering from similar shortages. So it’s not clear why Jack thinks that her railing against the leadership in Texas is going to fix the problem.
Nevertheless, her dramatics have continued, asking plaintiffs if they would like to be forced to stay in conditions similar to the foster children. She also repeatedly said of the foster children: “These are our children. These are our children.” She even went so far as to disregard the previous rulings of the 5th Circuit, which required the state to be in “substantial compliance” with the orders, not mandating that any instance of a problem was a sign that the state was out of compliance. As the 5th Circuit noted in its decision to remove Jack:
The Defendants conducted thousands of investigations during the period covered by the court’s hearing, and the monitors found noncompliance in just over three dozen instances, involving about 13 children. We do not minimize the Defendants’ shortcomings in these matters, but violations committed by the Defendants on a very small scale in relation to the magnitude of the institution, the prescriptive orders, and the overall numbers of children can be better put in perspective by a jury.
This episode is worth considering not only because Jack’s conduct is so egregious. Most states in the country have been subject to similar class-action lawsuits against their child welfare systems (or police departments or school systems), after which they are governed for years, if not decades, by consent decrees or settlements overseen by judges.
Timothy Sandefur, vice president for legal affairs at the Goldwater Institute, noted that “federal district judges have really extraordinary power.” He compared this case to school desegregation cases. “Once a judge issued an injunction, that judge has really, really broad equitable power to impose a remedy. And a judge who’s determined enough can really put the screws on a party.”
Indeed, the 5th Circuit seems to have found that this is exactly what Jack did, concluding in its ruling, “As a general rule of law federal judges are not allowed to become permanent de facto superintendents of major state agencies.” But this is exactly what’s happening. And the situation is only deteriorating. As Rawlings wrote, “Perhaps she should consider that when a Court steps in and micromanages an agency’s processes as Judge Jack has done, it may get compliance but it won’t get improved outcomes.”
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But aside from the problems on the ground, there are also issues of principle at stake here. Putting judges in charge of agencies, particularly over long periods of time, makes the system even more unaccountable than an executive agency on its own — which at least is subject to change when the executive changes or when a legislature exercises oversight.
Sandefur cited Lord Kames, a Scottish philosopher and one of Thomas Jefferson’s favorite writers, who wrote a treatise on the limits of equitable powers. As Sandefur noted, the reason for limits is “because these powers can make a judge a king of his or her own little dominion.” For now, at least, this judge has been dethroned.
Naomi Schaefer Riley is a senior fellow at the American Enterprise Institute and at the Independent Women’s Forum.