By Stephen Smoot
In 2018, Raylee Browning was removed from school by her parents who expressed the desire to homeschool her. The eight year old subsequently died of abuse and neglect with child advocates proposing a law that would prevent those under investigation from Child Protective Services from removing children from school. From 2019 to today, a bill has run in her memory.
For what West Virginia Metro News reported, the final 48 minutes of the regular session of the West Virginia State Legislature debated the bill, which did not pass.
This op-ed will not take a stand on whether the bill should have been passed or not. Many will speak on that, one way or the other. Debate over Raylee’s Law instead will serve here as a prime example of how to break down how and why a State Legislator chooses to vote one way, the other, or sometimes not at all. Knowing how an elected official makes decisions is key to understanding the outcomes.
Sure it’s easy and fun to ridicule and bash elected officials, but sometimes it’s better to understand.
First, almost every member of the West Virginia State Legislature, regardless of whether Democrat or Republican, goes there for the right purposes and to do the right thing. They sincerely wish to do right by their people, their district and the state. Both parties have different visions of how to do that. Each party has factions with different visions on how to do that. No individual comes with the precise same vision as any other.
They each bring their own priorities based on their experiences and the stated needs of their district. They each have to face the reality that on issues with which they have little familiarity; they will drink from a firehose to try and figure out the best path forward. Some will rely on more knowledgeable colleagues, others will tap the expertise of friends in business, think tanks, chambers of commerce, social service agencies, or others.
And they do not have the luxury that every citizen has of considering issues independently of anything else. In a State Legislative session, everything is linked through the limited resources of time allotted and money budgeted.
But some issues, like Raylee’s Law, go far beyond that. They call on a Legislator to examine the information, put it next to his or her thought process, and make a judgment call with real consequences regardless of the choice made.
Child advocates have the emotion of the issue on their side. Could Raylee’s life have been saved had she been at public school? Maybe. She would have been under the supervision of mandated reporters all day long who could have perhaps discerned her abuse and would have reported it to Child Protective Services. Or maybe not.
Homeschool advocates point out, rightfully so, that CPS workers sometimes go farther than the law and ethics permit. Their mission of protecting children can push them toward overstepping bounds. In 2015, the West Virginia Law Review published “Lifting the Burden: Protecting Parental Rights in West Virginia.” It shared that federal laws concerning child protection by government action allowed that “it is possible to terminate a parent’s parental rights on the basis of past laws alone, without any current evidence showing abuse or neglect to the child in question.” It later added that “there is a risk that the State will seek to proceed with termination rights without satisfying the constitutionally protected procedural safeguards requiring states to carry the burden of presenting clear and convincing evidence to prove termination is necessary.”
Additionally “the application by some lower courts in West Virginia of the substantive provision of the West Virginia Child Protective Services Act has resulted in unconstitutional violations of their substantive due process rights, which, coupled with procedural deficits . . . create extremely difficult hurdles for parents to overcome for parents who have lost parental rights in the past, but who may pose no risk to their later-born children.”
Translating from legalese, this partly means that the same gray area in the law that can allow for CPS workers to act decisively can also lead to CPS worker abuses that can cause children significant trauma.
This situation describes a number of families in West Virginia who have had members “get clean” and stay that way, but still face challenges such as poverty, dysfunction, and other aspects of life in economically challenged households. Many of these may present as neglectful to those who have only lived middle and upper class lives, but are actually honest good efforts by parents with limited resources whose children are still happy and thriving.
Another factor to add in lies in the potential for abuse and neglect of children in the school system itself.
One should remember that the vast minority of educators and school staff commit offenses against children, on or off the job.
Headlines about that small number of malefactors, however, continue to share disturbing information. Just last week, the Grafton High School band director was arrested and charged with failure to report the sexual assault of a student. Berkeley County has also struggled with special education aides abusing disabled children.
A New York City teacher just last week was caught by a parent who read their child’s phone texts. She had groomed him with tales of her bad marriage, lured him into a sexual relationship, then cruelly tried to manipulate him into continuing by threatening to kill herself if he broke it off. He dealt with this by himself until parents found the messages. A Mineral County teacher and coach was arrested this year for filming pornographic videos with underage students in both Mineral and Grant counties.
