Legislators and the state Department of Children and Families may have gotten positive headlines when creating a law that allows the state to permanently revoke child care provider licenses based on a wide range of offenses.
But 2009 Wisconsin Act 76, which went into effect Feb. 1, may not be constitutional.
Legal Action of Wisconsin has filed injunctions in Dane County Circuit Court arguing that the state should stop revoking day care provider licenses because of the new law’s questionable provisions.
Although the new background check law was passed as a measure to curb alleged fraud in the taxpayer-subsidized Wisconsin Shares program, it applies to all licensed or certified day care providers, as well as some child care employees and those who live with in-home day care providers. Licenses or certifications can be permanently revoked due to a wide range of minor violations the child care provider committed long before he or she ever became licensed to care for children.
Child Molesters Have More Rights than Nonviolent Offenders
Attorney Jill Kastner of Legal Action of Wisconsin said that the state is depriving child care providers of their right to due process under the U.S. Constitution by permanently revoking licenses without allowing the license holder to contest or appeal the revocation.
“People should have the right to redeem themselves to show that they have been rehabilitated,” Kastner said.
What’s more, the penalties in the new law are arbitrary and inconsistent, the court documents allege.
Minor, nonviolent offenses such as food stamp fraud committed decades earlier when the person was a young adult can permanently bar a provider from holding a license.
But more serious offenses directly relating to the welfare of a childfor example, child molestation, aggravated battery and giving alcohol to a minorhave more lenient penalties. These offenses lead to a five-year ban from holding a license, at which point the former license holder can argue that he or she has been rehabilitated and should be re-licensed.
“The people the new law affects aren’t hardened, dangerous criminals,” Kastner said. “Under the old law those people were already excluded from getting licenses. Under the new law if you’re a child molester you still have the right to rehabilitation [to restore one’s license]. But if you are somebody who bounced too many checks, you don’t have the right to a rehabilitation hearing.”
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The Department of Children and Families (DCF), which oversees day care licensing throughout the state, did not respond to a request to comment for this article before press time. [UPDATE: Here's DCF's response.]
DCF has 45 days in which to respond to the injunction requests. That time has not elapsed as of this writing.
State Rep. Tamara Grigsby (D-Milwaukee) said she is concerned about the potential lack of due process for day care providers who have been targeted by DCF and is working on legislation to give providers a chance to defend themselves.
“I am currently working on legislation to address the concerns raised by the child care providers in our community who truly deserve a second chance,” Grigsby said in a statement provided to the Shepherd. “After years of providing a good service and quality care to children in our community, some good providers have been disqualified from working in the child care field due to seemingly minor infractions that occurred decades ago. The legislation under development by my office would create a waiver process for certain providers who have been removed from the Wisconsin Shares program, but have demonstrated an ability to provide quality child care. This waiver would provide those individuals with a potential second chance at providing that service and I am hopeful that it will pass by the end of this legislative session.”
30-Year-Old Misdemeanor Leads to Revocation
Legal Action of Wisconsin has filed injunctions on behalf of two day care providers who committed minor offenses decades ago:
n Sonja Blake of Racine was certified as a day care provider more than a decade ago, and no complaints had ever been lodged against her or her child care business.
Yet her license was permanently revoked in January because of an offense she committed 24 years ago.
Blake’s offense? While on welfare in 1986, her then boyfriend (now husband) gave her a car as a gift.
“That same year, I was charged with public assistance fraud for failure to disclose the gift,” she testified in an affidavit. “I went to court and was told that I would be on parole for two years and had to pay back some of the welfare money I received.”
Blake complied with the court order, and later was certified to become a child care provider.
“Today, I am a respected business owner in my community and a taxpayer in Racine County,” Blake testified.
Yet the state revoked Blake’s license based on that old offense and told her that she would not be able to appeal her revocation. She has been forced to shut down her business and the revocation will affect her ability to find another job, since it will appear on any background check conducted by a prospective employer.
“DCF knows that Ms. Blake is not a danger to children,” Blake’s court papers argue. “Her 24-year-old conviction does not make her any more likely to harm a child or to defraud the child care system. Yet under the new law, Ms. Blake is treated more severely than someone who committed repeatedly acts of sexual molestation against a child or committed felony battery.”
n Leontyne Davidson of Milwaukee was told that her license would be revoked because of a misdemeanor on her record that dates back to 197931 years ago. Davidson had failed to inform the state’s food stamp program that she landed a full-time job within 10 days, as required by the program. Davidson repaid the amount she was purportedly overpaid, was charged with a misdemeanor, and has not committed any offenses since then.
Yet DCF informed Davidson in January that her license would be permanently revoked because of that misdemeanor and that the new law did not provide her with the right to challenge the revocation.
Davidson is now contesting that action.
“The Due Process Clause of the United States Constitution requires a hearing before Ms. Davidson is deprived of her protected property interest in her caregiver license,” Davidson’s court documents state. “At the very least, she is entitled to a full hearing before that deprivation is made permanent to challenge both the factual and legal basis of DCF’s action. That due process should include, at a minimum, the ability to challenge the presumption that her 30-year-old youthful offense somehow means she is no longer qualified to be a caregiver and the ability to show that she is not a danger to the children within her care at a contested hearing.”
Is This Fair?
Davidson’s court documents also argue that child care providers are being held to a higher standard than those who work in other professions. For example, doctors and lawyers who have been convicted of crimes have the opportunity to show that they’ve been rehabilitated. IndeedMichael Gral’s law license was suspended for three years when he was convicted in federal court as part of a scheme to defraud Bielinski Bros. Builders. Gral served time in federal prison and on probation, and paid $2.7 million in restitution. On Tuesday, his law license was reinstated by the state Supreme Court.
But unlike Gral, a child care provider who committed a nonviolent misdemeanor decades ago can have his or her license permanently revoked with no ability to argue for reinstatement.
Although the supporters of the new lawincluding DCF Secretary Reggie Bichasay that it will help to improve safety in child care programs, Kastner disagrees.
“Unfortunately the new caregiver law will do nothing to protect the safety of children,” Kastner told the Shepherd. “It wasn’t even designed to do that. The only thing it was designed to do was to marginally help the pocketbook of the state, which it doesn’t do correctly, either. As opposed to shifting the taxpayer money to their auditing process, and properly doing that, they have just taken licenses away, almost as a means to look like they did something.”
UPDATE:DCF's Stephanie Hayden responded to my questions after we went to press.
