Constitutional challenge to new childcare law fails at appeals court level

By Joe Forward, Legal Writer, State Bar of Wisconsin

April 24, 2012 – A state appeals court recently upheld a law that prohibits those convicted of “fraudulent activity” involving public assistance from ever holding a childcare provider license, despite the argument that the law is not rationally related to the goal of protecting children.

In 2010, the Department of Children and Families revoked Alma Brown’s license to run a childcare center providing care to four or more children under the age of seven, citing a law that bars issuance or continuation of such licenses to individuals convicted of certain crimes.

The law, 2009 Wisconsin Act 76 (effective February 2010), prevents anyone convicted of fraudulent activity related to public assistance benefits from ever holding the childcare license, regardless of whether the individual can demonstrate that he or she has been rehabilitated.

In 1991, Brown was convicted for failing to report income on food stamp applications, despite working at Marshall Field’s during the holiday season in four consecutive years starting in 1986.

That conviction served the basis of the Department’s 2010 notice of revocation to Brown, who was running a childcare center in Milwaukee. Brown appealed. The Division of Hearings and Appeals upheld the revocation, and the circuit court affirmed.

In Brown v. State of Wisconsin Department of Children and Families, 2011AP1350 (April 24, 2012), the District I Wisconsin Court of Appeals affirmed the circuit court despite Brown’s argument that the law violated her due process and equal protection rights.

Brown argued that the law did not rationally relate to the government’s interest in protecting children. Specifically, she said there is “no rational basis for believing that those convicted of nonviolent financial crimes pose any real threat” to children.

“Regardless of whether the law is rationally related to the goal of protecting children, the law is rationally related to the legitimate purpose of prohibiting individuals who dishonestly benefitted from government welfare in the past from obtaining government funding in the form of childcare subsidies,” wrote Judge Patricia Curley. “The State has a legitimate interest in not providing taxpayer funds to those who have previously defrauded the government.”

The appeals court rejected Brown’s argument that, as applied to her, the law is unconstitutional because it fails to consider that she can now be trusted with childcare funds.

“While Brown’s particular situation – a single welfare conviction for events occurring more than two decades ago – is unfortunate, she points to no evidence that she was treated differently from any similarly-situated childcare provider whose license was revoked under the new law,” Judge Curley explained.

The appeals court rejected Brown’s argument that she is excluded from an entire profession in violation of her due process rights, noting that Brown can still provide childcare, just not under the circumstances requiring the specific childcare license at issue in the case.

“Rather, she has only been excluded from operating as a licensed childcare provider under Wis. Stat. § 48.65,” Judge Curley explained.