In Berkeley County, an entire school was declared unfit. Martinsburg North Middle School not that long ago had direct intervention from the State because the administration had lost disciplinary control of the entire school.
While those problems sound epidemic, remember that almost all teachers have zero desire or inclination to harm a child in any way and the same can be said of parents. School systems in West Virginia generally do the best they can to deliver the best possible education to students in safety and security. It’s as difficult to identify an abusive-minded teacher as it is to identify an abusive-minded parent.
These realities, however, leave the Legislator and Legislature evaluating whether or not to vote for Raylee’s Law a muddy set of circumstances from which to make a decision.
Many said of Raylee’s Law “if it protects one child, it’s worth it,” which is a powerful and emotional appeal, but a poor foundation of sound policy. Wise Legislators will move past emotional appeals and consider the topic from the stance of reason, wherever reason may take them. Absolute statements sound clean and applicable in every instance, but close examination tends to reveal ways in which blanket applications can harm more than help. Sound policy demands that a person rendering judgment on it consider its impact in all possible ways.
A wise State Legislator always considers the “law of unintended consequences” when approaching a major decision. What are possible negative impacts or harms that could occur from passing this act? Would those impacts overshadow the potential good from it?
At times, the cumulative impact of negatives outweighs any benefit brought by the act. The West Virginia State Legislature repealed the open high school student-athlete transfer rule that it passed in recent years for this very reason. No one foresaw that it would force the cancellations of entire athletic seasons when student-athletes followed the allure of the big city. Whatever benefit it brought was deemed to be outweighed by the damage caused, damage to student-athletes and schools that cannot be undone.
A conscientious State Legislator must, when looking at Raylee’s Law, examine what condition would do the most to protect and the least to harm, children. No human institution is free from making mistakes or employing people who abuse, rather than respect, their power. It’s generally easiest also to use one’s power to abuse those who have little power themselves.
Parents have the potential to neglect or abuse. School employees have the potential to neglect or abuse. CPS workers have the ability to run roughshod over others with power. These are not truths that one enjoys considering, but all are truths and cannot be set aside.
“Dilemma” has very specific meanings. Christopher Cowley from the Department of Philosophy of the University of Bristol, notes that making a dilemma-based decision often involves “inescapable moral wrongdoing.” This means that one must make a decision that will have the potential to create harm regardless of the choice. He notes that “even a good person is forced to choose a wrong.”
As a State Legislator, the type of dilemma that he or she faces comes from role responsibility, as Cowley states. He or she who “is a public official with the duty to promote the interest of the city he runs and the citizens who inhabit it.” That can also lead to difficulties in choices because the interest of the collected city, state, or nation may conflict with the interest of one or more large groups of citizens, each of whom thinks they have the moral high ground.
It is as easy for most members of the public to quickly condemn an elected official for the same reason one can easily condemn a quarterback for a decision on the field that led to a good outcome.
Most observers know a little bit about how the government, or a football offense, works. Very few have served in elected office or played quarterback. The real knowing of what they must consider and weigh before making major decisions, the soul searching, the agonized examination of all points of view, is not apparent to most. It happens on the drive home from Charleston, or in discussions with close colleagues. Or during sleepless hours at night.
The higher the stakes, up to and including the life of a child or the well-being of a family, the more stress and distress the State Legislator quietly feels.
There is no easy answer here, no direction to suggest they go to find solutions that will bring perfect results. There’s no neat present of insight here wrapped up with a bow. That’s life. They have to make their choices as best they can and hope for the best possible outcomes from them. They should, however, receive grace when they do make the decision. They had the courage to run for office, stand in front of the state, and make decisions in its best interest.
Whether the Legislator’s decisions are good, bad, or ugly, the intent behind them is almost always to do as right as they can. One may disagree with the decision and still find the decision-maker honest.
President John F. Kennedy stated it best by mangling the text of an obscure Spanish poem. He noted that:
Bullfight critics row on row
Fill the enormous Plaza de Toros
But only one is there who knows
And he is the one who fights the bull
