Professor Anna Arons’s article, Family Regulation’s Consent Problem, has been accepted for publication by Columbia Law Review. It is available now on SSRN.

The article looks at the central role of so-called “consent searches” of families’ homes in family regulation (child welfare) investigations. It demonstrates how under existing constitutional doctrine, the tactics that state agents use to extract consent from parents for these searches are often unduly coercive and therefore unlawful. More broadly, it considers reform efforts beyond constitutional litigation that could better protect marginalized families from state overreach and highlights the importance of distinguishing between reforms that attempt to shore up consent as a justification for state searches and reforms that take aim at the searches themselves.

Here is the abstract:

The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private parts of their lives.

This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on interviews, agency materials, and other primary sources, it shows that common family regulation investigation tactics render consent involuntary and the ensuing searches unconstitutional. And yet, it argues, the Constitution is not enough. Though constitutional litigation could lead to a tangible increase in privacy for families, the Constitution offers thin protection from government surveillance for race–class subjugated communities. Instead, reformers ought to reject the consent paradigm and focus on state legislation cabining searches in family regulation investigations.

The Article makes three central contributions. First, it offers a comprehensive descriptive account of the underexamined role that consent searches play in the family regulation apparatus. Second, it establishes the unconstitutionality of routine family regulation investigative practices, building out the Fourth Amendment framework for family regulation investigations. Finally, the Article distinguishes between reforms aimed at limiting consent as a legal justification for searches and reforms aimed at limiting searches, no matter their justification. Consent-focused reforms legitimize and leave intact the search apparatus. Thus, the Article shows, reform must contend squarely with searches and not merely consent, both within the family regulation system and across the carceral state.