By Alida Weidensee*
Imagine yourself as a teenager. You wake up in the middle of the night to adult strangers in your bedroom. Maybe there are police officers too. These strangers force you to go with them, telling you that there is “a choice to do this the easy way or hard way.” You might look to your parents, only to be ignored. Or maybe your parent is an active participant in the process. This paragraph describes a process known as “gooning,” which is sometimes employed to take teenagers to institutional placements. As survivors note, gooning is just the beginning of the cruel practices and abuse that can occur within the “wilderness-based programs, residential treatment centers, therapeutic boarding schools, group homes, boot camps, and faith-based academies” that form the troubled teen industry.
Dating back over 50 years, the troubled teen industry gained speed with the support of conservative politicians who pushed a narrative of individual responsibility for social ills. Despite being a frequent subject of controversy, the troubled teen industry nets billions in public dollars annually.
Teens may be referred to programs through many pathways and for reasons varying from addiction to sexual orientation. Notably, even teens referred for different reasons may end up in the same programs, which are not always well-suited for their specific needs. For example, a Government Accountability Office (GAO) investigation found that one referral service “recommended the same Missouri boot camp to three different fictitious parents with three fictitious children having very different problems.” Once teens are enrolled in these programs, they may be met with an untrained or unqualified staff.
However, the problems in the troubled teen industry extend beyond a lack of staff training. Breaking Code Silence, an advocacy organization devoted to survivors, decries the abusive treatment of teens within the industry. The stories linked at the beginning of this blog post come from survivors and are posted on the organization’s webpage. Their stories are not isolated. The GAO “identified thousands of allegations of abuse, some of which resulted in death, at residential programs across the country and in American-owned and American-operated facilities abroad.”
Many of the problems in the troubled teen industry are connected to a lack of regulation and oversight. While the federal government may oversee facilities that receive federal funds, private facilities can often escape both federal and state oversight. Furthermore, these programs lack a federal definition. This lack of definition allows facilities to get around licensure rules; if a state requires a particular type of facility to be licensed, the facility can get around the rules by claiming to be a different type of program. Without federal legislation, facilities are held to widely different standards depending on the state.
There have been both federal and state efforts to regulate the troubled teen industry. Oregon, California, and Utah are examples of states that have attempted some level of reform. Federal attempts to regulate the industry, justified in part by the theory that transporting teens over state lines affects interstate commerce, have included plans to create minimum standards in covered programs. Most recently, Breaking Code Silence, along with representatives Ro Khanna, Rosa DeLauro, Adam Schiff, and Senator Jeff Merkley, advocated for the Stop Institutional Child Abuse Act. The legislation would have created a Bill of Rights for youth in these facilities. Similar to statutes providing for a Foster Children’s Bill of Rights in certain states, the Youth in Care Bill of Rights is important because it aims to empower the children at the center of the industry. However, attempts at a federal solution have largely stalled.
Because the efforts at the federal level have been halted, state laws may be the most feasible option for reform. California’s Continuum of Care Reform was signed into law in 2015 with the specific goal of reforming the foster care system. The reform shifts away from long-term congregate care and toward shorter-term interventions in facilities that must “meet higher standards of care, be accredited, and be able to deliver or arrange for a set of core services including the mental health services that children need.” A 2022 memo from the County Welfare Directors Association notes that although issues remain after the reform, “the number of licensed congregate care facilities (group homes) has been reduced by nearly 50 percent, and counties have reduced placements into congregate care settings by 45 percent.”
In a similar vein, following allegations of abuse in 2020, Oregon pulled children from out-of-state facilities and required future placements to meet Oregon’s regulatory standards. As of July 2022, the Oregon Child Welfare Division has maintained its refusal to place children with facilities out of state. Oregon has also passed a law aimed at regulating how teens are transported to facilities. While these laws may be a step in the right direction, they leave a significant gap in coverage. Parents may still send their teens to out-of-state facilities which do not adhere to Oregon’s standards.
In 2021, Utah passed SB-127 with support and advocacy from Breaking Code Silence and Paris Hilton, who attended a Utah boarding school as a teen. The law defines different types of residential care facilities, creates requirements for staff background checks, directs the creation of minimum health and safety standards, and provides for quarterly inspections, including at least two unannounced inspections each year. Section 5 of the law restricts the use of strip and cavity searches and bans practices that are “cruel, severe, unusual, or unnecessary” including disciplinary practices which induce pain, which are “intended to frighten or humiliate” the child, or which involve “withholding personal interaction, emotional response, or stimulation.” The same section mandates the creation of suicide prevention policies. Critical for empowering the children themselves, Section 2 requires facilities to post information on how to submit complaints to Utah’s Office of Licensing.
However, even when states have attempted to regulate these facilities, loopholes limit the effectiveness of oversight. In 2019, Montana passed a bill that included licensing and supervision requirements. Section 2(6)(b) contained several exceptions to the licensing requirements. Montana later debated a bill that would have ended the licensing exception for “an organization, boarding school, or residential school that is an adjunct ministry of a church incorporated in the state of Montana.” This change was notably minor; many other programs, including “youth camps with a focus on recreation and faith-related activities” and “residential training or vocational programs with a sole focus on academics” remained exempt. Lawmakers, citing reluctance to infringe on religious freedom by increasing monitoring requirements of religious schools, ultimately tabled the bill.
This discussion makes clear that states vary significantly in both approaches to reform and levels of success. These state laws provide a roadmap of the advantages and pitfalls of different types of reforms. States looking to reform the industry should consider what they can do for both children placed by the state and children who are placed by a parent. Similar to California and Oregon, states should consider reducing the use of congregate care in state placements where feasible, and refusing to place teens in out-of-state facilities unless those facilities meet the states’ own standards. These efforts should be paired with legislation like Utah’s SB-127, which has the potential to protect both children placed by the state and those placed privately by creating minimum standards and reporting requirements. Most importantly, any effort at reform must include input from survivors and should empower the people that the industry is meant to serve: teens.
However, legislation at the state level will likely not be enough to curb abuse within the industry. As long as these facilities are allowed to operate in states with less oversight, parents may continue unknowingly to send their children to abusive facilities. This patchwork of legislation hurts vulnerable teens. Whether lawmakers will find the political will to help them remains an open question.
*Alida Weidensee is the Lead Note & Comment Editor for the Journal of Law & Inequality Vol. 41