Court: Kids need sleep, soap

The cruelty of the Trump administration’s immigration policies has rarely been captured as powerfully as by the spectacle of a government lawyer contending that detained children do not necessarily need soap. The appeals court that heard that argument mercifully laid it to rest this week by affirming the government’s obligation to treat young, vulnerable migrants in its custody with basic humanity.

“Assuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleepdeprived,” Judge Marsha S. Berzon wrote on behalf of a Ninth Circuit U.S. Court of Appeals panel in San Francisco, “are without doubt essential to the children’s safety.”

The case concerned the failure of President Trump’s Border Patrol to abide by a 1997 settlement, known as the Flores agreement, that sets standards for the detention of migrant children. The agreement limits the duration of their detention, requires that they be held in the “least restrictive setting” practicable, and mandates that conditions be safe, sanitary and “consistent with ... concern for the particular vulnerability of minors.”

In 2017, when the Border Patrol was beginning to detain more migrant children under the administration’s family separation policy, Los Angelesbased U.S. District Judge Dolly Gee ruled that the government was violating the Flores agreement. Gee found that children were being deprived of sleep due to “constant lighting,” “cold temperatures,” crowding and a lack of bedding other than thin polyester foil on concrete floors. She also found that they were denied access to enough edible meals, adequate drinking water, clean cells and bathrooms, and hygienic products such as toothbrushes, soap and towels. The judge noted that although Flores does not specifically mention soap or toothbrushes, such necessities are required to comply with the settlement’s standard of “safe and sanitary” conditions.

Rather than acknowledge and address the failure, however, the administration argued that the judge had gone beyond the Flores requirements by finding that the government must furnish migrant children in its custody with soap. The appellate judges were rightly taken aback. “It’s within everybody’s common understanding that, you know, if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary,” Circuit Judge A. Wallace Tashima said during a June hearing on the appeal. “Wouldn’t everybody agree to that?”

But Justice Department lawyer Sarah Fabian, who argued the administration’s case, would not. “Well,” she replied, “I think ... there’s fair reason to find that those things may be part of safe and sanitary.”

“Not may be,” Tashima interjected, “are a part.”

The circuit court’s ruling ultimately showed little sympathy for the government’s position. “We emphatically disagree,” Berzon wrote.

That the government disputed such a matter of fundamental decency before one of the highest courts in the land marks a shameful chapter of our history that can’t conclude soon enough.