Law: Poor Joshua!

Joshua DeShaney is paralyzed and profoundly retarded, the victim of brutal pummelings at age four by his father. Joshua, now nine, is also the victim of inaction by Wisconsin's Winnebago County department of social services. The agency failed to remove the child from his divorced father's custody despite continual reports of abuse for nearly two years, repeated hospitalizations for serious injuries, and regular observations by a caseworker of suspicious bumps and lesions. Joshua's father was convicted of child abuse in 1984 and paroled from prison after less than two years. Last week, in a ruling that stunned children's rights advocates around the country, the U.S. Supreme Court voted 6 to 3 to absolve Winnebago County of constitutional responsibility for Joshua's fate.

"A state's failure to protect an individual against private violence," declared Chief Justice William Rehnquist, was not a denial of the victim's constitutional rights. "While the state may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." The majority's ruling provoked an emotional dissent from Justice Harry Blackmun. "Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly and intemperate father, and abandoned by ((county officials)) who placed him in a dangerous predicament," he wrote. "It is a sad commentary upon American life and constitutional principles."

Government child-welfare agencies expressed relief over the decision. "A contrary ruling would have seriously affected programs and budgetary priorities," explained Benna Ruth Solomon of the State and Local Legal Center in Washington. For child advocates, the opinion was deeply troubling. Said James Weill of the Children's Defense Fund: "It's part of a line of decisions in which the court has indicated significant hostility to legal protections for children." Suits against agencies may still be filed in some state courts, but local laws often permit little or no recourse. In Joshua's case, a Wisconsin statute limits damages to $50,000 -- less than the cost of a year's medical care for the tragically battered youngster.