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Texas Foster Kids Class Action Suit Re-Certified

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By Brett Snider, Esq. on September 03, 2013 4:03 PM

A group of more than 12,000 abused foster children were re-certified as a class in a Texas federal court on Tuesday, giving the case a green light to proceed to trial.

The case is being spearheaded by Children's Rights, a New York-based group who presented evidence to the court in January about the abysmal state of the child care services in Texas, reports The Dallas Morning News.

Since the plaintiffs were originally certified as a class back in 2011, why has nothing happened in two years?

Walmart and Abused Kids

This action, currently captioned Stukenberg v. Perry, had come before U.S. District Court Judge Janis Graham Jack originally in 2011, and she had granted the plaintiffs' representatives for abused children across the states request to be certified as a class, reports Courthouse News Service.

Unfortunately, around the same time, the U.S. Supreme Court was busy cogitating on a landmark class action suit against Walmart, one that contained literally millions of current and former employees in its class. Ultimately, SCOTUS decided that the Walmart class was too big to comport with the federal rules on class actions, leaving the 1.5 million women to consider suing the wholesale behemoth on their own.

The Walmart women weren't the only ones left in the lurch. The Fifth Circuit denied the foster kids class certification in light of Wal-Mart v. Dukes because 1) the class wasn't cohesive enough and 2) a single injunction or declaratory judgment couldn't provide them relief.

So What Changed?

In her ruling on Tuesday, Judge Jack granted class certification to the general class of foster children as well as three distinct subclasses. The key was a surprisingly heavy use of 14th Amendment substantive due process language, with Judge Jack asserting that the "unreasonable risk of harm" itself faced by the class is enough for the claim to be actionable.

Overworked caseworkers who could not adequately protect these kids from this risk of harm were essentially a failed safety system. Using this analogy, since prisoners were entitled to sue for a fire safety system before actually burning alive in a fire, unharmed foster kids could sue as well.

Bottom Line

This case was almost a casualty of the insidious effects of Wal-mart v. Dukes, but some liberal use of substantive rights language was able to give these kids a chance for recovery.

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