Legendary Child Rights Litigator Staffs Up to Storm the Big City

Marcia Lowry new York City
Marcia Lowry speaks at New York’s Plaza Hotel during a Children’s Rights Benefit honoring hip-hop impresario Kasseem “Swizz Beatz” Dean. Courtesy Children’s Rights

Marcia Lowry, the crusading child welfare attorney, works out of an office on Hardscrabble Road. She didn’t name this leafy suburban New York lane, but it suits her reputation: The slew of big-ticket settlements she’s secured against large foster care systems made her one of the nation’s most respected, winning and – in some quarters – loathed attorneys for vulnerable youth.

Now, thanks to significant new funding from an anonymous Tulsa-based foundation, her small legal aid firm A Better Childhood is hardscrabble no more. Lowry would not disclose the funder, or the amount, but said it will allow her to more than double the organization’s staff and open an office in New York City.

“You still see news stories constantly about problems at child welfare agencies, and there is still a need to more clearly define constitutional rights for children. And that’s what we are going to try to do,” Lowry said. “We plan to bring new cases to try to more fully develop those constitutional principles.”

Lowry rose to prominence in the early 1970s as the lead plaintiff’s attorney in an infamous legal fight over the rights of foster children. Then with the ACLU, she represented a group of New York youth led by Shirley Wilder, a 13-year-old Protestant African-American who had to shuttle between abusive institutions because higher-quality Catholic and Jewish agencies refused to serve her.

The critically acclaimed 2001 book The Lost Children of Wilder cemented the case’s stature even while painting a dispiriting picture of meager system improvements it produced. By then, Lowry had left the ACLU to found the organization Children’s Rights, continuing to pioneer a strategy of high-profile, class-action suits against state and city child welfare systems. It’s hard to say whether those suits — in Milwaukee, Atlanta, New Jersey, Oklahoma, District of Columbia and New York City, among others — earned her more detractors or supporters.

Nina Bernstein Marcia Lowry New York Times
An acclaimed 1999 book chronicled Lowry’s first major case in the early 1970s, when religious and racial discrimination was still “the woof and weave of the city’s foster care system,” as the author once put it.

“If you are the one who points out the emperor is not wearing clothes, you aren’t invited to be the emperor’s wardrobe consultant. Marcia doesn’t shy away from saying the emperor’s naked,” said Dr. Richard Gelles, a sociologist and the former Dean of the School Social Policy and Practice at the University of Pennsylvania. He has served as an expert witness for several of her cases.

While the Wilder suit pushed constitutional boundaries, Lowry’s recent cases have made narrower points about systems’ failures to meet guidelines in federal legislation like the Adoption and Safe Families Act (ASFA) — which Gelles helped write — or under state laws. The resulting settlements, say Lowry’s (and ASFA’s) many staunch critics, put far too much emphasis on fixing foster care and finding permanent homes for foster youth, instead of expanding support for struggling biological parents in low-income minority communities that see a disproportionate number of children placed in foster care.

“I am sad to hear the news of [A Better Childhood’s] expansion. Through litigation Lowry has enabled the destruction of American families,” said Martin Guggenheim, a co-director of New York University School of Law’s Family Defense Clinic, and a former litigation partner with Lowry at the ACLU. “She is oblivious to the reality that most children in foster care shouldn’t be in there in the first place. She ends up braising a state like New York for receiving an ‘F’ grade in permanency — for not destroying families in order to place them with a new family permanently — with the speed she believes children deserve.”

Lowry acknowledges her thinking has shifted over decades of suing agencies, but rejects that her work subverts a recent movement to expand prevention programs for at-risk parents.

“Prevention is really important, but people forget there is no legal right to prevention services except under some state laws. You need a legal hook, and children in foster care have a legal hook. That’s a fact of life,” she says. “I don’t think anybody knows how to bring a lawsuit simply on behalf of poor people in society. You can work on the particular issues, and that’s what we’re doing.”

She plans to file for class action certification in her organization’s case on behalf of 19 foster youth against New York City and State in the fall. The Administration for Children’s Services, the city’s child welfare agency and one of the defendants in the suit, declined to comment.

The debate over using class action litigation to reform child welfare systems has simmered in recent years. The influential Center for the Study of Social Policy released a comprehensive review in 2012, concluding that only certain kinds of suits produce durable change. Jerry Milner, the Trump-appointed head of the federal Children’s Bureau, weighed in on the issue this week on the American Bar Association’s website, describing his experience implementing a class-action settlement in Alabama (Lowry was not involved in that case):

The nature of the litigation and resulting consent decree which was atypical of most state child welfare settlements, brought many positive changes for children and families. This was largely because the plaintiffs sought something more than a mechanical consent decree that might have led to counting widgets rather than achieving real changes.

A Better Childhood plans to file suits against four to six jurisdictions nationwide in the next five years, according to Dawn Post, who will start as the organization’s deputy director next week.

“I’ve seen the need for systemic change that impacts more children than I can through taking individual clients, so having the chance to learn and work with someone like Marcia is an amazing opportunity,” Post said. She was most recently a borough co-director for another New York City legal aid firm, the Children’s Law Center, and a frequent advocate on permanency issues, especially around adoption.

Lowry will hire three more attorneys and support staff in the coming months, says a job posting on the Harvard Law School website. “The work will be limited only by our own imaginations and legal skills,” reads the ad.

According to recent tax filings, A Better Childhood’s revenue for 2016 was just over $640,000, with at least $200,000 going to Lowry as compensation. Local governments the organization has successfully sued have paid for most of the legal work, according to Lowry. Only a single donor is listed on the nonprofit’s tax return, and it is listed as: “Restricted.”

“You can ask but I won’t answer,” said Lowry when asked about her organization’s new funding source. The new benefactor makes most of its donations anonymously, she added, noting that the funder approached her about pitching them.

“Marcia Lowry’s career is evidence of the power of a single visionary to bring about transformational change for some of our nation’s most at-risk children who have been neglected and abused,” reads a statement from the funder, which Lowry passed along to The Chronicle. “We are honored and humbled to be partnering with her and are confident that thousands of our country’s abused and neglected children will have better lives and futures as a result.”

Lowry created A Better Childhood soon after leaving the organization Children’s Rights in 2014, and said her departure was due to a desire to litigate more and manage less. Children’s Rights did not return calls and e-mails for comment.

The chairman of A Better Childhood’s board, a Tulsa-based oil and gas attorney Fred Dorwart, had previously served on Children’s Rights’ board, joining after the organization filed a class-action suit against the State of Oklahoma. He confirmed that A Better Childhood’s new anonymous donor was a private foundation in Tulsa, though not the multibillion-dollar George Kaiser Family Foundation, which he also sits on the board of.

Writing to The Chronicle on behalf of A Better Childhood’s board, Dorwart said:

“We are excited that an anonymous donor has recognized the important work Marcia and A Better Childhood are doing in foster care reform litigation. With this funding, A Better Childhood is now able to expand its efforts and replicate its successes in those additional areas where our less fortunate children so badly need representation.”

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Michael Fitzgerald, New York Editor, The Chronicle of Social Change
About Michael Fitzgerald, New York Editor, The Chronicle of Social Change 105 Articles
New York Editor for The Chronicle of Social Change. Reach him at mfitzgerald@chronicleofsocialchange.org or follow on Twitter at @mchlftzgrld.